CORE COURSE
208 LEGAL METHODS & LEGAL THEORIES (Jurisprudence)
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CONTENTS
208 Legal Methods & Legal Theories (Jurisprudence)
---> Note : To get a better over view of evolution of jurisprudence, fresh students may
find it better to begin with reading first question of Module-1 followed by first question of
Module-2.
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GO TO CONTENTS.
MODULE-1 QUESTIONS :
Explain in detail the concept of "Jurisprudence" and its importance. (Apr-2012,
Mar-2014, Mar2015).
State the meaning, nature as well as values of jurisprudence in detail. (Oct-
2012, Apr-2013).
What is Jurisprudence? Discuss in detail the nature, value and importance
Jurisprudence. (Apr-2016).
Explain in detail the meaning of Law and its various kind. (Apr-2012, Mar-2014,
Mar2015).
It is towards court and not to the legislation, that we must look in order to asertain
the true nature of law". Explain this statement. (Apr-2016). (Isnt this Salmonds
theory of law?
Explain in detail : Questions of fact and law. (Apr-2012).
Explain in detail : Territorial nature of law and questions of law. (Oct-2012, Apr-
2016).
Explain the relation between Law and Morality.
Explain the relationship between law and justice. (Mar-2014).
Discuss : The function and purpose of law is to provide justice. (Apr-2016).
Discuss in detail : Sources of law: Legislation, custom, Precedents: concept of stare
decisis, Juristic writings.
Explain in detail the meaning of legislation and state the different kinds of
subordinate legislation. (Oct-2012).
Explain in detail the meaning of legislation and its kinds. (Apr-2013).
Explain in detail the meaning and concept of Precedent and Legislation. (Apr-
2012, Mar2015).
Explain the meaning of precedent and its kind in detail. (Oct-2012, Apr-2013, Apr-
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2016).
Explain : Question of Judicial discretion. (Apr-2016).
Explain in detail : Ratio Decidendi. (Apr-2012, Mar-2014, Mar2015, Apr-2016).
GO TO CONTENTS.
MODULE-1 ANSWERS :
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Requirements For Law : The followings are some requirements for the
definitions of law :-
Before the law there is a State.
Before the State there must be a society.
State & society develop a legal order to be followed.
And finally law always has a purpose.
What is Jurisprudence ?
Jurisprudence- Latin word Jurisprudentia- Knowledge of Law or Skill in Law.
"juris" is the genitive form of jus meaning "law", and prudentia means
"prudence" (also: discretion, foresight, forethought, circumspection; refers to
the exercise of good judgment, common sense, and even caution, especially in
the conduct of practical matters).
There is no universal or uniform definition of Jurisprudence. It is a very vast
subject. It is believed that Romans were the first who started to study what is law.
In simple language, "Jurisprudence" is the science, study, and theory of law.
It includes principles behind law that make the law.
Scholars of jurisprudence, also known as jurists or legal theorists (including legal
philosophers and social theorists of law), hope to obtain a deeper understanding of
the nature of law, of legal reasoning, legal systems, and of legal institutions.
Jurisprudence as defined by past scholars :
<include here definitions by all major scholar>
Thomas Holland (born 17-Jul-1835), a British jurist, said Jurisprudence means
the formal science of positive laws. It is an analytical science rather than a
material science.
Holland defined the term positive law. He said that Positive Law means the
general rule of external human action enforced by a sovereign political
authority.
Hollands definition has been criticized on the ground that this definition is
concerned only with the form and not the intricacies.
We can see that, he simply added the word formal in Austins definition.
Formal here means that we study only the form and not the essence. We
study only the external features and do not go into the intricacies of the
subject.
According to him, how positive law is applied and how it is particular is not the
concern of Jurisprudence.
The reason for using the word Formal Science is that it describes only the
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form or the external sight of the subject and not its internal contents.
According to Holland, Jurisprudence is not concerned with the actual material
contents of law but only with its fundamental conceptions. Therefore,
Jurisprudence is a Formal Science.
This definition has been criticized by Gray and Dr. Jenks. According to them,
Jurisprudence is a formal science because it is concerned with the form,
conditions, social life, human relations that have grown up in the society and
to which society attaches legal significance.
Holland said that Jurisprudence is a science because it is a systematized and
properly co-ordinated knowledge of the subject of intellectual enquiry. The
term positive law confines the enquiry to these social relations which are
regulated by the rules imposed by the States and enforced by the Courts of
law. Therefore, it is a formal science of positive law.
Formal as a prefix indicates that the science deals only with the purposes,
methods and ideas on the basis of the legal system as distinct from material
science which deals only with the concrete details of law.
Jos Dias Ferreira (born 30-Nov-1837) and Charles Evans Hughes (born 11-
Apr-1862) believed Jurisprudence as any thought or writing about law rather
than a technical exposition of a branch of law itself.
John Salmond (born 03-Dec-1862) said that Jurisprudence is Science of Law.
By law he meant law of the land or civil law. He divided Jurisprudence into two
parts :
1. Generic- This includes the entire body of legal doctrines.
2. Specific- This deals with the particular department or any portion of the
doctrines. Specific is further divided into three parts :
Analytical, Expository or Systematic- It deals with the contents of an actual
legal system existing at any time, past or the present.
Historical- It is concerned with the legal history and its development
Ethical- According to him, the purpose of any legislation is to set forth laws
as it ought to be. It deals with the ideal of the legal system and the
purpose for which it exists.
Roscoe Pound (born 27-Oct-1870) described Jurisprudence as the science of
law using the term law in juridical sense as denoting the body of principles
recognized or enforced by public and regular tribunals in the Administration of
Justice.
Julius Stone (born 07-Jul-1907) also tried to define Jurisprudence. He said that
it is a lawyers examination of the percept, ideas and techniques of law in the
light derived from present knowledge in disciplines other than the law.
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i) Sources of laws : 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 also 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 analyzing legal concepts, and effort should be made to present them in the
background of social developments and changing economic and political
attitudes.
Importance of jurisprudence :
1. Jurisprudence as a subject has its own intrinsic interest and value because this is
a subject of serious scholarship and research. Research in Jurisprudence contribute
to the development of society by having repercussions in the whole legal, political
and social school of thoughts. One of the tasks of this subject is to construct and
elucidate concepts serving to render the complexities of law more manageable and
more rational. Needless to emphasis that development in theory helps improve
legal practice.
2. Jurisprudence also has an educational value. It helps in the logical analysis of
the legal concepts and it sharpens the logical techniques of the lawyer. The study of
jurisprudence helps to combat the lawyers occupational view of formalism which
leads to excessive concentration on legal rules for their own sake and disregard of
the social function of the law.
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.
3. The study of jurisprudence helps to put law in its proper context by considering
the needs of the society and by taking note of the advances in related and relevant
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disciplines.
4. Jurisprudence can teach the people to look sideways and realize that answers to
a new legal problem must be found by a consideration of present social needs and
not in the wisdom of the past.
5. Jurisprudence is the eye of law and the grammar of law because it throws light
on basic ideas and fundamental principles of law. Therefore, by understanding the
nature of law, its concepts and distinctions, a lawyer can find out the actual rule of
law. It also helps in knowing the language, grammar, the basis of treatment and
assumptions upon which the subject rests. Therefore, some logical training is
necessary for a lawyer which he can find from the study of Jurisprudence.
6. Jurisprudence trains the critical faculties of the mind of the students so that they
can identify fallacies and use accurate legal terminology and expression.
7. It helps a lawyer in his practical work. A lawyer always has to tackle new
problems every day. This he can handle through his knowledge of Jurisprudence
which trains his mind to find alternative legal channels of thought.
8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of
the laws passed by the legislators by providing the rules of interpretation.
Therefore, the study of jurisprudence should not be confined to the study of
positive laws but also must include normative (evaluative) study i.e. that study
should deal with the improvement of law in the context of prevailing socio-
economic and political philosophies of time, place and circumstances.
9. Professor Dias said that the study of jurisprudence is an opportunity for the
lawyer to bring theory and life into focus, for it concerns human thought in relation
to social existence.
10. 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.
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. And jurisprudence is an instrument tool to sharpen/ nurture
law.
GO TO MODULE-1 QUESTIONS.
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GO TO CONTENTS.
Explain in detail the meaning of Law and its various kind. (Apr-2012, Mar-2014,
Mar2015).
It is towards court and not to the legislation, that we must look in order to asertain
the true nature of law". Explain this statement. (Apr-2016). (Isnt this Salmonds
theory of law?
Answer :
Refer :
https://en.wikipedia.org/wiki/Law
http://www.differencebetween.info/difference-between-law-and-justice
http://www.desikanoon.co.in/2012/08/the-nature-of-law.html
https://en.wikipedia.org/wiki/Primary_and_secondary_legislation
http://www.publishyourarticles.net/knowledge-hub/law/difference-between-
supreme-legislation-and-subordinate-legislation/3968/
What is meant by law ?
<Whole of module 2 is on various theories/ schools of law.>
<Following is a brief discussion on law.>
Dictionary.com defines law as :
The principles and regulations established in a community by some authority and
applicable to its people, whether in the form of legislation or of custom and
policies recognized and enforced by judicial decision.
Any written or positive rule or collection of rules prescribed under the authority
of the state or nation, as by the people in its constitution.
The controlling influence of such rules; the condition of society brought about by
their observance.
A system or collection of such rules.
Wikipedia :
Law is a system of rules that are created and enforced through social or
governmental institutions to regulate behavior.
Law as a system helps regulate and ensure that a community show respect, and
equality amongst themselves.
State-enforced laws can be made by a collective legislature or by a single
legislator, resulting in statutes, by the executive through decrees and
regulations, or established by judges through precedent, normally in common
law jurisdictions.
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Laws are actually rules and guidelines that are set up by the social institutions to
govern behavior.
These laws are made by government officials that in some countries are elected by
the public to represent their views.
In simple terms, laws are basically things that a person can and cannot do. It is
enforced by government officials such as police officers, agents and judges.
Laws are ideas that must go through the process of checks, balances and votes in
order for them to become a law. However, the enactment of a law varies based on
the government.
In an autocracy, the leader has the power to pass any law he wishes.
In a democracy, the bill to enact a law must be voted on by the different parts of
the government.
Laws set out standards, procedures and principles that must be followed.
There are various types of laws framed like criminal laws, civil laws, and
international laws.
Laws must be obeyed by all, including private citizens, groups and companies as
well as public figures, organizations and institutions.
Dynamic nature of law :
Law cannot be static. In order to remain relevant, Law has to grow with the
development of the society.
In the same manner, the scope of law also cannot be kept static.
The result is that the definition of law is ever changing with the change in society.
The definition of law considered satisfactory today might be considered a narrow
definition tomorrow. This view has been put forward by Professor Keeton. He said
that
an attempt to establish a satisfactory definition of law is to seek, to confine
jurisprudence within a Straight Jacket from which it is continually trying to
escape.
Austins Theory of Law or Imperative Theory of Law :
Austin said that
law is the aggregate of the rules set by men as political superior or sovereign to
men as politically subject. In short, Law is the command of sovereign. It imposes
a duty and duty is backed by a sanction.
According to Austin, there are three elements in law :
a. It is a type of command
b. It is laid down by a political superior
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c. It is enforced by a sanction
Requests, wishes etc are expressions of desire. Likewise, command is also an
expression of desire, BUT it is given by a political superior to a political inferior. The
relationship of superior and inferior consists in the power which the superior enjoys
over the inferior because the superior has ability to punish the inferior for its
disobedience.
Austin further said that there are certain commands that are laws and there are
certain commands that are not laws.
Commands that are laws are general in nature. Therefore, laws are general
commands. Laws are like standing order in a military station which is to be
obeyed by everybody.
Sovereign is a person or a body or persons whom a bulk of politically organized
society habitually obeys and who does not himself habitually obey some other
person or persons. Perfect obedience is not a requirement.
Austins classification of law :
1. Divine Law- Given by god to men
2. Human Law- Given by men to men
a. Positive Laws- Statutory Laws
b. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc.
Merit in Austins Definition :
Not everything is faulty about Austins theory of law. He gave a clear and simple
definition of law because he has excluded ethics and religion from the ambit law.
Thus, he gave a paramount truth that law is created and enforced by the state.
Criticism of Austins Theory of Law :
1. Laws existed even before births of states - The belief that sovereign is a
requirement for law has received criticism by the Historical and Sociological School
of Thought. There were societies prior to existence of sovereign and there were
rules that were in prevalence. At that point of time, there was no political superior.
Law had its origin in custom, religion and public opinion. All these so called laws
were later enforced by the political superior.
However, the above mentioned criticism is not supported by Salmond. Salmond
said that the laws which were in existence prior to the existence of state were
something like primitive substitutes of law and not law. They only resembled
law.
2. Generality of Law- The laws are also particular in nature. Sometimes, a Law is
applicable only to a particular domain. There are laws which are not universally
applicable. Thus, laws are not always general in nature.
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3. Promulgation- It is not necessary for the existence of the law that the subjects
need to be communicated.
4. Law as Command- According to Austin, law is the command of the sovereign.
But, all laws cannot be expressed as commands. Greater part of law in the system
is not in the nature of command. There are customs, traditions, and unspoken
practices etc. that are equally effective.
5. Sanction- The phrase sanction might be correct for a Monarchical state. But for
a Democratic state, laws exist not because of the force of the state but due to
willing of the people. Hence, the phrase sanction is not appropriate in such
situations. Also, there exists no sanction in Civil Laws unlike Criminal Laws.
6. Not applicable to International Law- Austins definition is not applicable to
International Law. International Law represents law between sovereigns.
7. Not applicable to Constitutional Law- Constitutional Law defines powers of the
various organs of the state. It comprises of various doctrines such as separation of
power, division of power etc. Thus, no individual body of a state can act as
sovereign or command itself. Therefore, it is not applicable to constitutional law.
8. Not applicable to Hindu Law or Mohameddan Law or Cannon Law - Personal Laws
have their origin in religion, customs and traditions. Austins definition strictly
excludes religion. Therefore, it is not applicable to personal laws.
9. Disregard of Ethical elements- The moment law is devoid of ethics, the law loses
it colour and essence. Justice is considered an end of law or law is considered a
means to achieve Justice. However, Austins theory is silent about this special
relationship of Justice and Law.
Salmond said that any definition of law which is without reference to justice is
imperfect in nature. He further said Law is not right alone, it is not might alone,
it a perfect union of the two and Law is justice speaking to men by the voice of
the State.
According to Salmond, whatever Austin spoke about is a law and not the law.
By calling the law we are referring to justice, social welfare and law in the
abstract sense. Austins definition lacked this abstract sense.
A perfect definition should include both a law and the law.
10. Purpose of law ignored - One of basic purposes of Law is to promote Social
Welfare. If we devoid law of ethics, the social welfare part is lost. Again, this part
has been ignored by Austin.
Salmonds Definition of Law : It is towards court and not to the legislation, that we
must look in order to asertain the true nature of law" :
According to Salmond Law may be defined as the body of principles recognized
and applied by the state in the administration of justice.
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In other words, law consists of rules recognized and acted upon by the Courts of
Justice.
Salmond believed that law may arise out of popular practices and its legal
character becomes patent when it is recognized and applied by a Court in the
Administration of Justice.
Courts may misconstrue a statute or reject a custom; it is only the Ruling of the
Court that has the Binding Force of Law.
He further said that laws are laws because courts enforce them. He drew a lot of
emphasis on Administration of Justice by the Courts. He was of firm belief that the
true test of law is enforceability in the courts of law.
Thus, we see that Salmond has defined law in the abstract sense. His definition
brings out the ethical purpose of law. In his definition, law is merely an instrument
of Justice.
Criticism of Salmonds definition by Vinogradoff :
Vinogradoff heavily criticized Salmonds definition. He said that the definition of law
with reference to Administration of Justice inverts the logical order of ideas. The
formulation of law is necessary precedent to the administration of justice. Law has
to be formulated before it can be applied by a court of justice.
Advantages of law :
a. Fixed principles of law
i. Laws provide uniformity and certainty of administration of justice.
ii. Law is no respecter of personality and it has certain amount of certainty
attached to it.
iii. Law avoids the dangers of arbitrary, biased and dishonest decisions because
law is certain and it is known. It is not enough that justice should be done but it
is also important that it is seen to be done.
iv. Law protects the Administration of Justice from the errors of individual
judgments. Individual whims and fancies are not reflected in the judgment of the
court that follow the Rule of Law.
b. Legislature represents the wisdom of the people and therefore a law made by
the legislature is much safer because collective decision making is better and more
reliable than individual decision making.
Disadvantages of law :
a. Rigidity of Law- An ideal legal system keeps on changing according to the
changing needs of the people. Therefore, law must adjust to the needs of the
people and it cannot isolate itself from them. However, in practice, law is not
usually changed to adjust itself to the needs of the people. Therefore, the lack of
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Examples : Bar Council Of India Rules 1961, Income Tax Rules 1962, RTI Rules
2012, etc
Subordinate laws can be further divided into the following :-
i) Autonomous Laws : A group of persons making subordinate law is known as
autonomous law, example : University or Boards.
ii) Judicial Rule :- Rules made by judicial body under power delegated by higher
authority like High courts or supreme court etc.
iii) Local Law: means law made by local bodies under the control of state eg Zila
Parishad, Municipal Corporation.
iv) 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.
CRITICISM:- Many writers have criticized delegated legislation because it gives
much power to the executive body and administration body.
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 legislative 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 and state legislatures for primary legislation.
However, even these institutions cannot create primary laws in an arbitrary fashion.
Any legislation going against the constitutional provision may be declared void by
judiciary.
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
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Answer :
Refer :
https://en.wikipedia.org/wiki/Question_of_law
https://en.wikipedia.org/wiki/Trier_of_fact
Intro :
What is law ?
The word, Law derived from the Latin word Lex which means The body of
Rules.
Law is what is perceived to be right or wrong, fair or unfair.
What is fact ?
A fact is something that has occurred or is correct.
The usual test for a statement of fact is verifiabilitythat is, whether it can be
demonstrated to correspond to experience.
Question of law :
In law, a question of law, also known as a point of law, is a question that must be
answered by applying relevant legal principles to interpretation of the law.
Such a question is distinct from a question of fact, which must be answered by
reference to facts and evidence as well inferences arising from those facts.
Answers to questions of law are generally expressed in terms of broad legal
principles and can be applied to many situations rather than be dependent on
particular circumstances or factual situations.
An answer to a question of law as applied to the particular facts of a case is often
referred to as a "conclusion of law."
In several civil law jurisdictions the highest court do consider the issue questions of
law settled by the lower court and will only consider questions of law. They may
refer a case back to a lower court to re-apply newly settled question of law and
answer any fact-based evaluations based on their answer on the application of the
law.
Question of fact :
In non-legal world, standard reference works are often used to check facts.
Scientific facts are verified by repeatable careful observation or measurement (by
experiments or other means).
In leagal parlance, a trier of fact (jury or judge or finder of fact), is a person, or
group of persons, who determines facts in a legal proceeding. However, various
aspects of a case that are not in controversy may be the "facts of the case" and are
determined by the agreement of the separate parties; the trier of fact need not
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GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
Explain in detail : Territorial nature of law and questions of law. (Oct-2012, Apr-
2016).
Answer :
Refer :
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GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
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Morals Laws
1 The morals are concerned with The laws are mainly concerned with
individual and are the laid down the society as a whole and lay down
rules for the molding of his the rules for relationship of individuals
character. with each other and with the state.
3 The morals are an end in Laws are not an end in itself. They are
themselves. means to achieve justice.
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.
However, inspite of these differences there is a clear relationship between law and
morals :-
1. Morals as the basis of law :- In the ancient society morals were the basis of all
laws. All the rules originated from 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 were 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
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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 ancient Roman law was based upon natural law and Christian morals/
principles and that any law that was against morals was 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 laws conform to morals. Laws
do not 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 of 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 (justice). 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 directly or indirectly influence development of law.
CONCUSION :
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.
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
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https://en.wikipedia.org/wiki/Justice
http://www.desikanoon.co.in/2012/08/jurisprudence-notes-administration-of.html
http://www.differencebetween.info/difference-between-law-and-justice
<take intro/definition of law from elsewhere in this doc>
Detailed discussion on what is justice :
Merriam Webster defines justice as :
The maintenance or administration of what is just especially by the impartial
adjustment of conflicting claims or the assignment of merited rewards or
punishments.
Judge
The administration of law; especially: the establishment or determination of
rights according to the rules of law or equity.
The quality of being just, impartial, or fair.
The principle or ideal of just dealing or right action: conformity to this principle
or ideal.
The quality of conforming to law.
Wikipedia :
Justice is the legal or philosophical theory by which fairness is administered.
The concept of justice differs in every culture.
An early theory of justice was set out by the Ancient Greek philosopher Plato in
his work The Republic.
Thinkers in the social contract tradition argued that justice is derived from the
mutual agreement of everyone concerned
Justice is a concept that is based on equality, righteousness, ethics, morality, etc.
This concept states that all individuals must be treated equal and the same.
The term justice is a huge part of law and almost all aspects of law are based on
this concept. The term as a part of law suggests that law must be right and equal
for everyone; irrespective of caste, religion, ethnicity, creed, etc. Everyone must
have the same rights as another.
In many countries, justice if often represented using a blindfolded lady with (i) a
set of scales in one hand, and (ii) sward in another hand.
The blindfold is used to depict the irrelevance of the religion, caste, gender, etc,,
while the scales is used to represent the equality in weighing competing claims
in each hand. The sword is used to symbolize the court's coercive power.
Law and court are used to implement justice by providing punishment for law
breakers.
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this concept.
Law and justice are two words that often go hand-in-hand. These words are often
confusing for many people who believe that these words are the same or refer to
the same thing. However, this is not true.
Law is basically a set of rules that define what is right and what is wrong,
while justice also takes into consideration the circumstances that surround the
right of wrong at that time.
While law is a system, justice is a concept that is the basis of this particular
system.
Concept of Justice According to Law :
Justice is rendered to the people by the courts.
Justice rendered must always be in accordance with the law.
However, it is not always justice that is rendered by the courts. This is because
the judges are not legislators, they are merely the interpreters of law. It is not
the duty of the court to correct the defects in law. The only function of the
judges is to administer the law as made by the legislature.
Hence, in the modern state, the administration of justice according to law is
commonly considered as implying recognition of fixed rules.
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
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2. Custom,
3. Precedents / case laws.
1. Legislation as a source of law :
http://kuklawnotes.blogspot.in/p/jurisprudence-1-what-is-administration.html
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.
LEGISLATION AS A SOURCE OF LAW :-
Analytical School : 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 is 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 :-
<search KINDS OF LEGISLATION elsewhere in this doc>
2. Custom as a source of law :
http://kuklawnotes.blogspot.in/p/jurisprudence-1-what-is-administration.html
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
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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 complimenting to each other
to prove customs to be a major source of law.
3. Precedent/ case laws as a source of law :
http://kuklawnotes.blogspot.in/p/jurisprudence-1-what-is-administration.html
INTRODUCTION :-
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.
Art-141 of Indian Constitution says that the decision of the higher courts shall be
binding upon the lower courts.
The precedents play an important role in the development of law. It is the an
important source of law.
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.
Status in other countries : deductive and inductive method :
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. Precedents has certain
advantages as follows :
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
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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 :- Although 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 miss some important
factors of the case due to one reason or the others.
Ratio-decidendi and Obiter dictum :
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) Obiter dictum :- 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
Custom is primary source of law.
Precedents are the secondary source of law.
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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 of laws 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 had 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.
In above senses, Judges are 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.
Law making power of courts are restricted to the facts of case before them.
In such cases which are not covered by existing laws, the judicial decisions
created new notions and formulae, new principles which were never
contemplated earlier.
Eg 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.
RECONCILIATION OF ABOVE 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
civil law systems the judges only supplement the law.
Precedents are an important source of law and bind the lower courts to follow the
same.
Stare Decisis (legal principle of determining points in litigation according to
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precedent) :
Juristic Writings :
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
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whether the reviewing court has a firm and definite conviction from the whole
record that the trial court erred in its ruling.
Guidelines : (As given by Hon Judge Thomas A Zonay)
When does a judge know if a discretionary decision is reasonable and likely to
withstand appellate scrutiny?
Here follows the ten guidelines to aid making judicial discretionary decisions :
1. Establish the record : Strive to ensure that the relevant and necessary facts
are on the record. Make sure your findings are only on the evidence presented.
Address matters of credibility and demeanor which will lend support
to your conclusion. Clearly show your reasoning and the logic in your decision.
2. Apply the correct law : While this may seem obvious, there are times that
the law may be unclear or unsettled. When that occurs, consider
making alternative rulings to support your decision regardless of which of the
alterative views of the law was employed. Also, keep in mind that the best way
to be sure that you are applying the correct law is to know the law. On this
point, take the time to research and prepare on the law before you write a
decision. Please dont assume counsels briefs sufficiently /address or cite the
applicable law.
3. Consider different ways to exercise your discretion : You can choose to
act quickly and decisively, or you can act slowly and monitor the situation. Every
case is different and a one size fits all model for how to respond simply does not
work.
4. Consider doing nothing : As Dr. Harvey Cox said, Not to decide is to
decide. This does not mean avoiding or failing to attend to a matter which
needs a determination. Rather, it means that there are times that careful
consideration of the issues leads one to conclude that the best course of action is
no action.
5. Consider the equities of the situation : It was Mark Twain
who said, Always do right. You will confuse some people and astonish the
rest. His view is no less true for judges.
When making a decision consider the equities and ask yourself is it
fair? Is it the right thing to do? Let your fairness show through on the record
and give each side an adequate opportunity to present their position to the
court.
6. Consider the results of your decision : This includes both the legal and
practical consequences. Remember Newtons Third Law of Motion: For
every action there is an equal and opposite reaction. Ask yourself, is the
reaction of what will flow from your decision one which will foster justice being
done in the case, or could it lead to irreparable harm which could
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Thus, Goodhart placed all the emphasis on the material facts as seen by the
judge, and not on the material facts as seen by anyone else.
Current Trends in the English Legal System :
Most of contemporary English authors are of the view that it is not the decision that
binds (or is overruled); it is the rule of law contained within the decision which
binds (or is overrules).
This element of the decision is termed as the ratio decidendi, and not every
statement of law made by a judge in the case forms part of this ratio.
Every decision contains the following basic ingredients :
1. Findings or material facts, both direct and inferential;
Please note that an inferential finding of fact is the inference that the judge
draws from the direct or perceptible facts. Eg, negligence may be inferred
from the direct facts of the speed of a vehicle, the length of skid marks, and
the state of the road. Negligence is thus as inferential finding of fact.
2. Statements of the Principles of law applicable to the legal problems disclosed
by the facts; and
3. A judgment (or judgments) based on the combined effect of 1 and 2.
For the purposes of the parties, point number 3 is the material element in the
decision, for it is what ultimately determines their rights and liabilities in relation to
the subject matter of the case.
However, for the purpose of the doctrine of precedent, point number 2 is the
vital element in the decision, and it is this that is termed the ratio decidendi.
Thus the ratio decidendi may be defined as the statement of law applied to the
legal problems raised by the facts, upon which the decision is based.
Not every statement of law in a judgment is binding; only those statement that
based upon the facts and upon which the decision is based are binding. Any other
statement of law is superfluous and is described as obiter dictum (it means by
the way). It should not, however be concluded from this that obiter dicta are of
little or no weight or importance.
Obiter Dicta : There are two types of obiter dicta.
1. A statement of law is regarded as obiter if it is based upon facts that either
were not found to be material or were not found to exist at all.
2. Even where a statement of law is based on the facts as found, it will be
regarded as obiter if it does not form the basis of the decision. A statement of
law made in support of a dissenting judgment is an obvious example.
Although obiter dicta lack binding authority, they may nevertheless have a strong
persuasive influence
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Three famous tests used by the courts to ascertain ratio decidendi --->
http://www.desikanoon.co.in/2014/05/jurisprudence-notes-three-tests-to.html
1. Wambaugh Test
2. Halsburys Test
3. Goodharts Test
SC on ratio decidendi ---> http://www.desikanoon.co.in/2014/05/jurisprudence-
notes-supreme-court-of.html
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
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GO TO CONTENTS.
MODULE-2 QUESTIONS :
Explain in detail the different schools of jurisprudence. (Apr-2012, Oct-2012).
Explain in detail the various schools of the Jurisprudence. (Mar2015).
Discuss in detail : Analytical positivism : Bentham and Austin's view.
Explain in detail the theory of Law given by Austin. (Apr-2012, Mar-2014).
Critically discuss the theory of law given by Austin. (Mar2015).
"Law is the command of the sovereign. Discuss this statement in detail. (Oct-2012,
Apr-2013, Apr-2016).
Discuss : International law is not a law. (Apr-2016). (Ketan - Is this Q on Austins
theory ?)
Explain in detail the theory of Law given by Salmond. (Apr-2012, Apr-2013).
Critically discuss the theory of law given by Salmond. (Mar2015).
Discuss in detail : Natural law School.
Discuss : An unjust law, is not a law. (Apr-2016).
Explain in detail the theory of law as dictate of reason. (Oct-2012).
Discuss in detail : Historical law school.
Discuss in detail : Legal realism and Sociological law School.
Discuss : "Law is Science of social engineering Rosco Pound. (Apr-2016).
Discuss : Legal realism ---> Oliver Wendell Holmes Jr, Roscoe Pound, Karl Llewellyn,
Benjamin Cardozo
Explain in detail the theory of law given by Kelson. (Mar-2014).
Explain in detail the concept of law as expounded by Professor H.L.A. Hart. (Apr-
2016).
GO TO CONTENTS.
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MODULE-2 ANSWERS :
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jurisprudential stance.
The Strong Natural Law Thesis holds that if a human law fails to be backed-up
by decisive reasons, then it is not properly called a "law" at all. This is
captured, imperfectly, in the famous maxim: lex iniusta non est lex' (an unjust
law is no law at all).
The Weak Natural Law Thesis holds that If a human law fails to be backed-up
by decisive reasons, then it can still be called a "law", but it must be
recognised as a defective law.
Aristotle (born 384 BC) is often said to be the father of natural law. His
treatment of what he calls "political justice" derives from his discussion of "the
just" as a moral virtue derived as the mean between opposing vices. He argues
that the term "justice" actually refers to two different but related ideas : general
justice and particular justice.
When a person's actions are completely virtuous in all matters in relation to
others, Aristotle calls them "just" in the sense of "general justice;" as such
this idea of justice is more or less coextensive with virtue.
"Particular" or "partial justice", by contrast, is the part of "general justice"
or the individual virtue that is concerned with treating others equitably.
It must also be remembered that Aristotle is describing a view of morality, not
a system of law, and therefore his remarks as to nature are about the
grounding of the morality enacted as law, not the laws themselves.
Saint Thomas Aquinas (born 1225 AD), was an Italian philosopher and
theologian in the scholastic tradition. He is the foremost classical proponent of
natural theology. According to him, natural law is the "participation" in the
eternal law by rational human creatures, and is discovered by reason that good
is to be done and promoted, and evil is to be avoided.
Analytic jurisprudence : For many centuries, natural law theories prevailed before
analytic jurisprudence came in to being. Analytic jurisprudence means the use of a
neutral point of view and descriptive language when referring to the aspects of
legal systems.
Analytic jurisprudence was a philosophical development that rejected natural
law's moralistic fusing of what law is and what it ought to be.
People invariably slip between describing that the world is a certain way to
saying therefore we ought to conclude on a particular course of action. But as a
matter of pure logic, one cannot conclude that we ought to do something merely
because something is the case.
So analysing and clarifying the way the world is must be treated as a strictly
separate question to normative and evaluative ought questions.
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The most important questions of analytic jurisprudence are : "What are laws?";
"What is the law?"; "What is the relationship between law and
power/sociology?"; and "What is the relationship between law and morality?"
Legal positivism (late 18th century) :
Intro : Legal positivism is the dominant theory, although there are a growing
number of critics who offer their own interpretations.
Legal positivism (by contrast to natural law) holds that there is no necessary
connection between law and morality and that the force of law comes from
some basic social facts.
The positivist view on law can be seen to cover two broad principles :
Firstly, that laws may seek to enforce justice, morality, or any other
normative end. However, their success or failure in doing so does not
determine their validity. ie IF a law is properly formed, in accordance with
the rules recognized in the society concerned, it is a valid law, regardless of
whether it is just by some other standard.
Secondly, that law is nothing more than a set of rules to provide order and
governance of society.
What the law is (lex lata) - is determined by historical social practice
(resulting in rules)
What the law ought to be (lex ferenda) - is determined by moral
considerations.
Bentham and Austin :
One of the earliest legal positivists was Jeremy Bentham (born 15-Feb-
1748). Bentham was an early and staunch supporter of the utilitarian concept
(along with Hume), an avid prison reformer, advocate for democracy, and
strongly atheist. Bentham's views about law and jurisprudence were
popularized by his student, John Austin.
Austin's (born 03-Mar-1790) utilitarian answer to "what is law?" was that
law is "commands, backed by threat of sanctions, from a sovereign, to whom
people have a habit of obedience".
According to Austin Science of Jurisprudence is concerned with Positive
Laws that is laws strictly so called. It has nothing to do with the goodness
or badness of law.
Hans Kelsen :
Hans Kelsen (born 11-Oct-1881) is considered one of the prominent jurists
of the 20th century and has been highly influential in Europe and Latin
America, although less so in common-law countries.
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His Pure Theory of Law aims to describe law as binding norms while at the
same time refusing, itself, to evaluate those norms.
That is, 'legal science' is to be separated from 'legal politics'.
Central to the Pure Theory of Law is the notion of a 'basic norm' from which in
a hierarchy all 'lower' norms in a legal system are understood to derive their
authority or 'bindingness'.
In this way, Kelsen contends, the bindingness of legal norms can be
understood without tracing it ultimately to some suprahuman source such as
God, personified Nature or a personified State or Nation.
H. L. A. Hart :
Contemporary legal positivists, H. L. A. Hart (born 17-Jul-1907) particularly,
have long abandoned Austins view, and have criticised its oversimplification.
H. L. A. Hart argued that the law should be understood as a system of social
rules.
Hart rejected Kelsen's views that sanctions were essential to law and that a
normative social phenomenon, like law, can not be grounded in non-normative
social facts.
Hart revived analytical jurisprudence as an important theoretical debate in the
twentieth century through his book The Concept of Law. As the professor of
jurisprudence at Oxford University, Hart argued that law is a 'system of rules'.
According to Hart, Rules are divided into primary rules (rules of conduct) and
secondary rules (rules addressed to officials to administer primary rules).
Secondary rules are further divided into (i) rules of adjudication (to resolve
legal disputes), (ii) rules of change (allowing laws to be varied) and (iii) rule
of recognition (allowing laws to be identified as valid).
Joseph Raz (born 21-Mar-1939) and Ronald Dworkin (born 11-Dec-1931) :
Some philosophers used to contend that positivism was the theory that there
is "no necessary connection" between law and morality; but influential
contemporary positivists, including Joseph Raz & Ronald Dworkin reject such
view. As it is a necessary truth that there are vices that a legal system cannot
possibly have (for example, it cannot commit rape or murder).
Joseph Raz defends the positivist outlook, but criticised Hart's "soft social
thesis" approach in The Authority of Law.
Raz argues that law is authority, identifiable purely through social sources,
without reference to moral reasoning. And any categorisation of rules beyond
their role as authority is better left to sociology than to jurisprudence.
Legal formalism (mechanical jurisprudence) :
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His theory of justice uses a device called the original position to ask us which
principles of justice we would choose to regulate the basic institutions of our
society if we were behind a 'veil of ignorance.'
Imagine we do not know who we are - our race, sex, wealth status, class, or
any distinguishing feature - so that we would not be biased in our own favour.
Rawls argues from this 'original position' that we would choose exactly the
same political liberties for everyone, like freedom of speech, the right to vote
and so on. Also, we would choose a system where there is only equality
because that produces incentives enough for the economic well-being of all
society, especially the poorest. This is Rawls's famous 'difference principle'.
Justice is fairness, in the sense that the fairness of the original position of
choice guarantees the fairness of the principles chosen in that position.
Constructivist theory : Contemporary philosopher of law Ronald Dworkin who
has advocated a constructivist theory of jurisprudence that can be characterized
as a middle path between natural law theories and positivist theories of general
jurisprudence.
Critical legal studies (1970-1980) : Critical legal studies are a younger theory of
jurisprudence that has developed since the 1970s in the United States. It holds
that the law is largely contradictory, and can be best analyzed as an expression
of the policy goals of a dominant social group. Critical legal studies aim to shape
society based on a vision of human personality devoid of the hidden interests
and class domination. According to Roberto Unger (a prominent participants in
the CLS movement), the movement "continued as an organizing force only until
the late 1980s. Its life as a movement lasted for barely more than a decade.
Libertarian theories of law : Libertarian theories of law build upon classical liberal
and individualist doctrines.
The defining characteristics of libertarian legal theory are its insistence that
the amount of government intervention should be kept to a minimum and the
primary functions of law should be enforcement of contracts and social order,
though "social order" is often seen as a desirable side effect of a free market
rather than a philosophical necessity.
Historically, the Austrian economist Friedrich Hayek is the most important
libertarian legal theorist. Another important predecessor was Lysander
Spooner, a 19th-century American individualist anarchist and lawyer. John
Locke was also an influence on libertarian law theory (see Two Treatises of
Government).
Ideas range from anarcho-capitalism to a minimal state providing physical
protection and enforcement of contracts.
Therapeutic jurisprudence : It is concerned with the impact of legal processes on
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modern times the customs play an important role in the formation of positive
law. So we cannot ignore customs from law.
(6) Precedents ignored : Precedent means the decisions of the court, which
are also called as judge made laws. Judge made laws are not the command of
the Sovereign. But they are enforceable. Austin excluded these laws from his
concept of the law.
(7) 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 base of English Law is
conventions. But Austin did not include conventions in his concept of law.
(8) 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.
(9) Command Theory is not suitable in modern times. It is also an artificial
theory having no sense in the modern world.
(10) 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 rejected by the people. eg French
Revolution, of Panamaeto.
(11) Law can be enforced even without power, it they are suitable to the
society.
(12) 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.
CONCLUSION :-
In this way the Austins theory of command has been criticized 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. Austins 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.
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Salmond said,
whatever Austin spoke about is a law and not the law.
By calling the law we are referring to justice, social welfare and law in the
abstract sense.
Austins definition lacked this abstract sense. A perfect definition should include
both a law and the law.
Salmonds theory of law :
As said above, According to Salmond Law may be defined as the body of principles
recognized and applied by the state in the administration of justice.
In other words, law consists of rules recognized and acted upon by the Courts of
Justice.
It is the application by the State of the sanction of force to the rule of right.
Salmond believed that law may arise out of popular practices and its legal
character becomes patent when it is recognized and applied by a Court in the
Administration of Justice. Courts may misconstrue a statute or reject a custom; it is
only the Ruling of the Court that has the Binding Force of Law.
He further said that laws are laws because courts enforce them. He drew a lot of
emphasis on Administration of Justice by the Courts. He was of firm belief that the
true test of law is enforceability in the courts of law.
Thus, we see that,
Salmond has defined law in the abstract sense.
His definition brings out the ethical purpose of law.
In his definition, law is merely an instrument of Justice.
He drew a lot of emphasis on Administration of Justice by the Courts.
He was of firm belief that the true test of law is enforceability in the courts of
law.According to Salmond, the Administration of justice is the maintenance of
right within a political community by means of the physical force of the state.
Criticism of Salmond's theory by Vinogradoff :
Vinogradoff heavily criticized Salmonds definition.
He said that the definition of law with reference to Administration of Justice inverts
the logical order of ideas.
The formulation of law is necessary precedent to the administration of justice.
Law has to be formulated before it can be applied by a court of justice.
He further said that the definition given by Salmond is defective because he thinks
law is logically subsequent to administration of justice.
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Existence of a Rule of Law because Courts of Justice could apply it and enforce it
while deciding cases, vitiates the definition of law.
Conclusion :
Thus, we see that Salmond has defined law in the abstract sense. His definition
brings out the ethical purpose of law. In his definition, law is merely an instrument
of Justice.
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1 Declarationism, a legal and moral philosophy in the United States of America which proclaims
that the first law enacted by the American Congress is the Declaration of Independence and that
the principles set forth within this document are legally the defining factor for all aspects of
American government. Declarationism holds the perception that all people are entitled to dignity
through Natural-Divine Law, which guarantees the rights to Equality, Life, Liberty, the Pursuit of
Happiness and Government by Consent (or just consent). Declarationism also recognizes that
these rights belong to all people, not just U.S. Citizens
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That the meaning of law is such that its content cannot be determined except
by reference to moral principles. These meanings can either oppose or
complement each other, although they share the common trait that they rely
on inherence as opposed to design in finding just laws.
Whereas legal positivism would say that a law can be unjust without it being any
less a law, a natural law jurisprudence would say that there is something legally
deficient about an unjust law.
The concept of natural law was very important in the development of the English
common law. In the struggles between Parliament and the monarch, Parliament
often made reference to the Fundamental Laws of England, which were at times
said to embody natural law principles since time immemorial and set limits on
the power of the monarchy.
According to William Blackstone, however, natural law might be useful in
determining the content of the common law and in deciding cases of equity, but
was not itself identical with the laws of England. Nonetheless, the implication of
natural law in the common law tradition has meant that the great opponents of
natural law and advocates of legal positivism, like Jeremy Bentham, have also
been staunch critics of the common law.
Natural law jurisprudence is currently undergoing a period of reformulation (as is
legal positivism). The most prominent contemporary natural law jurist,
Australian John Finnis, is based in Oxford, but there are also Americans Germain
Grisez, Robert P. George, and Canadian Joseph Boyle and Brazil Emdio
Brasileiro. All have tried to construct a new version of natural law. The 19th-
century anarchist and legal theorist, Lysander Spooner, was also a figure in the
expression of modern natural law.
"New Natural Law" as it is sometimes called, originated with Grisez. It focuses on
"basic human goods," such as human life, knowledge, and aesthetic experience,
which are self-evidently and intrinsically worthwhile, and states that these goods
reveal themselves as being incommensurable with one another.
The tensions between the natural law and the positive law have played, and
continue to play a key role in the development of international law.
Aristotal :
Aristotle (born 384 BC) wore many-many hats ! He was an ancient Greek
philosopher and scientist. His writings cover many subjects including physics,
biology, zoology, metaphysics, logic, ethics, aesthetics, poetry, theater, music,
rhetoric, linguistics, politics and government and constitute the first
comprehensive system of Western philosophy.
Greek philosophy emphasized the distinction between "nature" on the one hand
and "law", "custom", or "convention" on the other. ie
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What the law/ custom commanded would be expected to vary from place to
place,
but what was "by nature" should be the same everywhere.
Aristotle is often said to be the father of natural law. His treatment of what he calls
"political justice" derives from his discussion of "the just" as a moral virtue derived
as the mean between opposing vices. He argues that the term "justice" actually
refers to two different but related ideas : general justice and particular justice.
General justice : When a person's actions are completely virtuous in all
matters in relation to others, Aristotle calls them "just" in the sense of
"general justice;" as such this idea of justice is more or less coextensive
with virtue.
Particular justice : "Particular" or "partial justice", by contrast, is the part of
"general justice" or the individual virtue that is concerned with treating
others equitably.
It must also be remembered that Aristotle is describing a view of morality, not
a system of law, and therefore his remarks as to nature are about the
grounding of the morality enacted as law, not the laws themselves.
Did Aristotle write about natural laws or natural rights ?
Aristotle's association with natural law may be due to the interpretation given to
his works by Thomas Aquinas. But whether Aquinas correctly read Aristotle is in
dispute.
According to some, Aquinas mixed-up natural law and natural right, the latter of
which Aristotle posits in Book V of the Nicomachean Ethics (Book IV of the
Eudemian Ethics). According to this interpretation, Aquinas's influence was such
as to affect a number of early translations of these passages in an unfortunate
manner, though more recent translations render those more literally.
Aristotle notes that natural justice is a species of political justice, viz. the
scheme of distributive and corrective justice that would be established under
the best political community; were this to take the form of law, this could be
called a natural law, though Aristotle does not discuss this and suggests in the
Politics that the best regime may not rule by law at all.
The best evidence of Aristotle's having thought there was a natural law comes
from the Rhetoric, where Aristotle notes that, aside from the "particular" laws
that each people has set up for itself, there is a "common" law that is according
to nature.
However, controversy persists.
Saint Thomas Aquinas :
Saint Thomas Aquinas (born 1225 AD), was an Italian philosopher and theologian
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in the scholastic tradition. Thomas Aquinas embraced several ideas put forward by
Aristotlewhom he called "the Philosopher"and attempted to synthesize
Aristotelian philosophy with the principles of Christianity.
He is the foremost classical proponent of natural theology. According to him,
natural law is the "participation" in the eternal law by rational human creatures,
and is discovered by reason that good is to be done and promoted, and evil is to be
avoided.
According to Aquinas "all acts of virtue are prescribed by the natural law. He
defined the four cardinal virtues as prudence, temperance, justice, and fortitude.
The cardinal virtues are natural and revealed in nature, and they are binding on
everyone.
Thomas Aquinas distinguished four kinds of law : eternal, natural, human, and
divine.
Eternal law is the decree of God that governs all creation. It is, "That Law which
is the Supreme Reason cannot be understood to be otherwise than unchangeable
and eternal."
Natural law is the human "participation" in the eternal law and is discovered by
reason. Natural law is based on "first principles" :
. . . this is the first precept of the law, that good is to be done and promoted,
and evil is to be avoided. All other precepts of the natural law are based on
this . . .
Human Law, Aquinas concludes, "...that just as, in the speculative reason, from
naturally known indemonstrable principles, we draw the conclusions of the
various sciences, the knowledge of which is not imparted to us by nature, but
acquired by the efforts of reason. These particular rules, devised by human
reason, are called human laws, provided the other essential conditions of law be
observed". Human law is positive law.
Natural and human law is not adequate alone. The need for human behavior to
be directed made it necessary to have Divine law. Divine law is the specially
revealed law in the scriptures.
<work on this> Lex iniusta lex non est (Latin: An unjust law is no law at all), is a
standard legal maxim.
Originating with St. Augustine, the motto was used by St. Thomas Aquinas and
quoted by Martin Luther King Jr. during the Civil Rights Movement to describe
racial segregation and discrimination against Black people.
This view is strongly associated with natural law theorists, including John Finnis
and Lon Fuller.
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century, the concept of individualism came into existence. Due to this concept the
revolutions came like French revolution, Russian revolution etc.
Law is the general will of the people or law is based upon common people and the
feelings of the common people.
According to the historical school, 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.
Montesquieu 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.
Savigny :-
Savigny is considered as the main expounder or supporter of the historical
school. He has given the Volkgeist theory ("spirit of the people").
According to this theory, law is based upon the general will or free will of
common people.
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.
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. All
these things effect law and make it suitable to the society.
Main features of the Savigny 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.
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Discuss : Legal realism ---> Oliver Wendell Holmes Jr, Roscoe Pound, Karl Llewellyn,
Benjamin Cardozo
Answer :
Refer :
https://en.wikipedia.org/wiki/Sociology_of_law
https://en.wikipedia.org/wiki/Legal_realism
https://en.wikipedia.org/wiki/Moral_realism
https://en.wikipedia.org/wiki/Roscoe_Pound
https://www.scribd.com/doc/132404517/Law-as-a-Means-of-Social-Engineering-
Roscoe-Pound#
Intro :
Man is a social animal and needs a society for his leaving, working and enjoying
life. A group of individual forms a society. Society has become an essential
condition for human life to develop his or her personality. Therefore society and
human life always go together.
Every human being is born with some desires and expectations which are inherent
in nature. From childhood to till old age, every human being expects that his or her
desire is to be fulfilled for which their arise conflict of desires or claims which
comes under the term interest.
It is impossible to fulfil all the desires of a human being. So to fulfil the desires of
maximum number of human being for the welfare of society the concept of Social
Engineering was emerged and which was coined by Roscoe Pound.
Interests more particularly the conflicting interest are the subject of Social
Engineering. Social engineering is based on the notion that Laws are used as a
means to shape society and regulate peoples behaviour. It is an attempt to control
the human conduct through the help of Law.
According to Pound, Law is social engineering which means a balance between the
competing interests in society, in which applied science are used for resolving
individual and social problems.
Social Engineering : The Concept :
Roscoe Pound was one of the greatest leaders of sociological school of
jurisprudence. He introduced the Doctrine of Social Engineering which aims at
building and efficient structure of society which would result in the satisfaction of
maximum of wants with the minimum of friction and waste.
It involved the rebalancing of competing interests.
Roscoe Pound defined the legal order by reference to the end of law :
The legal order may well be though of as a task or as a great series of tasks of
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3. Social Interests : The social interests which need legal protection are
a) Interests in the preservation of peace, general health, security of transactions
etc.
b) Preserving social institutions such as religion, political and economic
institutions etc.
c) Interests preserving general morals by prohibiting transactions which are
against morality such as prostitution, drunkenness, gambling etc.
d) Interests in conservation of social resources eg. Natural resources,
reformation of delinquents, protection of economically weaker section of the
society.
e) Social interests in general progress including economic, political and cultural
progress. For example, freedom of trade and commerce, freedom of speech and
expression, encouragement to arts and promotion of higher education etc.
f) Interests which promote human personality by enabling a person to live
political, physical, cultural, social and economic life to suit his taste and improve
his personality.
Characteristics of Pounds theory : :
When Pound conceives law as a social engineering, he is reading law and its
administration as a part of much wider process of social ordering, functioning
through courts and administrative agencies with the aid of legal precepts serving as
partial guides.
The task of social ordering presupposes a sincere effort to avoid or atleast
ameliorate, collisions resulting from conflict of interests.
All the varied activities of legal order or the efforts of the courts, administrators,
legislatures, jurists are to be directed toward the adjustment of relations the
compromise of conflicting claims, the securing of interest by determining of
boundaries wherein each maybe asserted with a minimum of friction and the
finding of means whereby greater number of claims may be satisfied with a
sacrifice of fewer.
If law is viewed as social engineering, its end is conceived to be satisfaction of all
demands and securing of all interests with a minimum of conflict so that the means
of satisfaction have the widest possible distribution.
It may be noted that Pounds techniques of Social Engineering are
a) Study of actual social effects of legal institutions and legal doctrines
b) Study of the means of making the legal rules effective
c) Sociological study for law making
d) Study of judicial method
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e) A sociological history
f) The importance of reasonable and just solutions of individual cases
g) Of a ministry of justice to make efforts more effective toward the purpose of
legal order.
The above facts and considerations should be taken into account by the jurists of
sociological jurisprudence to make law purposive, need based and goal oriented.
In essence the sociological jurists look at law functionally. They ask,
how the methods of Jurisprudence work.
What consequences have flowed from these methods in action?
How far they have enabled the law to achieve its end or on the other hand
interfered with its achieving them?
Pound is pragmatic, functional and experimental advocating social ordering and
control through law, to promote and maintain ideal relations among mankind.
Just as engineers minimize friction and waste when dealing with
machines, similarly jurists ought to enable to resolve conflicts in society in
the interests of harmony, reform and progress.
This methodology is described by Pound as Social Engineering.
Criticism of Pounds theory :
Despite Pounds great contribution to sociological jurisprudence and his emphasis
on studying the actual working of law in society, his theory suffers from certain
drawbacks.
Pounds theory of social engineering has been criticized for the use of the term
engineering which equates society to a factory like mechanism. Law is a social
process rather than the result of an applied engineering equating society with a
factory is not correct because the former is changing and dynamic in nature
whereas the latter is more or less static.
Conclusion :
There is no doubt that through his legal theory Pound has attempted to bring law
into closer relation with other social sciences and tried to strike a balance between
freedom of individual and social control through the instrumentality of law. His
greatest contribution to jurisprudence is that he is practical in approach and
concentrate of law in society.
In Pounds theory, law as a tool to bring equilibrium using for social engineering
comes into play when there is unequal distribution of wealth in society or when
social justice is denied to large sections of the society people. In his theory law
attempts to remove inequalities for the benefit of whole community rather than
only few individuals.
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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
grundnorm. Like Austin, Kelson also 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 (written constitution) and all other are lower authorities. The
source of power in a state for all bodies is written constitution.
Nature of grundnorm :-
According to Kelson each country has the formation of grundnorm according to
local conditions. The duty of jurists is to interpret the grundnorm in their own
language.
They are not concerned with the goodness or badness of the grundnorm. They
are not concerned with the origin of the grundnorm.
Feature of Kelsons theory :-
1. grundnorm as a source of law :- grundnorm is the source of all laws. grundnorm
is in the form of written constitution.
2. No difference between law and state :- Kelson says that there is no difference
between law and State because they get power from the same grundnorm. Law
comes from the grundnorm and the state also comes from the grundnorm.
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 international laws :- The main purpose 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 international 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 and become 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 :
grundnorm is a vague concept :- The concept of grundnorm is not clear. It cannot
be applied where there is no written constitution.
in grundnorm is not linked with morals ethics. Customs and religion are also not
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the norms. But we can not ignore the role of these in the development of law.
International 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.
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.
Conclusion :-
Although Kelsen has been criticised from various angles yet he had contributed a
lot in the development of the society.
The concept of grundnorm gave power to the public at large as well as at national
level.
GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
Explain in detail the concept of law as expounded by Professor H.L.A. Hart. (Apr-
2016).
Discuss in detail : Law is a system of rules, a union of primary and secondary rules.
Answer :
Refer :
https://en.wikipedia.org/wiki/H._L._A._Hart
https://en.wikipedia.org/wiki/The_Concept_of_Law
http://kuklawnotes.blogspot.in/p/jurisprudence-1-what-is-administration.html
Intro :
H. L. A. Hart, was a British legal philosopher, and a major figure in political and
legal philosophy. He is famous for definition of las as Law is a system of rules, a
union of primary and secondary rules as espoused in this famous book The
Concept of Law.
He was Professor of Jurisprudence at Oxford University and the Principal of
Brasenose College, Oxford. His most famous work is The Concept of Law, which
has been hailed as "the most important work of legal philosophy written in the
twentieth century".
He is considered one of the world's foremost legal philosophers in the twentieth
century, alongside Hans Kelsen.
The Concept of Law is the most famous work of H. L. A. Hart. It was first published
in 1961 and develops Hart's theory of legal positivism (the view that laws are rules
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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.
(9) Command Theory is not suitable in modern times. It is also an artificial
theory having no sense in the modern world.
(10) 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 rejected by the people. eg French Revolution, of
Panamaeto.
(11) Law can be enforced even without power, it they are suitable to the society.
(12) 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.
HLA Hart on Social habits, rules, and laws :
Hart draws a distinction between,
a social habit (which people follow habitually but where breaking the habit
does not bring about opprobrium eg going to the cinema on Thursday), and
a social rule (where breaking the rule is seen as wrong eg neglecting to take
off one's hat upon entering a church).
We feel in some sense bound by social rules. And laws frequently appear to be
types of social rule.
There are two perspectives to this :
the external aspect, which is the independently observable fact that people do
tend to obey the rule with regularity, and
the internal aspect which is the feeling by an individual of being in some sense
obligated to follow the rule, otherwise known as the critical reflective attitude. It
is from this internal sense that the law acquires its normative quality.
The obedience by the populace of a rule is called efficacy. No law can be said to be
efficacious unless followed by the majority of the populace. Though an average
citizen in a modern state with a developed legal system may feel the internal
aspect and be compelled to follow the laws, it is more important for the officials of
the society/ peoples to also have the internal aspect since it is up to them to follow
the constitutional provisions which, if they wish, could ignore without
accountability. Yet, the officials must use the internal aspect and accept the
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Thus, HLA Hart came to define law as Law is a system of rules, a union of primary
and secondary rules. In other words it can be said that the Law is the journey of
rules.
Conclusion :
Book The concept of law is a definitive text on modern legal system where (i)
there is a legislature which makes the rules, (ii) these rules are changed or
amended by the executive when it necessary, (iii) there are courts which apply the
rules for dispute resolution.
Moreover, Sir HLA Hart also gave due place of Morality in his theory because morals
have an important role in every legal world and these morals are not decided by
acts of legislatures.
We can say that Sir HLA Hart theory, The Concept of Law and his definition
injected a fresh blood in to otherwise static field of jurisprudence.
GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.
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3.1) Rights, Duties and Wrongs : Definitions and relationship, Rights : kinds,
Legal Rights as defined by Hohfeld, Right-Duty Correlations
3.2) Nature of personality, types of persons: Natural and artificial persons
3.3) Corporate personality: Corporation sole and aggregate, Rights &
liabilities
3.4) Status of the unborn, minor, lunatic, drunken and dead persons
3.5) Titles : kinds
3.6) Liabilities : conditions for imposing liabilities, Mens rea, Intention,
negligence, Vicarious liability, Strict Liability,
3.7) Theories of punishment
GO TO CONTENTS.
MODULE-3 QUESTIONS :
Explain in detail the meaning and concept of Legal Right. (Apr-2012, Apr-2013,
Mar2015).
Discuss in detail Legal Wrong.
Explain in detail : Concept of legal right and its kinds. (Oct-2012).
Explain giving illustrations, the concept of legal right in its wider sense. (Mar-2014).
Explain in detail the meaning, characteristic and different kinds of legal rights. (Apr-
2016).
Discuss : Legal Rights as defined by Hohfeld.
Discuss : Right-Duty Correlations.
Explain in detail the concept of personality and types of person with giving
illustrations. (Mar-2014).
Discuss : Only living human beings are natural persons. (Apr-2016).
Discuss in detail : Status of the unborn, minor, lunatic, drunken and dead persons.
Explain in detail : Meaning and kind of legal person. (Oct-2012).
Discuss in detail : Corporate personality : Corporation sole and aggregate, Rights &
liabilities.
Explain in detail : Concept of the Legal Person. (Apr-2012, Mar2015).
Explain in detail the concept of legal person with decided cases. (Apr-2013).
Explain in detail the concept of titles. (Mar-2014).
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GO TO CONTENTS.
MODULE-3 ANSWERS :
Explain in detail the meaning and concept of Legal Right. (Apr-2012, Apr-2013, Mar
2015).
Discuss in detail Legal Wrong.
Explain in detail : Concept of legal right and its kinds. (Oct-2012).
Explain giving illustrations, the concept of legal right in its wider sense. (Mar-2014).
Explain in detail the meaning, characteristic and different kinds of legal rights. (Apr-
2016).
Answer :
Refer :
http://kuklawnotes.blogspot.in/p/jurisprudence-1-what-is-administration.html
https://en.wikipedia.org/wiki/Natural_and_legal_rights
http://www.desikanoon.co.in/2012/08/jurisprudence-notes-legal-concepts.html
http://www.alameenlaw.in/modelpapers-dec2016.html
Discuss in detail Legal Wrong :
Read from page-47 - CONCEPT OF LIABILITY -
http://shodhganga.inflibnet.ac.in/bitstream/10603/71969/7/07_chapter%205.pdf
Legal Right :
Intro :
Right generally means an interest or facility or a privilege or immunity or a
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freedom.
Legal rights are those bestowed onto a person by a given legal system (i.e., rights
that can be modified, repealed, and restrained by human laws).
Natural rights are those that are not dependent on the laws or customs of any
particular culture or government, and therefore universal and inalienable (i.e.,
rights that cannot be repealed or restrained by human laws).
Legal right -vs- moral 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.
What is legal right ? 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 :-
It is not necessary that the state should always necessarily enforce all the legal
rights.
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
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
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GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.
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https://en.wikipedia.org/wiki/Wesley_Newcomb_Hohfeld
Intro :
Wesley Newcomb Hohfeld (1879-1918) was an American jurist who during his life
he published only a handful of law journal articles.
After his death the material forming the basis of Fundamental Legal Conceptions
was derived from his two articles in the Yale Law Journal.
The work remains a powerful contribution to modern understanding of the nature
of rights and the implications of liberty. To reflect Hohfeld's continuing importance,
a chair at Yale University is named after him.
Importance of Hohfelds contribution :
Hohfeld made major contribution by simplifying legal concepts of right no-right
----- privilege duty ----- power disability ----- immunity liability.
He created a very precise analysis which distinguished between fundamental legal
concepts and then identified the framework of relationships between them.
His work offers a sophisticated method for deconstructing broad legal principles
into their component elements.
By showing how legal relationships are connected to each other, the resulting
analysis illuminates policy implications and identifies the issues which arise in
practical decision making
Hohfelds theory of legal rights :
Hohfeld noticed that even respected jurists conflate various meanings of the term
right, sometimes switching senses of the word several times in a single sentence.
He wrote that such imprecision of language indicated a concomitant imprecision of
thought, and thus also of the resulting legal conclusions.
In order to both facilitate reasoning and clarify rulings, he attempted to
disambiguate the term rights by breaking it into eight distinct concepts.
To eliminate ambiguity, he defined these terms relative to one another, grouping
them into,
four pairs of Jural Opposites and
four pairs of Jural Correlatives.
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This use of the words right and privilege correspond respectively to the concepts of
claim rights and liberty rights.
Hohfeld argued that right and duty are correlative concepts, i.e. the one must
always be matched by the other.
If A has a right against B, this is equivalent to B having a duty to honor A's right.
If B has no duty, that means that B has a privilege, i.e. B can do whatever he or
she pleases because B has no duty to refrain from doing it, and accordingly A
has no right to prohibit B from doing so.
Each individual is located within a matrix of relationships with other individuals. By
summing the rights held and duties owed across all these relationships, the
analyst can identify both the degree of liberty an individual would be considered
to have perfect liberty if it is shown that no one has a right to prevent the given act
and whether the concept of liberty is comprised by commonly followed practices,
thereby establishing general moral principles and civil rights.
Discussion :
Hohfeld defines the correlatives in terms of the relationships between two
individuals.
In the theory of "in rem rights", there is a direct relationship between a person and
a thing. Real rights are in this respect unlike claim rights or "rights in personam",
which by nature must be exercised against a person, the best example being when
someone is owed money by another.
Hohfeld demonstrates that this way of understanding rights in general is wrong. In
particular, Hohfeld demonstrates that there is no such thing as a legal relation
between a person and a thing, since a legal relation always operates between two
people.
As the legal relations between any two people are complex, it is helpful to break
them down into their simplest forms. Legal rights do not correspond to single
Hohfeldian relations, but are compounds of them.
Thus, a right can be defined as an aggregate of the Hohfeldian relations
with other people.
Hohfeld replaces the concept of
right in personam by paucital right and
"right in rem" by a compound or aggregate of "multital rights".
Rights held by a person against one or a few definite persons are paucital (or in
personam), and
rights held by a person against a large indefinite class of people are multital (or
in rem).
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A contract right is paucital (or "in personam") because it can be enforced only
against the specific parties to the contract.
A property right is multital (or "in rem") because a landowner has the right to
exclude not only specific people from his land but the "whole world".
What is "multital rights ?
The landowner has many rights, privileges, powers, and immunities; his multital
rights are composed of many paucital rights.
For example, the owner has a right that others do not step on his land but
there is not just one such right against a mass of persons (the community),
but many separate although usually identical paucital rights with this content
(as many instances as there are people in the community). This is what
Hohfeld calls "multital rights.
Hohfelds definition of liberty :
In Hohfeldian analysis, liberty is defined by an absence both of a duty and of a
right.
B is free because he has no obligation to recognize any of A's rights. That does
not deny that B might decide to do what A wants because that is the essence of
liberty.
Nor does it deny the possibility that B might accept a duty to A to give a benefit
to C. In that situation, C would have no right and would have to rely on A to
enforce the duty.
The truth is that liberty is significant from both a legal and a moral point of view
because only liberty ensures that an individual has control over his or her
choices on whether and how to act. If something interferes with this choice, the
natural reaction is to resent it and to seek a remedy.
The corelative between right and duty inevitably describes the way in which two
people are limited in their choices to act, and the outside observer cannot
capture the legal and moral implications without examining the nature of the
right held by A.
Hence, this relationship is qualitatively different. An interference with liberty
would be considered wrongful without having to ask for detailed evidence.
Yet whether A's relationship with B is morally suspect could only be determined
by evaluating evidence on precisely what B's duty requires B to do or not to do.
GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.
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GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.
Explain in detail the concept of personality and types of person with giving
illustrations. (Mar-2014).
Discuss : Only living human beings are natural persons. (Apr-2016).
Answer :
Refer :
https://en.wikipedia.org/wiki/Legal_personality
http://ba-llb-handout-notes.blogspot.in/2015/11/persons-in-jurisprudence-
notes.html
https://en.wikipedia.org/wiki/Natural_person
http://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1117&context=jlia
Intro :
In an ordinary meaning any living human being either male or female is person.
However, juridically, a person is classified in two groups, (i) natural persons, and
(ii) juridical persons.
The first group refers to a human being, who is an individual being capable of
assuming obligations and capable of holding rights.
The second group refers to those entities endowed with juridical personality.
What is legal personality ?
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GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.
Discuss in detail : Status of the unborn, minor, lunatic, drunken and dead persons.
Answer :
Refer :
http://ba-llb-handout-notes.blogspot.in/2015/11/persons-in-jurisprudence-
notes.html#
<first include here brief discussion on natural person>
Animals :
They are not persons because they do not possess rights and obligations.
Some people say that they are persons because law prohibits cruelty to them. They
should be treated sympathetically and kindly.
But this perception of moral right/ wrong is our cultural heritage. Rights always
correlate with duties. Since they do not have any duty so no rights and are not
persons although in ancient Roman law a rooster (a male domestic fowl; a cock)
was prosecuted and punished but in modern law, only the master of animals can be
sued and punished and not the animals itself.
According to Salmond, beasts are not persons, either natural or legal. A persons
duties towards animals are in fact duties towards the society itself. The society
does have an interest in the protection and well-being of animals.
Animals are merely things often the objects of legal rights and duties - but never
the subject of them.
Although the beasts are in capable of legal rights and duties and their interests are
not recognized by law but the legal history reveals that archaic codes contained
provisions regarding punishment to animals if they were found guilty of homicide.
In the ancient Hindu jurisprudence, killing of harmless animals like swans,
squirrels, cows , bulls, etc. was made punishable with fine.
Dead human beings :
According to Salmond,
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Dead man are no longer persons in the eye of the law. They lay down their legal
personality along with their lives, thereafter are as destitute of rights as of
liabilities.
They have no rights because they have no interests.
They do not even remain the owner of their property until their successors enter
upon their inheritance.
n law dead men are things and not persons.
They cease their rights and obligation at the moment they go away from this
world and their connection is cut down.
They are immune from duties and not subject of rights.
They have no rights and no interests.
However, the criminal law provides that any imputation against a deceased
person, if it harms the reputation of that person, if living, and is intended to hurt
the feelings of his family or other near relatives, shall be an offence of defamation
under section 499 of the indian penal code.
Moreover, the law also recognize the compliance of will, burial ceremony, no
defamation, no desecration of graves, but despite of this fact is that they are not
living persons and these duties lie to their legal heirs or living society members.
Salmond says that there are three things, more especially, in respect of which the
anxieties of living men extend beyond the period of their death in such sort that
the law will take notice of them.
These are a mans body, his reputation and his estate.
Dead persons are not recognized as legal persons but the testamentary dispositions
of the dead are carried out by law.
Statues of unborn babies :
In most of the jurisdictions, unborn persons have been given the legal status by
law.
There is very little acceptance of view of Paton who observed that, the child in
womb is not a legal personality and can have no rights.
His view is based upon the fact that the child should be born alive and should be
completely extruded from the mothers body before it can have any benefits
under the law.
However, this view is not tenable in most of the states.
In civil law they can sue after they are born. This can be done through their next
friends or at attaining the age of majority.
There is nothing in law to prevent a man from owning property before he is born.
His ownership is real and present ownership but it is contingent because he may
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GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.
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GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.
GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.
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Explain in detail giving illustration, the doctrine of strict liability. (Apr-2013, Mar-
2014).
Answer :
Refer :
V Good - CONCEPT OF LIABILITY -
http://shodhganga.inflibnet.ac.in/bitstream/10603/71969/7/07_chapter%205.pdf
https://en.wikipedia.org/wiki/Strict_liability
https://en.wikipedia.org/wiki/Strict_liability_(criminal)
https://en.wikipedia.org/wiki/Vicarious_liability
What is meant by Liability ?
In civilized societies most of the relation between the individual and the state are
governed by rules made or recognized by the state; that is, law. Law lays down the
rights and duties of the individuals.
In other words, it prescribes what one is to do and what one is not to do and what
one is entitled to get "it done.
A branch of these rules is called wrong. When a person has committed a wrong, he
is said to be liable.
Thus, liability is the condition of the person who has committed a wrong.
Liability or responsibility results from a wrong of breach of duty. It is something
which a person must do or suffer on account of his failure to do what he ought to
have done "duty.
A person has a choice in fulfilling his duty, but liability arises independently of ones
choice.
Liability is the "vinculum juris, i.e. the bond of legal necessity that exists between
the wrongdoer and the remedy of the wrong.
Liability differs from obligation in as much as the latter refers to what a person
ought to do on account of some duty cast upon him but the former refers to
something which the person must do or suffer because he has already failed to do.
Term 'liability' is used to express three things,
1) It has been used to express the position of person who has undertaken to do
or to abstain from doing something by contract with another person.
2) The term has been used to express the condition of person who has failed in
the performance of source duty, and who is consequently, called upon to make
compensation to some person who has suffered damage thereby.
3) The term liability has been used to express the condition of a person who
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has not failed in the performance of any duty, but who has done an act which
has caused damage to another for which he is required to make compensation.
Definition :
According to Salmond,
liability or responsibility is the bond of necessity that exists between the
wrongdoer and the remedy of the wronged.
According to Austin,
liability consists in those which a wrongdoer must do or suffer. It is the
ultimatum of law and has its source in the supreme will of the state.
Liability arises from a breach of duty which may be in the form of an act or
omission. Austin prefereds to call liability as imputability.
Classification of liability : Liability can be classified in to,
1. Civil and criminal.
2. Remedial and penal.
3. Strict or Absolute and vicarious.
1. Civil and Criminal Liability :
Civil liability consisits in enforcement of the right of the plaintiff against the
defendant in civil proceedings,
Criminal liability the purpose of the law is to punish the wrongdoer.
Difference b/w civil and criminal liability :
1.Crime is a wrong against the society but a civil wrong is a wrong against a
private individual.
2. The remedy for a crime is punishment but the remedy for civil wrongs is
damages.
3. The proceedings in case of crime are criminal proceedings but in case of a
civil wrong they are civil proceedings.
4. In a civil wrong, the liability is measured by the wrongful act and the
liability depends upon the act and not on the intention. On the other hand
liability in a crime is measured by the intention of the wrongdoer.
5. AUSTIN says : "an offence which is pursued at the discretion of injured
party or his representatives, is a civil injury. An offence which is pursued by
the sovereign or by the subordinates of the sovereign is a crime...All absolute
obligations are enforced criminally".
2. Remedial and penal liability :
Remedial liability :
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committed the forbidden act without wrongful intent but knowing the harmful
consequence of the act,
he will be punished.
Mensrea must extend to all three parts of the act ;
(i) the physical doing or not doing;
(ii) the circumstances;
(iii) the consequences
Legal wrongs may be divided into three types;
(a) intentional or Reckless wrongsin which mensrea is intention, purpose, or
design.
(b) Wrongs of Negligencein which the mensrea is mere carelessness, as
opposed to wrongful intent or foresight.
(c) Wrongs of Strict liability in which mensrea is not required. These wrongful
acts by themselves are wrongs and punishable.
Exceptions to mensrea : Generally penal liabilities arise only for those wrongful acts
which are done either willfully or negligently. There are, however, some exceptional
cases when law imposes strict liability as in case of offences under the lincensing
acts or offences against public health. In such cases, the act itself becomes
punishable even without the presence of guilty mind or negligence.
The criminal law exempts certain categories of cases from penal liability. These
are commonly known as defences or general exceptions and include mistake of
act, accidents, infancy, minority, necessity, self-defence, voluntary intoxication,
etc. ----- If the offender succeeds in establishing any of these defences, he is not
punished though his offence may satisfy the two conditions of actus and
mens rea".
When the law imposes strict liability, the requirement of guilty mind or mensrea
is dispensed with. In the interest of public safety, health, and social welfare,
many measures imposing strict liability have been legislated. In matters
concerning public health, food, drugs etc.,such strict liability is imposed.
Where mensrea is difficult to be proved, a guilty mind need not be proved in
such cases; provided that the penalties are petty fines.
In the interest of public safety, in deciding cases relating to public nuisance, it is
not necessary to take mensrea into consideration.
In those cases which are criminal in form but in fact they are only summary
mode of enforcing a civil rights, mensrea is not necessary.
Ignorance of law is no excuse is the maxim of another exception.
Interesting OFF topic page-62 of the reference URL : THE MEASURE OF CRIMINAL
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about the consequence and does the act notwithstanding the risk that may
ensure.
WINFIELD is also the supporter of this theory.
He says that as a mental element is tortuous liability, negligence usually
signifies total or partial inadvertence of the defendant to his conduct and for its
consequence
According to AUSTIN, want of advertence which ones duty would naturally
suggest, is the fundamental idea in the conception of negligence
In his opinion, a negligent wrongdoer is one who does not know that his act is
wrongful but would have known it had it not been because of his indolence and
inadvertence.
Thoughtless is thus the essence of negligence for AUSTIN.
AUSTIN goes a step further elaborating his subjective theory and distinguishes
negligence from heedlessness, rashness and recklessness. For him, negligence is
the state of mind of the person who inadvertently omits an act and breaks a
positive duty.
In heedlessness he does not think of probable mischief and does not bother
to avert the possible consequences.
In rashness, he does foresee the consequences but foolishly thinks that they
would not follow as a result of his act.
Recklessness, on the other hand is a condition of mind where the doer
foresees the consequences but does not care whether they result from his act
or not.
Thus, the line of distinction between rashness and recklessness is very thin.
In the former, there is erroneous thinking that consequences would not follow
while
in the latter the person does not bother about the consequences at all.
Sir JOHN SALMOND objects to the above sub-classification of negligence made by
AUSTIN and treats all these categories under the common law, namely,
negligence
The reason being that in all of them there is failure of exhibit the standard of
care required of a reasonable man.
In his opinion, AUSTINS view is fallacious because negligence may also be
deliberate or willful. He, therefore, concludes that the essence of negligence is
not inadvertence but carelessness which may or may not result in inaverfence ".
2. Objective Theory of Negligence :
According to this theory negligence is not a condition of mind but a particular kind
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For him, negligence is purely mental and nothing more than carelessness.
Professor GLANVILLE WILLIAM, the editor of SALMONDs jurisprudence has tried to
reconcile the above two conflicting theories of negligence stating that they are two
aspects of the same problem.
In his view, negligence is subjective when a particular consequence is to be
distinguished from the intended consequence.
In this sense, the pertinent question is whether the wrongdoer intended the
consequences or he was just indifferent to them.
On the other hand, when it is to be ascertained whether the consequence is
accidental or negligent, the objective theory would be appropriately applicable.
In this sense, the irrelevant question would be whether the defendant exhibited
the standard of care expected of a reasonable man under those circumstances.
The approach of Dr.GLANVILLE WILLIAM appears to be correct and more
practicable.
It is for this reason that negligence has been used in two senses in law of torts.
It is used in the sense of "state of mind as one of the general principles of
determining tortuous liability
while negligence as a tort is based on the objective theory.
Dr. M.J. SETHNA who attempted to developed a mind-behaviour theory has also
stated that negligence is a faulty behaviour arising out of faulty thinking.
It is both subjective and objective.
It is objective because it is something in the nature of external behaviour and
It is subjective because it arises from mental lethargy.
He is not in favour of maintaining compartmentalist theories of negligence that
is, subjective and objective, etc.
The theory which Dr.SETHNA develops is the mind-behaviour theory of
negligence - the theory of subjective-objective synthesis.
Conclusion :
The foregoing survey would, however, reveal that the traditional division of liability
into (i) civil and criminal, and (ii) remedial and penal, and to state that all criminal
liability is only remedial is not accurate in the present circumstance because such
liabilities are more often penal and more often remedial and such a division has
grown more complex in the modem day jurisprudence.
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Jurists have evolved several theories for giving a convincing answer. These theories
may be divided broadly into three classes.
1. One class of the theories is those that hold the primary function of the
criminal law is to preserve and increase the welfare of the state.
2. Another class of theories says that the chief aim of the criminal justice must
be infliction of punishment as retribution to the offender for the harm done and,
3. Thirdly, those that hold that punishment to the offender should be inflicted in
a way so as to reform him.
According to Salmond, the ends of criminal justice, are fivefold. They are,
1. Deterrant.
2. Retributive.
3. Preventive.
4. Expiatory.
5. Reformative.
1. Deterrent theory of punishment :-
Deter-> discourage, hinder.
Detterent ->serving to deter.
It is said to be deterrent when it is inflicted, with the object of showing,
The futility(worthlessness) of crime, and for not to repeat in the future.
Setting a lesson unto others.
The chief end of law of crime is to punish the evil doers.
The supporters of this theory are Bentham, Plato, Locke, Sophits etc.,
According to them inflicting of severe or drastic punishment so that terror
spreads into the hearts of people who may be criminally disposed with the
view to prevent the offender from committing the similar crime.
Execution of offenders should be openly done in the public, so that.
It will create the fear in the people, so that they will never risk to commit
the similar offence/ crime. But the entire history of penal law shows that
severity of punishment do not curtail the number of crimes.
And hence the theory of Deterrent has been subjected to critisicism, on the
ground that,
It would not prevent,
Nor create any fear in the minds of the habitual offenders.
2. Retributive theory of punishment :-
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It is based on morals.
According to this theory, expiation or repentance (feel regret about something) by
offender itself is a punishment..
If the offender expiates or repents, he must be forgiven.
It was in existence or prevalent in ancient Indian criminal law.
Expiations were performed by way of penance, uttering mantras, fasting, self
immolations were performed by way of uttering mantras, fasting, self-immolation
(sacrifice) of even burning oneself to death.
This theory is now obsolete (disused/discarded) as at present the organization of
state, its functions, human habits, attitudes have all developed to a great extent.
According to Paton this theory is based on moral doctrines and therefore, it is
beyond the limits of modern law and jurisprudence.
5. Reformative theory of punishment :-
This theory is of recent origin. It owes its origin to the Italian school. This theory
points out that a crime is a disease, so proper care should be taken of those who
have committed a crime instead of awarding a severe punishment.
So, according to this theory the punishment should be curative, medicinal, clinical
and educative rather than inflicting of physical injury or pain upon the wrong doer.
This theory concentrates not on crime, but on the criminal, his personality and all
other related factors which led him to do wrong.
It is a general truth that nobody wants to be a criminal. This theory the subject of
punishment is to find out the cause, the reason which compelled an individual to
commit a crime and then try to eradicate the criminals tendency by providing
education to him.
This theory makes a study of the psychology of the criminal and take punishments
as a means to a social end.
Reason for the commission of crime are :-
1. Offences are committed under the influence motive upon the character.
2. The defective mental condition of the criminal is also a reason for the
commission of crime.
In other words, crime is the result of a disease and the personality of the
offender and considers him to be a patient who should be given a proper
treatment.
According to this theory, punishment is not an end in itself but as a means to an
end.
The purpose of the theory, the punishment should be to reform the criminal and to
make him a good citizen.
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GO TO CONTENTS.
MODULE-4 QUESTIONS :
Explain in detail the juristic concept of possession with decided cases and its
essential elements. (Oct-2012, Apr-2013).
Explain in detail the meaning and concept of Possession. (Apr-2012, Mar2015).
Explain in detail the concept of possession and its essential elements with decided
case laws. (Mar-2014).
Discuss : Corpus Possessiones and Animus Possidendi.
Explain in detail the concept of ownership and state its kinds with decided case
laws. (Mar-2014, Apr-2016).
Explain in detail : Concept of ownership. (Apr-2012, Mar2015).
Discuss in detail : Distinction between ownership and possession.
Discuss in detail : Kinds of property.
GO TO CONTENTS.
MODULE-4 ANSWERS :
Explain in detail the juristic concept of possession with decided cases and its
essential elements. (Oct-2012, Apr-2013).
Explain in detail the meaning and concept of Possession. (Apr-2012, Mar2015).
Explain in detail the concept of possession and its essential elements with decided
case laws. (Mar-2014).
Discuss : Corpus Possessiones and Animus Possidendi.
Answer :
Refer :
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http://www.srdlawnotes.com/2017/02/possession.html
http://kulprasadpandey.com.np/ownership-and-possession/
http://www.desikanoon.co.in/2012/08/jurisprudence-notes-legal-concepts.html
Intro :
Meaning:
"Possession" literary means physical control over a thing or an object. It
expresses the closest relation of fact that can exist between a thing and the
person, who possess it.
In law, possession means it includes not only physical control over a thing but
also an intention to exercise that physical control.
Example: A has an article in his hand. In other words, he is in possession of that
article. The person who is in possession is called a 'Possessor'.
In human life, consumption of material things is very essential and it would be
Impossible without the position of the material things. Therefore the concept of
possession is of utmost practical importance in human life.
Definition :
The concept of possession is though basic and essential in human life, it is a
difficult to define. There is no fixed or precise definition of possession because it is
legal as well as factual concept.
Supreme Court in Superintendent Remembrancer Legal Affairs vs Anil Kumar, AIR
1980 SC 52, held that
it is impossible to work out a completely logical and precise definition of
Possession uniformly applicable to all situation in the context of all the statutes.
Salmond said that in the whole of legal theory there is no conception more difficult
than that of possession. It is very difficult to define the term Possession. Some
Jurists have given different definitions.
John Salmond :
Salmond defines Possession as, "possession is the continuing exercise of a claim
to the Exclusive use of an object."
Savigny :
Savigny defines Possession as, "intention coupled with physical power to exclude
others from the use of material object.
Salmond criticized Savingy's definition and ground that Savingy committed an error
by including the element of physical power in his definition.
O.W. Holmes :
Holmes defines Possession as, "To gain Possession a man must stand in a certain
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physical relation to the object and to the rest of the world, and must have
certain intent."
Maine:
Maine defines the possession as, "physical detention coupled with the intention
to hold the things detained as one's own.
Sir Frederick Pollock:
Sir Frederick Pollock defines Possession as, "In common speech a man is said to
possess to be in possession of anything of which he has the apparent control
from the use of which he has apparent power for excluding others."
Ihering:
The best among them is the definition given by Ihiring. According to him,
"whenever a person looked like an owner in relation to a thing, he had
possession of it unless Possession was denied to him by rules of law based on
practical convenience."
Importance of possession :
Possession is very important and the transfer of possession is one of the chief
methods of transferring ownership.
Salmond said that possession is of such efficacy that a possessor may in many
cases confer a good title on another, even though he has none himself.
Elements of Possession : corpus possessionis & animus possidendi :
From the above definitions we could see in that possession has two essentials -
1) Actual power over the object possessed. i.e. corpus possessionis and
2) Intention of the possessor to exclude any interference from others. i.e.
animus possidendi.
According to John Salmond, both corpus and animus must be present to constitute
Possession.
Ownership is a legal concept whereas Possession is factual as well as legal concept.
The term CORPUS and the term ANIMUS, both the terms borrowed from the Roman
Law.
Categories of Possession : Possession is divided into two categories.
a) Possession in fact and
b) Possession in law.
Possession in fact is actual or physical possession. It is physical relation to a thing.
Possession in law means possession in the eye of law. It means a possession
which is recognized and protected by law.
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5) Possession is protected as a part of law of tort. Law protects possession not only
from disturbance by force but from disturbance by fraud. The protection thus
afforded as a part of the law of tort.
Legal provisions :
6) Section 145 of CrPC deals with the dispute of immovable property to provide
speedy remedy for the prevention of breaches of peace out of such dispute.
The object of this section is to enable an executive Magistrate to intervene and
pass a temporary order in regard to the possession of the property in dispute, till
the competent civil court determines the right of the parties.
The executive Magistrate shall determine the possession of immovable property
on a particular date and issue an order declaring such party to be entitled to
Possession, thus restore to Possession to the party who was forcibly and
wrongfully dispossessed of.
7) Section 53a Transfer of Property :
Doctrine of part performance which provides, there is a contract of sale in
respect of immovable property where in transferor by writing, signed by him
agrees to transfer such immovable property and the transferee has taken the
Possession of the immovable property and continuous to be in possession of
immovable property and the transferee has done something in furtherance of
such transfer and ready and willing to perform transfers have done something
his part under the contract of transfer, then even though such contract is
required to be registered by any law and not registered in fact then also the
transferor id debarred from claiming any right against such transferee.
8) Section 47 sale of Goods Act:
right of the seller to lien. The seller if unpaid seller is and if the Possession is still
with the seller he can retain the goods.
9) Right of Bailee in contract of bailment:
Indian Contract Act 1872, Section. 170, 171. The Bailee too has a right to lien
the goods bailed to unless he is paid remuneration by Bailor till then he is
entitled to keep the position of the goods.
10) In offence of theft in IPC Section 378:
Possession is essential element. Even though the possession was wrongful and
the Possession of such thing is taken without the consent of the possessor with
dishonest intention
Case laws :
a) Elves v. Brigg Gas Co. 1886 Chancery Division.
Fact :
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In this case the plaintiff was the owner of the land. He gave his land to
defendant Company on lease for the purpose of excavation and erection of
gas works thereon. During the course of excavation one of the man of the
defendants Company found a pre-historic boat buried 6 feet below the
surface.
Issue:
Issue before the Court was whether the boat belonged to the landlord or
lessee.
Held:
J. Chitty observed that the landlord was entitled to the boat against the
Company though it was discovered by the Company. It was observed that it
was immaterial that the landlord was not aware of the existence of the boat.
He was in possession of the ground not merely of the surface. Hence
everything that lay beneath the surface down to the center of the earth
consequently in possession of the boat. It did not matter that the plaintiff was
not aware of the existence of the boat.
b) South Staffordshire Waterworks Co. V. Sharman, 1896.
Fact:
In the instant case Plaintiff Company appointed defendant servant to clean out
a pond upon their land and in doing so he found certain gold ring at the
bottom of it. Dispute arose between plaintiff Company and the defendant
servant as to the possession of the gold ring.
Issue:
To whom the Gold ring belong?
Held:
The plaintiff Company was in first possession of the gold ring and is not the
defendant, who acquired no title to them. It was observed that the possession
of land carries with it in general possession of everything which is attached to
or under the land.
Conclusion:
Possession is the most basic relation between man and a thing.
Possession is prima facie a proof or an evidence of ownership.
There is no fixed or precise definition of possession because it is legal as well
factual concept.
The four essentials of possession are,
subject matter of possession,
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physical control,
intention and
knowledge.
GO TO MODULE-4 QUESTIONS.
GO TO CONTENTS.
Explain in detail the concept of ownership and state its kinds with decided case
laws. (Mar-2014, Apr-2016).
Explain in detail : Concept of ownership. (Apr-2012, Mar2015).
Answer :
Refer :
http://kulprasadpandey.com.np/ownership-and-possession/
http://www.desikanoon.co.in/2012/08/jurisprudence-notes-legal-concepts.html
http://kuklawnotes.blogspot.in/p/jurisprudence-1-what-is-administration.html
Introduction :
The idea and concept of ownership developed slowly with the growth of civilization.
In primitive societies the only concept known to human mind was that of
possession. It was much later that the concept of ownership adopted.
So long as the people were wandering from place to place and had no settled place
of residence, they had no sense of ownership. The idea began to grow when they
started planting trees, cultivating lands and building their homes.
The transition from a pastoral to an agricultural economy helped the development
of the idea and concept of the ownership.
The normal case of ownership can be expected to exhibit the incidents as follows :
First, the owner will have a right to possess the thing which s/he owns.
Secondly, the owner normally has the right to use and enjoy the thing owned.
Thirdly, the owner has the right to consume, destroy or alienate the thing.
Fourthly, ownership has the characteristics of being indeterminate in duration.
Fifthly, ownership has a residuary character.
Meaning and definition of ownership :
The literal meaning of the term own is to have or hold a thing. The one who holds
a thing as his own is said to be the owner and has right of ownership ever it.
Thus in the non-legal sense ownership may be defined as the right of exclusive
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He adds that it applies not only to rights in the strict sense but also to
liberties, powers and immunities.
Salmonds definition thus points out two attributes of ownership :-
a) Ownership is a relation between a person and rights that is vested in
him;
b) Ownership is incorporeal (immaterial, having no material body or form).
For Salmon a man may own a copyright or a right of way in the same way as
s/he owns a piece of land because in all the cases s/he owns only a right and
not a thing.
Hohfield expresses a similar view (like that of Salmond) when he says
ownership is not a right but a bundle of rights, privileges, powers etc.
Duguit has defined,
Ownership is a relation between a person and a thing. On account of this
relation the person has the power of disposal, use and enjoyment of the thing.
Essentials of ownership :
i. ownership is indefinite in point of user. It is impossible to define or sum up
exhaustively the wide variety of ways in which the thing owned may be used by the
person entitled to its ownership.
ii. ownership is unrestricted in point of disposition. An owner can effectively dispose
of his property by a conveyance during his lifetime or by will after his death.
iii. The owner has a right to possess the thing which s/he owns.
iv. The owner has the right to exhaust the thing while using it, if the nature of the
thing owned is such.
v. Another essential of ownership is that it has a residuary character. An owner may
part with several rights in respect of the thing owned by him/her.
vi. Generally, the owner has the right to destroy or alienate the thing s/he owns.
Characteristics of ownership :
i. Ownership is absolute or restricted. It may be limited to a lesser or greater
extent, either voluntarily or under compulsion of law.
ii. Right of ownership may also be restricted national emergency.
iii. An owner has to pay taxes to the state and exercise of his right of ownership.
iv. An owner must not exercise his right of ownership in such a way as to infringe
the right of other owners.
v. An owner has not the freedom to dispose of his property in any way he likes.
S/he can not transfer the property to defraud his creditor.
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vi. Infants and lunatics are under a disability in the eye of law because they can
neither understand the true nature of their acts nor the consequences.
vii. Ownership does not generally terminate with the death of the owner. It passes
to legal heirs in case of intestacy.
Nature of ownership :
a) Ownership is a right which comprises of powers, claims, privileges, etc.
b) Ownership is in respect of a thing which may be corporeal or incorporeal.
c) The rights relating to or in connection with ownership are subject to state
regulation i.e., can be limited or restricted by law.
d) Owner is he who is entitled to the residue of rights with respect to an object left
AFTER the limitation resulting from the voluntary acts of the owner (mortgage,
lease or hire) or those imposed by law are exhausted,
e) Ownership does not imply or indicate absolute or unlimited rights either
regarding use, disposal or duration.
The subject matter of ownership :
The prime subject matter of ownership consists of material objects such as land
and chattels.
But ownership is by no means limited to things of this category. A human beings
wealth may consist of such things as
interests in the land of others, debts due to him, shares in companies, patents,
designs, trademarks, copyrights and so on.
Classification of ownership : Kinds of ownership : Ownership may be of various
kinds. Broadly, it may be classified under the following heads :
I. Vested and Contingent ownership
II. Sole and Co-ownership
III. Corporeal and Incorporeal ownership
IV. Legal and Equitable ownership
V. Trust and Beneficial ownership
VI. Absolute and Limited ownership
I. Vested and Contingent ownership :
Ownership is either vested or contingent.
It is vested when the owners title already perfect,
it is contingent when his title is as yet imperfect, but is capable of becoming
perfect on the fulfillment of some condition.
In the former case the ownership is absolute; in the latter it is merely
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Ownership may be described as the entirety of the powers of use and disposal
allowed by law. The owner of a thing is not necessarily the person who at a given
time has the whole power of use and disposal; very often, there is no such person.
We must look for the person having the residue of all such power when we have
accounted for every detached and limited portion of it, and s/he will be the owner
even if the immediate power or control and user are elsewhere.
Possession and ownership differ in their mode of acquisition.
The transfer of possession is comparatively easier and less technical but the
transfer of ownership in most cases involves a technical process of convincing.
Ownership Possession
9 Ownership only does not carry Possession may create ground for the
practical use in the absence of ownership as well.
possession.
10 Ownership does not get priority if Possession is the real and basis of
there is an equal right over the priority for the situation of equal
same property. rights.
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Suggested Reading :
Bodenheimer Jurisprudence - The Philosophy and Method of Law (1996), Universal.
Delhi.
Fitrgerald, (ed) Salmond on Jurisprudence, Tripathi, Bombay.
W. Friedrnann, Legal Theory, Universal, Delhi,
V. D. Mahajan, Jurisprudence and Legal Theory, Eastern, Lucknow M.D.A. Freeman (ed),
Lloyd's Introduction to Jurisprudence, Sweet & Maxwell Paton G. W., Jurisprudence
Oxford, ELBS
H.L.A. Hart the concept of law, Oxford, ELBS
Roscoe pond introduction to the philosophy of Law, Universal Delhi
Dias, Jurisprudence, Adithya Books New Delhi.
Dhyani S.N. Jurisprudence A Study of Indian Legal Theory, Metropolitan, New Delhi.
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