JURISPRUDENCE,

INTERPRETATION AND
GENERAL LAWS

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 HEADSHOT ABOUT WHAT YOU WILL STUDY IN THIS CHAPTER
Lesson 1 - Sources of Law
Law and Its Role in Society
Law is dynamic, evolving with societal changes to meet people's needs and aspirations.
It should reflect the customs and general principles of the society it governs. The
primary objective of law is to provide security and order, ensure socio-economic
justice, and address imbalances in the system. Law plays a vital role in achieving social
goals, as envisioned in the Constitution, acting as a tool for social change and justice.
Lesson Objectives:
• Understand the meaning and significance of law.
• Explore the relevance of law to civil society.
• Introduce the concepts of jurisprudence and legal theory.

CONTENTS

• Introduction • Doctrine of Stare Decisis

• Natural School • Statutes or Legislation
• Positivistic Definition of Law • Personal Law
• Historical Definition of Law • Secondary Source of Indian Law
• Sociological Definition of Law • Justice, Equity and Good Conscience
• Realist Definition of Law • Sources of English Law
• Significance of Law • Mercantile or Commercial Law
• Sources of Indian Law • Sources of Mercantile Law
• Principal Sources of Indian Law • Mercantile Law in India
• Classification of Customs • Sources of Indian Mercantile Law
• Requisites of a Valid Custom • jurisprudence
• Judicial Decision or Precedents • Legal Theory
• High Courts • Criticism of Austin’s Command Theory of law
• Supreme Court • Criticism of Kelsen’s Pure Theory
• Kinds of Precedents • Criticism of Bentham’s theory of law

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INTRODUCTION
The nature and meaning of law have been defined differently by various jurists, reflecting
different perspectives based on the time and context. This lack of unanimity arises because
law is viewed through different lenses, such as its nature, source, function, and purpose. While
it's hard to give a single, unchanging definition of law, referring to these varied definitions helps
build a comprehensive understanding of the concept.
We may classify various definitions into five broad classes: Natural, positivistic, historical,
sociological and realistic.

Mnemonic: "Nanny Puts Hats So Red"

• Nanny = Natural
• Puts = Positivistic
• Hats = Historical
• So = Sociological
• Red = Realistic

This should help you quickly recall the five broad classes of definitions of law!

NATURAL LAW SCHOOL

The Natural Law School believes that certain rights are inherent in human nature and can be
understood through reason. Ancient jurists like Ulpian, Cicero, and Justinian focused on justice
as the core of law. In Hinduism, law is seen as God's command, part of "Dharma." Salmond
defined law as principles applied by the state in justice, while Vinogradoff saw law as rules
enforced by society to allocate power over people and property.

Mnemonic: "Uncle Charlie Jumps High, Singing Vividly"

• Uncle = Ulpian (Ancient jurist)
• Charlie = Cicero (Ancient jurist)
• Jumps = Justinian (Ancient jurist)
• High = Hinduism (Dharma concept of law)
• Singing = Salmond (Law as principles applied in justice)
• Vividly = Vinogradoff (Law as rules enforced by society)

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 Breakdown:
• Ulpian, Cicero, and Justinian emphasize justice in law.
• Hinduism sees law as God's command (Dharma).
• Salmond: Law as principles applied by the state in justice.
• Vinogradoff: Law as rules enforced by society.
This mnemonic should help you quickly recall the key points of the Natural Law School!

POSITIVISTIC DEFINITION OF LAW

John Austin's positivist definition of law states that law is a set of rules established by a
sovereign authority, backed by sanctions, and involving command, duty, and sanction.
Kelsen's "pure theory of law" sees law as a normative science that prescribes "ought" rather
than describing "is," with all legal norms deriving their power from the ultimate norm, the
"Grundnorm."

Mnemonic: "A King’s Pure Command"

• A = Austin (John Austin’s definition of law)
• King’s = Kelsen (Kelsen’s Pure Theory)
• Pure = Pure theory (Kelsen’s view of law as a normative science)
• Command = Command (Austin’s view that law is a command backed by
sanctions)
Breakdown:
• Austin: Law is a set of rules from a sovereign authority, backed by sanctions,
involving command, duty, and sanction.
• Kelsen: Law is a "normative science" with norms deriving power from the
ultimate norm, "Grundnorm."
This mnemonic should help you easily recall the main elements of Positivistic
Definition of Law!

HISTORICAL DEFINITION
Savigny's historical theory of law suggests that law evolves organically, found rather than
made, and varies with culture and time. Custom, superior to legislation, reflects the popular
consciousness (Volk Geist). Legislation is the final stage of lawmaking, with jurists more
important than legislators. Sir Henry Maine linked the concept of law to "order" and "force."

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 Mnemonic: "Savvy Custom Legislation Forces Order"
• Savigny: Law evolves organically.
• Custom: Superior to legislation, reflects popular consciousness (Volk Geist).
• Legislation: Final stage of lawmaking.
• Force: Maine's concept linking law to order and force.
• Order: Sir Henry Maine's emphasis on law maintaining societal order.
This mnemonic helps remember the key concepts: Savigny’s organic evolution,
custom’s primacy, legislation’s final stage, and Maine’s link to order and force.

SOCIOLOGICAL DEFINITION OF LAW

Duguit defines law as a social fact, while Ihering sees it as a guarantee of societal conditions
enforced by the state's power. This view highlights law as a tool for social control, serving a
social purpose, and being coercive. Roscoe Pound views law as an instrument of social
engineering, balancing political, economic, and ethical interests to satisfy societal needs and
regulate human conduct through organized society.

Mnemonic: "Duguit Guarantees Social Engineering"

• Duguit: Law as a social fact.
• Guarantees: Ihering’s view of law as a guarantee of societal conditions.
• Social: Law as a tool for social control and societal purpose.
• Engineering: Roscoe Pound’s view of law as social engineering, balancing
interests and regulating conduct.
This mnemonic helps recall Duguit’s social fact, Ihering’s guarantee, and Pound’s
social engineering in the sociological definition of law.

REALIST DEFINITION OF LAW

Realists define law through the judicial process. Holmes sees law as a statement of when
public force will be applied through courts, while Cardozo defines it as a rule of conduct that
courts will enforce if challenged. Law regulates human conduct to promote harmony and
balance conflicting interests in society, ensuring peace and order. Key characteristics of law
include: it presupposes a state, is made or recognized by the state, has sanctions, and serves
a purpose. Laws can be mandatory, prohibitive, or permissive, each dictating specific actions
or conduct.

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 Mnemonic: "Holmes, Cardozo, and Balance Serve Peace"
• Holmes: Law is a statement of when public force will be applied.
• Cardozo: Law is a rule of conduct enforced by courts if challenged.
• Balance: Law promotes harmony and balances conflicting interests.
• Serve: Law serves a purpose, ensuring peace and order.
This mnemonic helps remember Holmes’ and Cardozo’s views on law, as well as the
key characteristics of law in the realist definition.

SIGNIFICANCE OF LAW
Law has evolved over centuries, shaped by statutes, judicial decisions, customs, and
conventions. As society changes, so do laws, adapting to new circumstances. Modern
science, technology, and materialism have significantly transformed law, shifting from abstract
justice to social justice. Today, law aims to provide security, socio-economic justice, and
address societal imbalances, while promoting social change and justice in line with
constitutional goals.

Mnemonic: "Society Shifts, Law Adapts, Justice Secures Change"

• Society: Law evolves with society.
• Shifts: Laws adapt to new circumstances.
• Law: Modern law balances security, justice, and social change.
• Adapts: Driven by statutes, judicial decisions, customs, and conventions.
• Justice: Focuses on socio-economic justice and constitutional goals.
• Secures: Aims to secure societal balance and promote social change.
• Change: Law plays a role in promoting social transformation and justice.
This mnemonic encapsulates the evolution and the purpose of law in modern society.

SOURCES OF INDIAN LAW

The term "sources of law" has different meanings. Austin says law comes from the sovereign,
Savigny links it to the people's collective consciousness, sociologists see it as arising from
social factors, and theologians believe it originates from God. Despite varying views, law
generally comes from similar sources in most societies.

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The modern Indian law as administered in courts is derived from various sources and these
sources fall under the following two heads:
1. Principle sources of Indian law.
• Customs or Customary Law
• Judicial Decisions or Precedents
• Statutes or Legislation
• Personal Law e.g., Hindu and Mohammedan Law, etc.
2. Secondary sources of Indian law.
• Justice, Equity and Good Conscience
• Sources of English Law

Mnemonic for Sources of Indian Law:

"CJS-P, J.E.S"
• C: Customs (Customary Law)
• J: Judicial Decisions (Precedents)
• S: Statutes (Legislation)
• P: Personal Law (Hindu, Mohammedan Law, etc.)
• J.E.S: Secondary sources
o J: Justice, Equity, and Good Conscience
o E: English Law (Sources of English Law)
o S: Secondary Sources
This mnemonic captures the key sources of Indian law in two main categories: primary
(Customs, Judicial Decisions, Statutes, Personal Law) and secondary sources
(Justice, Equity & Good Conscience, English Law).

Customs or Customary Law

Custom is the oldest source of law, once crucial but now less so due to legislation and
precedent. In primitive societies, customs developed naturally to regulate life, becoming
established through repetition. In ancient Hindu law, many rules in the Smritis and
commentaries originated from customs, which were strongly recommended and recognized
as a re-orienting force in Indian law.
The Hindu Marriage Act, 1955 recognizes various customary laws, such as:
1. Customary marriage forms like Saptapadi (seven steps around the fire).
2. Marriage by regional customs (e.g., daaj or kanyadan).
3. Polygamy in certain communities, if practiced before the Act.
4. Divorce by customary practices, like mutual separation (Chhuda).

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These examples show how the Act incorporates traditional customs into modern legal
frameworks.
Classification of Customs
The customs may be divided into two classes:
– Customs without sanction.
– Customs having sanction.
Customs without sanction are those customs which are non-obligatory and are observed
due to the pressure of public opinion. These are called as “positive morality”. Customs having
sanction are those customs which are enforced by the State. It is with these customs that we
are concerned here. These may be divided into two classes: (i) Legal, and (ii) Conventional.
(i) Legal Customs: These customs operate as a binding rule of law. They have been
recognised and enforced by the courts and therefore, they have become a part of the law of
land. Legal customs are again of two kinds: (a) Local Customs (b) General Customs.
(a) Local Customs: Local custom is the custom which prevails in some definite locality and
constitutes a source of law for that place only. But there are certain sects or communities which
take their customs with them wherever they go. They are also local customs. Thus, local
customs may be divided into two classes: – Geographical Local Customs – Personal Local
Customs These customs are law only for a particular locality, section or community.
(b) General Customs: A general custom is that which prevails throughout the country and
constitutes one of the sources of law of the land. The Common Law in England is equated
with the general customs of the realm.
(ii) Conventional customs, or "usages," are binding based on an agreement between parties,
not legal authority. For a court to recognize them in a contract, the following conditions must
be met: the custom must be well-established and known to the parties, it cannot conflict with
general law, and it must be reasonable. These customs can be general or local, with local
customs applying to specific places, markets, trades, or transactions.

Mnemonic for Customs or Customary Law:

"C-H-I-C-L-G"
• C: Customs (Oldest source of law, now less significant)

• H: Hindu Marriage Act, 1955 (Recognizes customs like Saptapadi, regional customs, polygamy, divorce)

• I: Institutionalization of customs (Incorporation of customs into modern legal frameworks)

• C: Classification of Customs (Divided into two classes)

• L: Legal Customs (Binding rules of law: Local and General)

• G: General Customs (Customs prevailing across the country)

• C: Conventional Customs (Customs based on agreements, must be well-known, reasonable, and non-
conflicting)

This mnemonic captures the key points about Customary Law and its classification, covering the
importance of customs in the Hindu Marriage Act, the two classes of customs (Legal & Conventional), and
the various types like Local and General Customs.

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REQUISITES OF A VALID CUSTOM
Essential Conditions for Valid Custom:
1. Immemorial (Antiquity): A custom must be ancient and long-established. In India, it only
needs to be proven as ancient, unlike English Law, which requires a custom to date
back to 1189.
2. Certainty: The custom must be clear, definite, and not vague.
3. Reasonableness: The custom must be reasonable, useful, and aligned with justice,
equity, and good conscience.
4. Compulsory Observance: The custom must have been consistently followed without
interruption and regarded as binding.
5. Conformity with Law and Public Morality: The custom should not conflict with law,
public policy, or statutory provisions.
6. Unanimity of Opinion: The custom must be general and not subject to individual choice.
7. Peaceable Enjoyment: The custom must be followed peacefully without legal disputes.
8. Consistency: The custom should not conflict with other established customs.

(ii) JUDICIAL DECISION OR PRECEDENTS

In the judicial field, "precedent" refers to past court decisions that guide future cases. Judicial
precedents are decisions that establish new legal principles and are a key source of law. They
are especially significant in countries influenced by English jurisprudence. The doctrine of
stare decisis ensures that court decisions are followed in similar future cases. Precedents are
recognized because court decisions are presumed correct, providing legal certainty, fairness,
and confidence in the justice system.

HIGH COURTS
1. High Court Decisions: Decisions of a High Court are binding on subordinate courts
within its jurisdiction. Decisions of one High Court have persuasive value in another
High Court's jurisdiction, but if they conflict with the latter’s decisions, the latter's ruling
is binding. In case of conflicting decisions from co-equal Benches, the later decision is
generally followed.
2. Court Benches: In a High Court, a single judge forms the smallest Bench, a two-judge
Bench is a Division Bench, and three or more judges form a Full Bench. A decision by
a Full Bench binds smaller Benches. A Division Bench’s decision is binding on a single
judge. If a Bench disagrees with another, it should refer the matter to a Full Bench.
3. Inter-High Court Decisions: Decisions of one High Court are not binding on another,
only persuasive. Pre-Constitution Privy Council decisions remain binding unless
overruled by the Supreme Court.

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 4. Supreme Court Decisions: The Supreme Court’s decisions are binding on all courts in
India (Article 141). Only the ratio decidendi (legal principle) of its decisions is binding,
not every statement made in the judgment.

SUPREME COURT
Article 141’s reference to "all courts" excludes the Supreme Court, which is not bound by its
own decisions. However, the Supreme Court typically follows its past rulings unless there are
exceptional reasons to depart from them, such as when a decision is found to be erroneous
and harmful to public welfare. English decisions hold only persuasive value in India, and the
Supreme Court is not bound by decisions of the Privy Council or Federal Court. In India, lower
courts must follow the decisions of higher courts, but higher courts are not bound by their own
precedents, unlike in England.

Kinds of Precedents
Precedents may be classified as:

• Declaratory and Original Precedents

• Persuasive Precedents
• Absolutely Authoritative Precedents
• Conditionally Authoritative Precedents

1. Declaratory and Original Precedents:

o Declaratory Precedent: Applies an existing rule of law. It is a valid source of
law but does not create new law.
o Original Precedent: Establishes a new rule of law and is crucial for legal
development. Both are equally authoritative, but original precedents have
greater importance.
2. Persuasive Precedents: These are not binding but are considered by judges due to
their perceived merit. They are historical sources of law, such as decisions from other
High Courts, English, and American courts, or obiter dicta.
3. Absolutely Authoritative Precedents: These must be followed by judges, even if
they disagree. They are legally binding, such as decisions from higher courts (e.g.,
Supreme Court in India or House of Lords in England).
4. Conditionally Authoritative Precedents: These are generally binding but can be
disregarded if they are found to be incorrect or against law and reason. For example,
a single judge’s decision is binding on subordinate courts but only conditionally binding
on a Division Bench of the same High Court.

DOCTRINE OF STARE DECISIS

The doctrine of stare decisis means "adhere to established decisions" and aims to bring
certainty and uniformity in law. It requires courts to follow settled legal principles in similar

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cases, ensuring consistency. While important, it is not absolute and should not be applied
rigidly if it undermines justice.

RATIO DECIDENDI
Ratio Decidendi refers to the underlying legal principle or reasoning behind a judicial decision,
which is binding as a precedent. It is the necessary proposition of law derived from the material
facts of a case. The ratio applies to similar future cases, unlike the obiter dicta, which are
statements made "by the way" and not essential to the decision. Obiter dicta are persuasive,
not binding, and may influence legal reform. Determining the ratio decidendi from obiter dicta
can be challenging, and only judges can determine the binding legal principle in a case.

(III) STATUTES OR LEGISLATION

Legislation is the creation of legal rules by an authority empowered by the Constitution. It is
also called "enacted law" or "jus scriptum" (written law), in contrast to customary law.
Legislation can be supreme or subordinate. Supreme legislation originates from the
sovereign power, like Acts of Parliament, and cannot be repealed by any other authority.
Subordinate legislation comes from authorities other than the sovereign power and depends
on superior authority for validity. Examples include rules made by the judiciary or executive,
known as delegated legislation, or by bodies like municipalities. Courts can review
subordinate legislation to ensure it doesn’t exceed the authority granted by the parent Act.

(IV) PERSONAL LAW

Courts often apply personal law when statutory law or custom does not cover an issue. For
Hindus, personal law is based on the Shruti (Vedas) and Smritis (ancient teachings),
particularly the Codes of Manu, Yajnavalkya, and Narada. Hindus are governed by their
personal law, modified by statutes like the Hindu Succession Act, 1956, in matters of
inheritance, marriage, adoption, succession, and more. For Mohammedans, personal law is
derived from the Koran, Hadis (sayings and actions of Prophet Mohammed), Ijmas
(consensus of companions), and Kiyas (reasoning by analogy). They are governed by
personal law, modified by statutes, in areas like inheritance, marriage, divorce, and
guardianship.

SECONDARY SOURCES OF INDIAN LAW

(I) Justice, Equity and Good Conscience
The concept of “justice, equity, and good conscience” was introduced by Impey’s
Regulations of 1781. In personal law disputes, if statutory law, custom, or personal
law does not apply, Indian courts may rely on this principle, often using English law
modified for Indian circumstances. The doctrine originated with British
administration in India, where High Court charters directed courts to decide cases
in accordance with justice, equity, and good conscience when no specific law

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 existed. It has been interpreted to mean English law principles adapted to India,
and the Supreme Court has confirmed that courts can apply these principles in the
absence of Hindu law, unless inconsistent with it.

(II) SOURCES OF ENGLISH LAW

The main sources of English law, which heavily influence Indian law, are:
(i) Common Law: Developed over time through judicial decisions based on
customs and precedents, Common Law is unwritten and applies universally
across England.
(ii) Law Merchant: Refers to customs and usages binding on traders. For a
custom to be legally binding, it must be ancient, general, and universally
followed.
(iii) Principle of Equity: Originated in the Courts of Chancery, where decisions
were based on natural justice and conscience, addressing the gaps or
inadequacies in Common Law. Key principles include "He who seeks equity
must do equity" and "He who comes to equity must come with clean hands."
(iv) Statute Law: Derived from legislation by Parliament or delegated bodies,
statute law overrides Common Law and Equity. Key statutes in Mercantile
Law include the English Partnership Act, Sale of Goods Act, Bankruptcy
Act, and Companies Act.

MERCANTILE OR COMMERCIAL LAW

There are many branches of law; viz.,
(i) Constitutional law
(ii) Administrative law
(iii) Criminal law
(iv) Civil law
(v) Mercantile or commercial law

Mercantile Law governs commercial activities and business transactions. It applies

to trade and commerce and encompasses all legal principles related to business
dealings. The core element of such transactions is the existence of a valid
agreement between the parties, either express or implied. Also known as Law
Merchant or Lex Mercatoria, Mercantile Law originated from the customs and
usages of merchants in England and became part of the Common Law.

Sources of Mercantile Law

The following are the main sources of Mercantile Law:

• Law merchant
• Statute Law
• Common Law
• Principles of equity
• Sources of mercantile law

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MERCANTILE LAW IN INDIA
Before 1872, mercantile transactions were governed by the personal laws of the parties
involved (e.g., Hindu Law, Mohammedan Law). In 1872, the Indian Contract Act was enacted
to codify and establish uniform principles of mercantile law. Since then, various Acts have
been introduced to regulate transactions related to partnership, sale of goods, negotiable
instruments, and more.

SOURCES OF INDIAN MERCANTILE LAW

The main sources of Indian Mercantile Law are:
(i) English Mercantile Law: Indian Mercantile Law is largely based on English Mercantile
Law, with modifications to suit local customs and conditions. In the absence of specific
provisions in Indian law, English Mercantile Law is often referred to.
(ii) Acts Enacted by Indian Legislature: Key Indian Acts related to Mercantile Law include
the Indian Contract Act, 1872; Sale of Goods Act, 1930; Indian Partnership Act, 1932;
Negotiable Instruments Act, 1881; Arbitration and Conciliation Act, 1996; and the Insurance
Act, 1938.
(iii) Judicial Decisions: Judges interpret laws and, when silent, base decisions on principles
of justice, equity, and good conscience. Judicial precedents, especially binding precedents,
play a crucial role in shaping law. Prior to independence, Privy Council decisions were binding,
but post-independence, the Supreme Court of India is the final authority.
(iv) Customs and Trade Usages: Despite codification, customs and trade usages remain
significant in Indian law. Many statutes, like the Indian Contract Act and Negotiable
Instruments Act, acknowledge the importance of local customs and trade usages in certain
cases.
JURISPRUDENCE
Jurisprudence, derived from "juris" (law) and "prudence" (knowledge), is the study of the
science of law, focusing on general concepts, principles, and philosophies rather than specific
statutes. It examines the nature of law, its abstract rules, and its social function in maintaining
order. Various schools of jurisprudence emphasize different aspects: analytical jurisprudence
focuses on the theoretical foundation of law, sociological jurisprudence considers law's role in
addressing social issues, and teleological jurisprudence seeks the purposes law should serve.
Salmond divides jurisprudence into civil, international, and natural jurisprudence, with civil
jurisprudence further divided into systematic, historical, and critical jurisprudence. Jeremy
Bentham viewed jurisprudence both as law (substance and history) and as theory
(philosophical principles). Prof. G.W. Paton defined jurisprudence as the study of the
relationship between law, legal concepts, and society, emphasizing the development of legal
systems to resolve disputes and drive social progress.

Legal Theory
Legal theory is the study of the basic ideas and principles behind laws. There are two main
types of legal theories:

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 1. Positive legal theory: This focuses on understanding what the law is—how laws work
and what they do in the real world. It doesn't look at whether the laws are good or bad,
but just how they exist and function.
2. Normative legal theory: This is about what the law should be. It looks at what laws
ought to be in order to be fair, just, and ethical.
Some other theories look at how law is connected to society, the economy, history, or power
struggles, like sociological, economic, and critical legal theories.
One important legal thinker, John Austin, came up with the Command Theory of Law. He
said that:
1. Law is a command or order from a powerful authority (called the sovereign) to people.
2. Sovereign is the person or body that everyone follows but doesn't follow anyone else.
3. Sanctions are the punishments that happen if you don’t follow the law.
Austin’s view is that for something to be a law, it must have punishment attached to it. Without
punishment for breaking the law, it’s not really law. But rewards (positive incentives) are
different from punishments—they don’t make something a law.
In short, Austin believed that laws are rules set by a sovereign power, and they are only
effective if there’s a punishment for not following them.

Criticism of Austin’s Command Theory of Law:

1. Welfare Laws: Modern welfare laws that grant rights and benefits, rather than issuing
commands, do not fit into Austin’s theory.
2. Sovereign Power: Austin’s idea that the sovereign doesn't need to obey anyone
conflicts with the reality that modern states, like India, are limited by constitutional and
international laws.
3. Judicial Lawmaking: Austin overlooked the role of judges in making laws. Judges
often create laws, not just follow commands from the sovereign.
4. International Law: Austin's theory cannot recognize international law because it lacks
a sovereign to enforce it.
Roscoe Pound’s Sociological Jurisprudence:
Roscoe Pound, a key advocate of sociological jurisprudence, emphasized considering social
realities when creating and applying laws. He proposed the Social Engineering Theory,
where law helps build an efficient society by balancing competing interests. This requires:
1. Recognizing individual, public, and social interests.
2. Defining the limits for recognizing and protecting these interests.
3. Securing these interests within the legal boundaries.
Pound's approach involves five steps:
1. Inventory and classification of interests.
2. Selection of interests to be legally recognized.

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 3. Defining limits for securing those interests.
4. Determining how laws will secure the interests.
5. Evolving principles to value these interests.

Roscoe Pound’s Classification of Interests:

1. Individual Interests: These are personal claims or demands focused on an
individual’s life and concerns:
o Interest of Personality: Includes physical integrity, freedom, privacy, honor,
and conscience.
o Interest in Domestic Relations: Covers family relationships (e.g., parents,
children, spouses).
o Interest of Substance: Relates to property, freedom of association,
employment, inheritance, and contracts.
2. Public Interests: These are interests asserted from the standpoint of political life:
o State as a Juristic Person: Includes the state's integrity, freedom, and honor,
as well as property held for state purposes.
o State as Guardian of Social Interest: Protecting the social well-being of
society.
3. Social Interests: These concerns focus on the general welfare of society:
o General Security: Safety, health, peace, and transaction security.
o Security of Social Institutions: Protecting domestic, religious, political, and
economic institutions.
o Social Morals: Laws on issues like gambling, prostitution, and bigamy.
o Conservation of Social Resources: Protecting natural and human resources.
o General Progress: Economic, political, and cultural development.
o Individual Life: Ensuring opportunities and conditions for individual well-being,
as individuals are the foundation of society.
Balancing Competing Interests: Pound emphasized that interests must be compared on the
same plane. Individual and social interests should not be weighed against each other in
isolation, but rather considered in the broader social context for meaningful comparison.

Criticism of Roscoe Pound’s theory of law

Criticism of Pound’s Theory of Interests:
1. Creation of Interests by Laws: Pound claimed that interests pre-exist laws, but many
interests today are created by laws themselves.
2. Lack of Evaluation Criteria: The theory lacks a clear method for evaluating interests.
It is not the interests, but the ideals by which they are judged, that matter.

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 3. Role of Judges: Pound's theory gives more importance to judges than legislators, as
judges interpret interests in legal cases, influencing the balance of competing interests.
4. Distinction between Interests: The distinctions between public, social, and individual
interests are questionable. The important factor is the ideal used to evaluate interests,
not their classification.
5. Policy-Based Recognition of Interests: Recognizing new interests is a matter of
policy, and the mere listing of interests is not enough to resolve disputes.
John William Salmond's Contribution:
Salmond, a prominent legal scholar, emphasized the purpose of law as delivering justice. He
differed from Bentham and Austin, who analyzed law without considering its purpose. He
distinguished between ‘a law’ (concrete, specific laws like the IPC) and ‘the law’ (abstract
principles, like civil law).
According to Salmond, law is a set of principles recognized and applied by the state in
administering justice. He argued that justice requires the use of compulsion to resolve conflicts
and maintain order in society.
Salmond viewed the administration of justice as the state’s primary function, with laws being
secondary and developed to support it. He suggested that courts, guided by equity and good
conscience, could administer justice even without laws. Over time, however, a system of fixed
legal principles, derived from statutes, precedents, and customs, forms the basis for the courts'
decisions. This evolution leads to justice according to law, where courts apply established
principles rather than personal judgment.

Criticism of Salmond’s Theory:

1. Unjust Laws: Salmond's view that law’s purpose is to achieve justice doesn't always
hold, as some laws are unjust.
2. Multiple Purposes of Law: Law serves many purposes, not just justice, and these
purposes change over time.
3. Contradiction: Salmond limits jurisprudence to the study of civil law within national
systems, which contradicts his claim that the purpose of law is justice, a universal
concept. Jurisprudence should not be confined to national boundaries.
Hans Kelsen’s Pure Theory of Law:
Kelsen, an Austrian philosopher, developed the Pure Theory of Law, focusing on the law as
a normative science, separate from morality, religion, and other fields. Unlike natural
sciences, which are based on cause and effect, law is about what should be, not what is.
Kelsen argued that law is a hierarchy of norms (rules or commands), where each norm
derives its validity from a higher norm, ultimately reaching a Grundnorm (basic norm). The
Grundnorm is the foundational norm that gives validity to all other norms in the legal system
and is not derived from any other norm, but is presumed valid.
For example, in India, laws derive validity from the Constitution, which itself derives authority
from the Grundnorm. Kelsen's theory maintains that legal validity flows from this ultimate,
unprovable norm that acts as the ultimate source of law's authority.

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Criticism of Kelsen’s Pure Theory:
1. Difficulty in Tracing the Grundnorm: Identifying the Grundnorm in every legal
system is challenging, and there's no clear measure to assess its effectiveness.
Kelsen’s idea of the Grundnorm being effective "by and large" lacks clarity and
precision.
2. Lack of Timeframe: Kelsen’s theory doesn’t specify how long the Grundnorm needs
to be effective for law to be valid, leaving its validity to be determined by what judges
accept at any given moment.
3. Impurity of the Theory: Kelsen’s theory becomes "impure" when trying to analyze the
Grundnorm, as it requires inputs from fields like sociology, history, and morality.
4. Issues with International Law: Kelsen’s monist view on international law’s primacy
over municipal law contradicts actual practice, where countries often prioritize national
laws over international ones.
Jeremy Bentham’s Analytical Jurisprudence:
Bentham defined law as a command by a sovereign, which dictates the behavior of individuals
under its authority. He viewed law as imperative and focused on its function to promote
happiness. According to Bentham, the purpose of law is to maximize happiness, as individual
happiness contributes to the collective good. Laws should aim not at satisfying individual
selfish desires but at securing the common good for the entire community.
Bentham’s Eight Aspects of Law:
1. Source: The law originates from the will of the sovereign, who may create, adopt, or
authorize laws issued by others.
2. Subjects: The persons or things involved, either as active or passive agents in a legal
act.
3. Objects: The goals or purposes that a law aims to achieve.
4. Extent: Direct extent refers to the geographic area covered by a law, while indirect
extent deals with the relationship between an actor and a thing.
5. Aspects: Laws have both a directive part (sovereign's will) and a sanctional part
(force or consequence).
6. Force: The motivation or compulsion to obey the law.
7. Remedial Appendage: Laws that address how judges should correct or prevent harm.
8. Expression: A law ultimately reflects the sovereign’s will.
Bentham’s Theory of Law: Bentham defined a "complete" law as one that is integral
(expressed fully and coordinated well) and unified (focused on a specific type of action).

Criticisms of Bentham’s Theory:

1. Limited Scope: Bentham’s theory doesn't account for laws that confer power (e.g.,
making contracts or creating titles).

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2. Dismissal of Custom: Bentham undervalued custom as a source of law, claiming it
could never be "complete."
3. Judge-Made Law: Bentham opposed judge-made laws, believing they should be
replaced by "complete laws."
4. Subjective Criteria: Bentham’s reliance on pleasure-pain as a judgment criterion is
subjective and lacks clarity on how to make it objective.
5. Social Happiness Issue: Bentham's theory overlooks situations where increasing
happiness for one group could reduce the happiness of another, not necessarily
increasing overall societal happiness.

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