JURIPRUDENCE

(Subject Code - LC 0802)

LL.B. – II (Sem. – IV), B.A.LL.B. – IV (Sem. – VIII) and

B. B.A.LL.B. – IV (Sem. – VIII) Pattern – 2017

By
Dr. More Atul Lalasaheb
(Asso. Prof.)
B.Sc. (Hons.), LL.M., Ph.D. (Law), NET (Law)

Associate Professor Ph. D. Guide, Dept. of Law,

New Law College, Member, BoS, Faculty of Law,
Ahmednagar Savitribai Phule Pune University,
Pune
 JURISPRUDENCE
(Subject Code - LC 0802)

STUDY MATERIAL
FOR
LL.B. – II (Sem. – IV), B.A.LL.B. – IV (Sem. – VIII) and
B. B.A.LL.B. – IV (Sem. – VIII) Pattern – 2017

By
Dr. More Atul Lalasaheb
(Asso. Prof.)
B.Sc. (Hons.), LL.M., Ph.D. (Law), NET (Law)

Associate Professor Ph. D. Guide, Dept. of Law,

New Law College, Member, BoS, Faculty of Law,
Ahmednagar Savitribai Phule Pune University,
Pune

ADEMIC YEAR
2019-20
 ACKNOWLEDGEMENTS

At the outset, I acknowledge my indebtness for kind help and blessings extended
to me by Prof. Dr. Dilip Ukey, Vice Chancellor, MNLU, Mumbai and Prof. Dr.
Durgambini Patel, former HoD, Dept. of Law Savitribai Phule Pune University, who
taught me in my LL.M study and guided me during my Ph. D. research. I would like to
particular mention about their contribution in understanding and analyzing basic concepts
during my study of Constitutional Law, Administrative Law, Jurisprudence and Research
Methodology, which promoted me to undertake research, study and write on law
subjects.
I should also thank my colleagues of BoS (Faculty of Law), Savitribai Phule Pune
University, Pune who help and encouraged me in this regards.
I should thank and deeply appreciate to all respected office bearers of our Sanstha
namely Ahmednagar Jilha Marath Vidya Prasarak Samaj, Ahmednagar. I would like to
special mention about its President, Shri. Nandakumar Zaware-Patil, Vice President, Shri.
Ramchandra Dare, Secretary, Shri. G. D. Khandeshe, Joint Secretary, Adv. Vishwasrao
Athare Patil, Treasurer, Dr. Vivek Bhapkar and Trusty Adv. Deeplaxmi Mhase Patil for
their esteemed help, support, co-operation and encouragement to undertake this activity.
Prof. M. M. Tambe, I/C Principal, all my Teaching and Non-Teaching colleagues,
Librarian Dr. P. G. Dhirade and students of New Law College, Ahmednagar who have
initiated me to prepare this study material.
I should mention without fail my indebtness to the authors for their works which
might be escaped unintentionally. Besides this, I wish to thank those persons with whom
is being acknowledged in this study material and also to those their acknowledgements I
consulted for organizing this study material.
It is true this acknowledgement shall be incomplete without my expression of
gratitude to my wife Adv. Aruna and other family members for sparing me to complete
this study material.
Place: Ahmednagar
Date: 26th March 2020 Dr. More Atul Lalasaheb
(Asso. Prof. (Law))
Preface
The course of Jurisprudence Paper (Subject Code - LC 0802) of LL.B. – II (Sem.
– IV), B.A.LL.B. – IV (Sem. – VIII) and B. B.A.LL.B. – IV (Sem. – VIII) Pattern – 2017
is designed on the basis of recommendations of Bar Council of India and UGC, New
Delhi. I am glad to reveal that the syllabus of this paper which is framed by Committee of
BoS (Faculty of Law), SPPU, Pune, I was a member of that Committee. The syllabus is
aims at developing an analytical approach to understand the nature of law and the
development of legal system. Jurisprudence seeks to answer fundamental questions about
law. The concerns of jurisprudence are an inescapable feature of the law and legal
system. Jurisprudence has generous frontiers. It accommodates copious subjects of
intellectual enquiry. This course identifies and elucidates several of the major
preoccupations of legal theory. This course also create an understanding of basic legal
concepts like Rights, Person, Property, Title, Possession, Ownership, Liability,
Obligation which are basic to the study of Law.
As it is said that the Jurisprudence it the science and philosophy of law so, it will
be advantageous to study the content of this paper in the Social, Economic and Political
context in which the philosophy of law plays whittle role. I would like to particularly
mention about various provisions under the constitution viz., Socialism, Secularism,
Unity and Integrity of the Nation, Affirmative Actions in the favour of SCs, STs, OBCs,
Minorities and Women, Extension of Right to Know, Dynamic application of Right to
Life and Personal Liberty, effective implementation of Directive Principles of State
Policy and Fundamental Duties etc, follows the jurisprudential aspects of law. The Apex
Court also being observing jurisprudential aspects while laying down important rulings.
Hence, under this study material I have discussed most of the relevant and important
components which are need to be studied in the respective Modules of the syllabus of this
paper.
I would like to suggest to all law students, researcher and readers of this subject
that in order to avoid lengthiness of study material I have mentioned only those relevant
aspects which needs to be studied in each module, so you should read in detail those
aspects from the reference material which I acknowledged at the end leaf of this study
material. Really I appreciate the great work done by those authors in this subject.
 I hope this study material will be useful to you, I will be happy to accept any
relevant suggestions to improve the contents of this study material.

Dr. More Atul Lalasaheb

(Asso. Prof. (Law))
 INDEX

MODULE PARTICULARS PAGE

NO. NO.
Module 01 Introduction to Jurisprudence :
1. Jurisprudence – Meaning, Nature, and Utility
I 2. Meaning, Characteristics, Purposes and Classification of 1-6
Law
3. Relationship between Law and Morality
Module 02 Sources of Law :
1. Legislation – Meaning, nature, kinds, merits and
demerits, relation with other sources
2. Precedent - Meaning, nature, theories of Precedent,
Doctrine of Stare Decisis, article 141 of the Constitution
of India, kinds, ratio decidendi and obiter dicta, doctrine
II of prospective overruling, significance and 7-18
circumstances destroying binding force, relation with
other sources
3. Custom - Meaning, nature, essential conditions, kinds,
concept of Volkgeist
4. Juristic Writings - Meaning, nature and significance

Module 03 Natural Law Theories :

1. Classical Natural Law theory: Plato and Aristotle, St.
Augustine, St. Thomas Acquinas
2. Natural law and Social Contract Theory : Hugo Grotius
III and International Law, Hobbes, Locke, Rousseau 19-31
3. Revival of Natural Law : Lon Fuller and the Morality of
Law, H.L.A. Hart on Natural Law, John Finnis and the
Restatement of Natural Law
Module 04 Legal Positivism :
1. Bentham and John Austin's theory of positivism
IV 2. Hart's concept of law 32-37
Kelsen's Theory of law
Module 05 Sociological, Realist and Historical Schools of
Law :
1. Sociological school of law - Roscoe Pound
2. Realist school of law -
a) American Realism: W Holmes, Karl Llewellyn,
V Jerome Frank 38-44
b) Scandinavian Realism: Axel Hagerstrom, Alf
Ross, Karl Olivercrona
3. Historical school of jurisprudence - Savigny and Maine.
- Comparison of Historical and Analytical School of
Law
 Module 06 Critical Legal Studies :
1. Critical Feminist Jurisprudence -
a) Feminist Legal Theory
b) Origins of Feminism
c) Legal Feminisms - Liberal Feminism, Radical
VI Feminism, Postmodern Feminism 45-54
2. Critical Race Theory -
a) Critical Race Theory’s critique of Liberalism
b) Critical Race Theory’s racial critique of Civil
Rights Scholarship
3. Critical Race Theory as Reconstruction Jurisprudence
Module 07 Rights and Duties :
1. Meaning of Wrong, Duty and Right
2. Characteristics of Legal Rights
VII 3. Kinds of Legal Rights 55-61
4. Theories of Legal Rights
5. Hohfeldian Classification of Legal Rights
Module 08 Concept of Property and Obligations :
1. Meaning of Property
2. Kinds of Properties
3. Theories of Property
VIII 4. Modes of acquisition Property 62-67
5. Definition of Obligation
6. Solitary Obligations
7. Sources of Obligations
Module 09 Concepts of Ownership and Possession :
1. Meaning of Ownership
2. Characteristic of Ownership
3. Subject-matter of Ownership
4. Kinds of Ownership
IX 5. Modes of acquiring Ownership 68-71
6. Meaning of Possession
7. Kinds of Possession
8. Modes of acquiring Possession
9. Possessory Remedies
10. Comparison between Ownership and Possession
Module 10 Concept of Person :
1. Nature of Personality - Natural and Legal
2. Legal Status of Lower Animals, Dead persons, Unborn
X Persons 72-76
3. Kinds of Legal Persons
4. Uses and Purposes of Incorporation
5. Theories of Legal Personality
 Module 11 Concept of Title :
1. Definition and Nature of Title
2. Classification of Titles
XI 77-77
3. Importance of Agreements
4. Kinds of Agreements
5. Validity of Agreements

Module 12 Concept of Liability :

1. Definition and Nature of Liability
2. Kinds of Liability
3. General Conditions of Liability
XII 4. Measure of Penal Liability 78-80
5. Measure of Civil Liability
6. Theory of Strict and Absolute Liability
7. Vicarious Liability in Civil and Criminal Law
8. Liability of Corporations

BIBILIOGRAPHY OF REFERENCE MATERIAL 81

 MODULE - 01
INTRODUCTION TO JURISPRUDENCE

Nature and scope of jurisprudence practical

problem.
Salmond Method of The method of Ordinarily
Jurisprudence deals with those relations of Study inquiry apt for in case of
the man society, which are regulated by law. jurisprudence legal subject
will not we look for
Jurisprudence is the name given to a necessarily be the rule
certain types of investigation in to law, an one used in relevant to a
investigation of an abstract general and study of given
theoretical nature, which seeks to lay bare the ordinary legal situation
essential principles of law and legal system. subject we e.g. -
Jurisprudence broadly speaking is look for the Contract
normative evaluation of basic legal values and rule relevant to binding
ideals, which impart validity and recognition to a a given ness.
legal system. It is a conceptual analysis of situation e.g.
theory of law correlated to socio-political goals Crime.
of a society. Which provide explanation, This in
justification and meaning to the totality of legal jurisprudence
system. we ask what it
In general sense jurisprudence include is for a rule to
the whole body of legal doctrine. be a legal to be
a legal rule,
When we breakdown the word what
jurisprudence into its Latin components, we find distinguishes
that it is made up of two Latin words Juris law from
means legal and Prudential means knowledge. morality,
Therefore jurisprudence means legal knowledge. etiquette and
other related
*Difference between jurisprudence and legal phenomena.
subject –
Thus jurisprudence comprises
Point of Jurisprudence Legal philosophy of law therefore it consists of the
Difference Subjects analysis of legal concept e.g. Right (Tort /
Source/Origin Jurisprudence Legal Contract).
does not subject (e.g.
constitute a set Contract *Difference between Jurisprudence and Legal
of rules, is not and Tort Theory
derived from etc) consists Point of Jurisprudence Legal
authority and is of a set of Difference Theory
without rules and Nature But on the Legal theory
practical principals, hand is the study
application derived jurisprudence of law as it
from consider exists and
authoritative sociological, function in
source and psychological society, the
applied to aspects related way in
factual to law. The which it is
situation in law is studied created and
order to in the enforced,
solve background of influence of

1
 social social (4) With the help of jurisprudence the
deviation opinion on comparative studies between various legal
changing law and Law systems can be carried out.
economic and on social Duty – Democratic country &
political opinion, the Duty –communist
attitudes effectiveness (5) By jurisprudence the context of text of law
indeed in the of law and is provided e.g. political, social, economical
way of life of the part etc.
the society in played by (6) In absence precedence jurisprudence help to
which it sanctions decide case.
operates. etc. (7) It makes the complexities of law more mage
and rational i.e. improve applicability of
*Definition of Jurisprudence law.
(8) It infuses ethics morality and philosophy in
Dr. M. J. Sethana order to come out materialistic layering.
Jurisprudence is a general theory discussion
about law and its principles as opposed to the *Scope of Jurisprudence
study of actual rules of law. It is the study of Initially the scope of jurisprudence was
fundamental legal principles, including limited to the study of the concept of positive
philosophical Historical and sociological law and ethics and theology fall outside the
bases and an analysis is of legal concepts. province of jurisprudence.
But present modern view is that the
C. K. Allen scope of jurisprudence cannot be limited to
Jurisprudence is the scientific synthesis of positive law. It includes all concepts of human
laws essential principle. order and human conduct in state and society
anything that concerns order in the state and
J. Hall society falls under the domain of jurisprudence.
Jurisprudence includes the scratch for ultimate
conception in terms of which legal knowledge P.B. Mukherji
can be significantly expressed. New jurisprudence is intellectual and
idealistic abstraction as well as
Ulpian behavouristic study of man in society. It
The knowledge of things divine and human the includes political, social, Economical and
knowledge of the just and unjust. Cultural ideas. It covers the study of man in
relations to state and society.
Karl Dewellyn
Any careful and sustained thinking about any Dr. Sethana
phase of things legal, if the thinking seek to Every legal subject should be fully consider
reach beyond the practical solution in hands. from all angles i.e. historically,
philosophically analytically, comparatively
Roscoe Pound and sociologically e.g. property means
A consideration of the ethical and social merits concept of property, property right, personal
of legal rules. rights, legal and equitable rights (synthetic
jurisprudence).

*Whether Jurisprudence is a science? *Definition of Law

As we know that Prof. Holland
*Values of jurisprudence It is formal science of positive law.
(1) Without theoretical base of jurisprudence Criticism – science is controlled
there cannot be practical application of the particular knowledge and having
law. universal application. But it is not so in
(2) It concern with what law ought to be and not case of law.
what law is.
(3) The logical analysis of legal concept sharpens Roscoe Pound
the lawyers’ ability to think logically. Law is -
I. Legal precepts (customs, usages),

2
 II. Legal order (Law enacted by sovereign means Balance monopolies and
authority), restrictive trade practice.
III. Judicial process (Doctrine of precedent)
& b) Corrective Justice
IV. Principles (Principles of natural justice) It means Correct the violation of
distributive justice in the form of
penalty or punishment.
*Nature and Theories of law
We have to differentiate law of motion,
gravitiation optics mechanics from the law of II. Stability & Uniformity - It means certainty,
nature and nation stability is sanction v Internationalization of law.
The term law used in legal field to
express the abstract idea of the rules which III. Flexibility - It must be capable of being
regulate human action in the society therefore the changed modified or altered so as to adopt social
purpose legal theories is to express science of changes means peaceful change i.e. stability with
human action and the Holland state legal theories flexibility otherwise revolution.
help to determine a general rule of action taking
in to consideration only of external acts enforce IV. Greatest Happiness of the greatest
by a deter mine authority which authority is number.
human and among human authority is that which
is paramount in a political society. V. To win acceptance or tolerance of the vast
majority i.e. Enforcement.
Various schools of law have defined
term law from different angles, like Its nature, its VI. Compromise means rulers and ruled
source, its effect on society, end or purpose of (fundamental rights) i.e. liberty
law. Therefore it is very difficult to give exact
definition of law. VII. Protection of Interest

*Functions and purpose of law *Defect of Law

Law is variable in nature as per time 1. Rigidity
and social values. 2. Conservatism
The law has following important 3. Formalism means importance to technique
functions, which are recognized by every Legal requirement than to sustentative rights and
System in the world. wrongs.
4. Needless and undue complexity
I. Justice – It is important function of law to
establish Justice. It is a mean to an end and not *Jurisprudence and Sociology
an end in itself. It means influence of law on society i.e.
The justice has two meaning social welfare means causes of crime.
1) Wider sense – It is equate with morality
i.e. Natural Law propositions. St. Thomas *Jurisprudence and psychology
Aquinas state unjust is not law. Psychology means science of mind and
2) Narrower sense – It means equality or behavior e.g. guilty mind means helps to execute
impartiality law.
a) Distributive Justice
It means fair division of social benefits *Jurisprudence and Economy
and burdens among the member of Which satisfying wants and producing
community. It is achieved through and distributing wealth e.g. economic factor
Legislation. It helps to prevent class responsible for crimes, betterment of life e.g.
conflict, procuring welfare of all classes Industrial dispute Act, workmen’s compensation
i.e. summon bonum (greatest good) Act.
therefore it has linkage with social
engineering of law. *Jurisprudence and History
E.g. 1) Reservation means Balance It provides background in which the
competing interest, 2) Right to Business correct idea of jurisprudence can be realized

3
*Jurisprudence and politics morally wrong. This example is slightly different
Friedman said that jurisprudence is the to the previous one however, as there has now
connecting link between philosophy and political been laws set down to try and prevent people
theory. Philosophy gives purpose or object of from drink driving. This is therefore an example
law while political theory gives principles of the influence of societies moral views on the
governing governmental organization and let creation of law.
down authoritative law. A central debate is whether law should
attempt to shape morality of whether it should
The Relationship between law and morality stay on the sidelines. The Hart v Devlin
The relationship between law and (1957) debate was trying to answer this very
morality is not an easy one. Moral rules and legal question. Devlin believed that the law should
rules have some similarities: like all rules, reflect morality and said society has the right to
according to Hart, they share a general (though punish any act that offends against its shared
not necessarily universal) habit of obedience morality, but that it should exercise this right
within the society to which they apply, and only sparingly. In particular, individual privacy
a “critical reflexive attitude” (a sense should be respected wherever possible. He
of “oughtness”). Moral rules and legal rules are recognised that some immoral acts might be
certainly not the same: there are some legal rules tolerated. Hart on the other hand, thought that
that are not moral rules and vice versa. In some there is little or no shared morality in the modern
cases the moral view and the legal view overlap, pluralist society beyond his “minimum content”
this will be discussed later. for the protection of persons and property and
There are several differences between there is no freedom if we can do only these acts
law and morality. Firstly, in general, the law that others approve of. Hart doubted whether
applies to everyone in society whereas morals suffering by punishment added to the wrong of
are more of a personal opinion and can apply to immorality could ever make a right.
individual groups of people. For example, the The key views of the link between law
practice of Christianity and other denominations and morals are illustrated in the liberal view, the
holds many moral views and lessons such liberal influence on law, the conservative view,
as ‘thou shall not commit adultery’ but this is not the conservative view on law and Natural law.
a law and does not bind society as a whole. The liberal position essentially involves the
The law is laid down in statute and protection of minority views. The liberals would
enforced by the judiciary and police whereas say that the protection of minority views leads to
moral rules are difficult to find an absolute and the overall benefit of all. The liberal view is
are enforced through social pressure and more possibly associated with the left of the
supported by an appeal to respect them. political spectrum represented by the Labour
Another comparison between law and Party and the Liberal Democrats. The political
morality is that moral rules are not subject to and moral movements in society are often
deliberate creation or change. Moral views in reflected in legal change. A good example of this
religious groups have been created over can be seen in legislation that prohibited and
thousands of years and overall they remain the controlled private sexual behaviour.
same to this day. Moral views held by the The Wolfenden Committee on
majority of society however, change gradually Homosexual Offences and Prostitution explored
over time; an example of this is drink driving. and made recommendations on important areas
This makes it incredibly difficult to resolve of adult life. The Committee argued that the law
disagreements to moral views. In contrast, legal should not interfere with private behaviour
rules can be changed by enactment and even the unless it corrupted or injured others. This “harm
date of the change can be fixed to a certain date. no others” principle has several problems. It did
Disagreements as to the content of legal rules not say what harm is, it did not say who ‘others’
can be resolved by references to the statutes. were and should you use law to prevent ‘harm’
Over the past thirty years there has been in all cases? For example, adultery and suicide:
a considered development over societies view on both would cause ‘harm’ to others, however the
drink driving. In the past it was considered to be law will say nothing about the behaviour. Also,
acceptable for someone to spend an evening in a the subjective language of the report meant that
pub, consuming alcohol and then driving home. those who had their own moral and legal agenda
These days, society frowns on those who drive easily manipulated its findings. The laws on
under the influence of alcohol and consider it prostitution are still very restrictive and often

4
heavily penalise the prostitute and are light on and the moral rule against stealing coincides with
the client. In terms of homosexual rights, it is the legal prohibition of theft, another very
only in the past few years that the law began to ancient crime even though now codified.
reflect equality between homosexual and Nearly all western countries prohibit the
heterosexual citizens. practice of euthanasia, thereby giving effect to
The conservative view on the the supposed moral rule that deliberately killing
Wolfenden Committee was Lord Devlin. He another human being is wrong even when that
believed that the law should have a direct input other has consented to or asked for the killing.
into the moral life of its citizens. The Some of these countries (excluding the United
conservative influence on law was seen in some Kingdom) have no qualms about killing
of the legislation during Margaret Thatcher’s criminals who have not consented to the killing,
leadership in the eighties. The most important but the moral exception justifying capital
yet controversial influence was known as Clause punishment is not easy to identify and is open to
28 and prohibited the promotion of homosexual debate.
lifestyles as normal family life. An example of a case illustrating laws
For many religious groups, moral rules on debatable moral issues is that of Pretty v DPP
are to be found in the scriptures and traditions of (2002). This fairly recent case is an example of a
their religion and the teachings of respected case on euthanasia and the views both morally
figures in the past. The Catholic Church and and legally. Mrs. Pretty had contracted motor
non-religious people tend to look to the so- neurone disease and was confined to a wheel
called “natural law” as a guide. For example, chair. She required no direct medical
Catholics look at the natural consequences of intervention to keep her alive but did receive
sexual intercourse is conception: if this is what is pain-killing drugs to ease the considerable
in nature, this is what should be, and anything discomfort she found herself in. She had great
that interferes with this natural process is difficulty in talking, eating and sleeping. She
contrary to morality. was concerned that her husband would be
Realists see moral assertions as inherently true or convicted of a serious offence if he helped her to
inherently false. There may be uncertainty and end her life and therefore sought permission of
argument about their truth but they have an the court for euthanasia. The courts in the United
eternal truth or falsity independent of changes in Kingdom reluctantly refused her request, as did
society. the European Court of Human Rights. The
Relativists argue that moral truths may Netherlands, in 2001, enacted a law making
change from time to time and from place to euthanasia lawful in certain circumstances. For
place. Three hundred years ago it was morally this to apply, the patient must be suffering
acceptable for a husband to beat his wife if she continuous, unbearable and incurable pain, must
misbehaved. In fact, he would have been failing be of sound mind and must voluntarily and
his duty if he did not. Such a thing would be persistently have been asked to be killed. In the
clearly immoral today. case of R v Pretty she may well have qualified
Whether we are relativists or realists we for euthanasia had she been in the Netherlands.
must decide what the moral rules are, morality Some moral rules have been given effect by
itself may or may not change but the public statute. The moral censure of those who deal in
understanding of morality certainly does. We pornography is given legal effect by the Obscene
take it for granted now that all human beings are Publications Act 1959. This makes it illegal to
entitled to the same human rights, but only two possess any obscene material with a view to its
hundred years ago the prevailing morality of sale or other publication. An example of this put
Western Europe and America was that black into action is in the case of Shaw v DPP
people were less than human. (1961). In this case the defendant had published
Unless we accept the inherent existence a booklet of the names, addresses, photographs
of moral views, it makes no sense to criticise as and other details of prostitutes and was charged
immoral anything that anyone else does. with conspiracy to corrupt public morals. The
There are some long-established rules House of Lords later upheld his conviction.
that are legal rules as well as moral ones and Also, the widespread condemnation of incest
were probably adopted as part of common law as (seen by many people as morally wrong even
much for moral as for practical reasons. For when both parties are adult and consenting) led
example, “thou shalt not kill” finds its legal to it being criminalised by the Punishment of
expression in the common law offence of murder Incest Act 1908.

5
 Another example of moral rules being Therefore, although the law is
given effect by statute is the moral views on continuously seeking to uphold and promote
racism. The moral rule of discrimination based moral values it remains a continuous battle to
on a person’s colour is seen as being morally find a balance between the legal applications and
wrong. The Race Relations Act 1966 brought in moral views in such a diverse pluralist society.
the creation of new offences of inciting racial
hatred and a new tort of unlawful racial
discrimination and setting up of a Race Relations
Board to combat unfair practices.
In conclusion, law and morality have an
interesting general relationship in the sense that
moral views over time have a significant
influence on the creation and enactment of
legislature. Law and morals do however have
distinctive differences. Where moral rules
change gradually over time, legal rules can
change almost instantly by the enactment of new
laws. Some types of rules require that we do
something, others that we do not. Criminal laws
are predominantly the ‘do not’ type. Negative
rules in that they prohibit certain activities
because they offend dominant values within a
group, or because they are simply an affront to
basic social existence. How dominant must a
value be before it is wrong to go against it? With
so many conflicting moralities in our
multicultural society, which of them when
transgressed leads to sanctions? Rape is seen as
morally wrong and is a crime, however adultery
is morally wrong, and in the eyes of certain
religious groups is a worse transgression, but it is
not a crime.
Society’s attitudes to specific areas of
crime demonstrate that we have a collective
morality, more diverging than converging to any
conclusion. If there is a close alliance between
crime and moral sentiment, and if we
acknowledge that the association is a healthy
one, it seems clear-cut in acts that are a menace
to the system we support and the rules we are set
to serve. The morality or immorality of acts such
as murder, rape and theft did not change over
night, but their legal nature did. The test of a
crime against immorality is an ongoing one.
Many summary offences are crimes but the
question of are they immoral is not so straight
forward. When adultery is compared to having a
faulty break light on a car or the license disk is
on the wrong side of a car windscreen the test of
morality becomes less helpful. Although it is
seen that adultery is the worst act in this case,
only the car driver would actually be committing
an illegal offence.

6
 MODULE - 02
SOURCES OF LAW
Different writers have used the term future & without reference to any actual
sources of law in different senses & different dispute – written statute law & rules.
views have been expressed from time to time. Therefore judge made law is not
Some time it is used in the sense of the sovereign legislation in this sense.
or state from which law derives its force or
validity. Some it is used to denote the causes of (III) Widest sense.
law or matter of which law is composed. Some Every act of parliament is an instance of
time it is used to point out the regime or the Legislation irrespective of its purpose &
beginning, which gave rise to the stream of law. effect all function of parliament will
amount to Legislation including
C. K. Allen function that are not law producing e.g.
They are the agencies through which the rules declaration of war, ratifying treaties,
of conduct acquire the characteristics of law annexing territory, changing coinage
by becoming definite, uniform & etc.
compulsory.
*Meaning
Vinogradoff This derived from two Latin words.
Legis – Law, & Latum – to make, put or set.
It is the process by which the rule of law may Thus legislation means the making or
be evolved. the setting of law.
Oppenheim Salmond
It is the name for a historical fact out of Declaration of Legal rules by competent
which the rules of conduct come into authority.
existence & acquire legal force.
*Kinds of Legislation
Prof. Fuller I) Supreme Legislation
‘Source’ in the literature (Anatomy of Law) It is enacted by sovereign power of the state. It is
of jurisprudence relates to the question where enacted by the highest law making authority
does the judge obtain the rules by which to in a state. E.g. parliament of India possesses
decide cases? In this sense, among the the power of supreme legislation.
sources of law will commonly be listed
statutes, judicial precedent, custom, the II) Sub – ordinate Legislation or Delegated
opinion of experts’ morality & Equity. Legislation
Which proceeds from any authority other than
I. LEGISLATION the sovereign power. It is dependent for its
continued existence & validity on superior
The concept of Legislation, which is authority such legislation is sub-ordinate in
one of the most important Legal sources of Law, that it can be pealed by & must give way to
can be viewed from 3 diverse perspectives. sovereign legislation.
(I) Broader sense In any democratic state all forms of legislative
Legislation, which consists in the activity recognized by law, other than the
declaration of Legal rules by a competent power of parliament are subordinate &
authority therefore any act done with the subject to parliamentary control.
effect of adding to or altering the law, is an
act of Legislative authority. *Kinds or Types of subordinate Legislation.
Make law in new fashion e.g. Judge i) Executive
made law To conduct the administrative department of
the state they have to enacted their own rules
(II) Narrow sense or regulation which constitute subordinate
Laying down of Legal rules by a Legislation i.e. Delegated Legislation.
sovereign subordinate legislature for the

7
 E.g. Rules in the Jail Manual, While statute law is a gold coin of the realm
customs or Excise department etc. ready for immediate use.

ii) Judicial 4) Benefits to lawyers or profession

Superior courts have the power of making The codified legislation makes it easy to
rules for the regulation of their own extract the principle of law not only to
procedure e.g. supreme court & High profession but also to lawyers.
Court.
5) Certainty
iii) Colonial Case law or precedent produces gaps &
The powers of self government (Home uncertainties, while legislation makes the law
rule) entrusted to the colonies & other certain.
dependencies of crown are subject to the
control of imperial legislation. E.g. Lord McCauley 1833
Australia. The importance of codification is that it helps
the Magistrate to know what the law is?
iv) Municipal
Local bodies are entrusted with limited & 6) Collective or socialist measures can be
subordinate powers of establishing by undertaken
special law for the district under their Legislation allows the government to
control Law – Byelaws. undertake collective welfare schemes through
E.g. Municipal Corporation, Zillah welfare laws.
Parishad or Borough councils (Panchayat E.g. 1) provisions for free medical services,
Samity) etc. 2) Unemployment allowance, 3) Minimum
wages, 4) Reservation policies etc.
v) Autonomous
Quasi or semi-government bodies having 7) Democratization of Law
autonomy to formulate, their duties e.g. The pro-legislation proponents argue that it is
University, Railway, transport the people who elect the parliament, which in
corporations, BCCI etc. turn makes the law therefore indirectly it, is
the person who makes the law. What you
* Merits of Legislation over other sources of yourself make, you tend to obey.
Law.
They are as follows
1) Abrogative powers or Amending power
As society changes law has to change & it 8) Easy to Amend
can be done by amending, abrogating making If the system of parliament is working
new laws. Thus it has immediate result to the efficiently amendment of past legislation
social changes. becomes easy.

2) Accessibility 9) Formulated in advance

Statute law is easily accessible & therefore Parliament enacted legislation & codes are
everyone may consult the law affecting not expost facto i.e. a code legislates in
themselves. It helps to follow laws as per its advance for the future, which in turn breeds a
provision. certainty of law. In case of precedent one has
to wait till a dispute arises. The judge made
3) Bulk is reduced law is always ex post facto; where as codified
Statute law is in general; brief while case law law is pre declared.
or precedent is buried from sight &
knowledge in the mass of records of bygone 10) General in application
litigation. Legislation lay down general rules &
therefore wider than precedent because
Salmond Judge made law is specific & deals with
Case law is gold in mine a few grains of the particular circumstances.
precious metal to the ton of useless matter.
11) Step forward

8
D.D. Field: codification 16) Logical arrangement
The codified law is good or better compared Codified laws can be arranged in a simple,
to judge made law & constitutes a step coherent & logical manner. As they are
forward in the development of the legal indexed therefore there is in case of
systems. reference, which in turn saves time & is
simpler to understand.
12) Initiating change
Many time the government wishes to initiate CONCLUSION
change in society & it is not possible John Salmond
without legislation because drastic changes So great is the superiority of Legislation
do not take place in society very quickly as over all other methods of legal evolution
inherent nature of man is averse to change. that the modern tendency is to acknowledge
Therefore if order to bring quickly & legally its claim exclusively, and to disregard the
changes in society it has to be through new other instruments as relics of the infancy of
laws Legislated for that purpose. Law.
E.g. - Thus there is no doubt that a complete
I. Monopolies & Restrictive Trade code is better than a body of judicial Law.
Practices Act.
II. Secular nature of Law & Government. *Arguments against Legislation.
III. Nationalization of Banks, Airlines, 1) It is not possible to Legislate on every
Mines, Hotels etc. possible Legal situation. Unforeseen
IV. Unsociability Abolition. situation will always come-up, which have
V. Dowry Abolition etc. not been incorporated into the code or
Legislation.
13) No slavish obedience 2) Technical matters can’t be reduced to simple
Friedman language –Resulted into
Just because there is a code, it doesn’t mean I. Cumbersome,
that a judge hast to obey it like a slave. In II. Lengthy
fact, in most democracies a code can be III. Verbose,
declared ultra virus or unconstitutional by IV. Complicated &
the court. V. Difficult to understand.
3) Some Legislation takes years to be drafted,
14) Unification approved, accepted etc. Therefore not tune
Codes are also useful in unifying diverse in social changes. While precedent is
jurisdiction – consolidation which entails the current & up to date.
putting into one statute what was previously 4) Badly written codes can be misused by bad
to be found in several, also simplifies & elements of society while as precedent
reduces. The bulk of law e.g. Transfer of follows justice, equity & good conscience.
property Act 1882. Therefore give proper justice.
15) Separate body makes codes 5) An ambiguous code or legislation led to
The legislation enacted by parliament is uncertainty & until that ambiguity is
made by a separate body of persons & made clarified by court or legislature.
with deliberation & debate normally judge 6) Some time Amendment in code is difficult --
made law is made by one judge, due to It follows complex legislative procedure.
judicial hurry pressurizes judge & chance of 7) It is accepted truth that it is virtually
a mistake increases. But on the other hand impossible to draft a code without
parliament, enacted legislation are made by ambiguity, obscurity & conflicting the
more than one mind. sections of society.
8) Code written in a language alien to the
Dr. Sethana masses doesn’t serve the purpose e.g. Indian
The human mind is not infallible & the penal Code - initially not understand to
Judge is not exception. The wisdom of the Indian as it is in English not more than 1%
legislature can therefore be regarded as a 9) The legislatures will always a politically
more reliable means of protection than the volatile issue & allegations of bias
fancy of an individual judge. (ideological racist caste based) are heaped.

9
 E.g. some knives & foolish people contend Prof. Salmond
that the issue o Reservation for Supreme Judicial decision has the force of law &
Court or State tribunal have been legally ultimate and these ultimate principles
incorporated into our constitution merely are Grund Norm or Rule of Recognition of
because one of its draftsman was a member Legal System. E.g. Keshawanand Bharati’s
of a supreme court. case - Basic Structure
10) The desire for certainty in the application of
legislation leads to over elaboration, which Prof Loan fuller
in turn leads to red tape & instability. Adjudication is the social procedure of
decision, which assures the affected party a
Due to codification people go by the particular form of participation & presenting
letters of the law rather than by the spirit of the form of decision in his favors.The matter of
law. social interest & its decision binding on
whole society e.g. Maneca, Vishaka,
II. PRECEDENT AS A SOURCE OF LAW Keshavanand Bharati Cases.
The word precedent can be understood Thus such judicial decisions becomes
by two senses. guidelines of future cases & as compare to the
I. Broader Sense Dictatorial State, the precedent is more binding
It is a decision of a court cited as authority for in Democratic state and therefore respect is given
deciding similar facts on that principle or by to the decision of Judges as court is temple of
analogy i.e. any past decision of court justice & judges are priest in it.
irrespective of whether it is a decision of
higher, lower, Indian or foreign court. Values or Importance of Precedent
It has following 3 important values.
II. Narrow sense (I) To give justice to the party,
It is statement of law found in a judicial (II) To Admire the Legal System as per
decision of a superior court, which meant to Precedent &
be followed by the same court & also by (III) To develop law prospectively.
subordinate courts.
Thus whatever done or followed in past Objects of precedent
expectedly to be followed in future in order to It has following object
avoid discontinuity & achieve the stability in a) To give same decision on same line in future
law. So that it is one of the important sources of by referring past,
law amongst the other sources of law i.e. b) To constitute equality of justice in Legal
legislation & custom. system,
c) To achieve continuity & stability,
Origin of precedent d) Administration of Law in society as per the
It is found in American Realistic Theory of statutory provision &
Law e) To give efficiency in decision-making.
Law is not a law what is enacted or
framed by legislation or Executive but it is the Common Law features of Doctrine of
law, which is decided by the judges. Precedent
E.g. 1) S.R. Bommai case – U/A 356 otherwise – As Indian Legal system follow the
word, 2) Vishaka case - Direction to legislation, common law system therefore it is necessary to
3) Sarla Mudgal case – common or Uniform see the common law features of precedent.
Civil Code. a) Specific emphasis upon judicial decisions as
a core of legal system.
Prof H.L.A. Hart b) Very subordinate role accorded to the
Acknowledges the role of judges to shape the judicial writings than the judicial decisions.
legal system as a positivist. E.g. Maneca Case c) The treatment of judicial decision as a
- Rule of Law. binding on other Judges
d) The particular form or style of judicial
Judgment & mode of its reporting.

10
Whether precedent is Rule of Law or Rule of RATIO DECIDENDI
practice? It means ‘reason of past decision’. It is
followed in future cases as a precedent therefore
Rule of Law means lawyers & judges have to separate it from the
Absolute bindingness of precedent & no past decision to apply in future.
discretion to the judges.
Prof. Dias
Rule of Practice He gave meaning of Ratio Decidendi as
follows –
It is not absolute binding but there is (I) It is the reason not only deciding but
description of the judges. also finding facts.
(II) It is the rule of law offered by Justice as
Prof. Dwelling the basis of his decision. &
It is matter of rule of practice (III) It is the rule of law which others
regarded as binding authority.
Karl Llewellyn
It is followed for the sake of Equality
Theory of Ratio Decidendi
Criticism (1) Material fact theory
1) Cohn Prof Good Hart
There could be desirable distinction in Ratio Decidendi is the controlled
decision whenever necessary. material fact as viewed by Judges & reasoning
why those facts are material one.
2) J. Cardozo This theory observes Dais’s 1st meaning
It is followed for sake of efficiency (Rule of of Ratio Decidendi. This theory world widely
Law) accepted.
Criticism Krishna Kumar v. Union of India
Wassr Storm Supreme Court uphold this theory
Only efficiency not but end result is Limitation – Need to pay more attention to the
important. judges own formation of the rule of law than
Thus adherence to precedent is not but facts of the case.
adherence to justice is important
(2) Classical Theory
GENERAL RULES FOR APPLICATION OF Prof. Monnrose
PRECEDENT It is said to be a principle propounded
by the courts as necessary for or basis its
Prof. C. K. Allen: Law in making decision. This theory observes Dais’s 2nd
1) Each court is bound by the decision of court meaning of Ratio Decidendi.
above it,
2) Any relevant judgment of any court in a (3) The reversal test
strong argument entitled to respectful Prof. Wambaugh
consideration, We should take the proposition of law
3) Judgment is authoritative only as to its private forward by the Judge & reverse or negate
“Ratio Decidendi”, it and then see if the reversal has altered the
4) Precedent is not abrogated by laps of time, decision. If the reversal changes decision then
5) Very ancient or old precedent ought not to proposition is the ratio. If no makes difference
be sighted due to modern or changed upon decision then it is not ratio but it is obiter
circumstances. As law is living systems, it Decta.
changes with an organic system of society. Limitation
(i) where no proposition of law is given & it
*Rayland v. Fleature is a statement of facts & together with the
Now strict liability converted into absolute order that was made.
liability. (ii) Court gave several reason for its decision.
Precedent to be sighted from any
source, to, which court, consider as reliable. Which theory is superior ?
Shyam Rao v. Pondicherry

11
Justice Shelat – The bindingness of precedent (5) An original precedent actually create new
regarded to Ratio Decidendi & principle laid don principles of the law which help in
there in. development of legal system.
(6) It brings into legal system as element of
H.M. Seervai convenience i.e. once decided point of law
Whenever judgment considers to be must not be opened again & again .
binding on courts, it is not merely ratio decidendi (7) Helps to reduce quantum of disputes.
of judgment but judgment as a whole is binding. (8) Llewllyne – The precedent is based on
principle” like being treated alike” .
Great Western Rly Comp. v. Mostyn (9) It infuses sense of /justice.
Lord Dunedin – Whenever decision is treated as (10) Repose public confidence that judges
binding it is a whole judgment itself which is administration the law impersonally &
treated as binding that none of them make rules.

Patton – He also affirmed above view. Criticisms

But in India Prof. Good Harts view is followed - 1) Dwyer
Material fact theory i.e. decision is bind on the Rigidity – Precedent does not rule the law but
basis of Ex facto obiture jus i.e. Law eminent law rules the precedent. The doctrine of
from facts. Therefore in India, the discretion not precedent should not be rigid & not be applied at
allowed to Judges to decide material facts. the cost of justice.
The doctrine of the Binding force of
precedents i.e. stare Decisis. It suggests that 2) Lord Denning
precedent not only have great authority but also While treating a previous decision as
must be followed. normally binding to depart from it if it appeared
right to do so.
STARE DECISIS
It means let it stand as decided. It 3) C.K. Allen
suggests a statue quo & implies that a past Precedent must be servant not a
judgment is fixed & shouldn’t be moved altered. master.
Mire house v. Runnel 1833
Chief Justice Parker – for the sake of (1) 4) Paton
Uniformity (2) consistency & (3) certainty A truly practical method should allow
precedent must be followed in future in the form experiment, and there should be opportunity to
of stare Decisis. correct one’s mistake. Therefore, it is better for
The doctrine of stare Decisis implies the court to be ultimately right than to be
that certainty of law is, as a rule, preferable to persistently wrong. Certainty of law must not
and more valuable than its improvement. The become certainty of injustice. E.g. A.K .
doctrine of stare decisis has been recognized U/A Gopalan, & Maneka Gandhi case.
141 of Indian Constitution which provides that
the law declared by the Supreme Court shall be 5) Cardozo
binding on all courts in India. If a rule laid down by a decision is
found to be inconsistent with justice it must not
Merits of Stare Decisis be followed.
(1) It shows respect for the opinion of our
ancestor . 6) Roscoe Pound
(2) It infuses certainty in Law. * Minerva The changing rule or flexibility of
Mills case supreme court – certainty & precedent is very essential in cases of Higher
continuity are essential ingredients of the courts of Land than lower courts, because in case
rule of law. of mistake of lower in case of mistake of lower
(3) If Judges is free to decide case contrary to courts, it can be corrected by a higher court.
prior decision it would resulted into the
fate of litigants would hang on the whim, 7) Lord Denning
fancy & caprice of the Judge. The Discipline of – Not only the
(4) It allows common law & the statute law to certainty of law but also justness of law also
be restated & reshaped. important otherwise law will cease to grow & it
will become a structure of fossil therefore

12
flexibility in precedent is very much important /
necessary . Bacon, Bentham Austin, Dicey, Salmond,
Conway v. Rimmer 1968 Radiliffe, & Denning, A R. Holmes, Frank,
House of Lord – Not allow to take defence of Gray, Llewllyn, Sturges, Morris & Cohen are the
confidentiality to disclose the governmental propounders of this theory.
report as it was allowed in Duncan v. Camel,
Laird & Co. 1942 Dicey: Law & public opinion in England
A large & perhaps the most & pest part of the
Scorch Meier Gilt v. Henning 1975 law of England is judge made law. The majority
House of Lords – allow compensation in the of the England law is not created by an Act of
foreign currency (Dutch marks ) & overruled it parliament but by Judges.
earlier decision in re united Railway of Havana
& Regla warehouses Ltd .1960 ( Compensation Chief Justice P.N. Bhagwati
only in pound sterling ) Even where the court is concerned with
legislation, the Legislatures merely gives the dry
A.K. Gopalan 1951 skeleton of the law but to fill it with flesh &
Supreme court - Law as it is no question of it blood is the function of the judges & it is there
justness, fairness / reasonable ness that he takes part in the process of creation.
Therefore a judge is not a mimic but a creative
Maneka case 1976 artiste. E.g. Vishaka Case, Shahbanoo Case,
Supreme court – Overrule above decision & held Mandal Commission Case, Maneca Gandhi
law must be fair , Just & reasonable. Case, Kotrial Case2005

*Theories of Precedent Power of over ruling the precedent

I. The Declaratory Theory It is necessary to remove rigidity in
Judges do not make law but only declares the precedent, as it is detrimental to growth of the
law as found in statute or custom they don’t law.
lay new principle of law.
Coke, Hale, Blackstone, carter, Hammod, Esher I. Position in U.K.
& Scrutton expressed the views that judges House of Lords acts as legislature as
merely interpret the already existing law. well as Highest court therefore its decisions are
final & binding, the House of Lords was the
Black stone orthodox, it have no power to over rule its own
Judges 1) discover the law & 2) find the law decision.
but they do not make the law. *London Street Tram way v. London City
Council 1878
Mathew Hale: History of common law House of Lords acknowledged its rigidity.
The decisions of courts of justice do not make *Young v. Pristal Airplanes Comp. 1946
law properly for that only the king & The court of Appeal held that in following
parliament can do so. circumstances it would not be bound by rigidity
of stare decises.
C. K. Allen (1) It decision is inconsistent with the decision
Judge made law is misleading. Judges merely of House of Lords. Same view followed in
apply an existing general rule to a concrete India.
case. (2) The court of Appeal can choose one of the
*Criticism. decisions out of two conflicting decision of
As per American Realism-Judges not only that court itself. Not so in India, such matter
Administer & interpreter the law but also referred to Chief Justice of High court or
develop the law. Therefore Judges do make law. Supreme Court. He by establishing larger
bench settles the matter.
II. Constitutive theory *Wangechung Case
(Election case)J. Ramaswami gave above
This theory emerged to criticize the above view.
theory. It is true that generally Judges apply (3) The Constitutional Assembly wouldn’t
existing law, but very often they 1) Extend, 2) follow precedent if it were in conflict with
modify & 3) create an entirely new principle.

13
 latter Act of parliament. Same view The prosperity is rule of legislation
followed in India. E.g. Shahbanoo Case. exception is Retrospectivity & the
(4) Precedent not bound, if it was result of per Retrospectivity is rule of judiciary exception is
incurium decision i.e.decision not based on Prospectivity.
existing law. Same view followed in India.
Thus precedent binding from the date of
*Scruten v. Midland Silicon Comp. Case 1962
the cause of action & not from date of decision.
House of Lords held that it could permit itself to
But if, it is cause inconvenience to give
overruled past decision on basis of Yong’s case
Retrospectivity then past decision overruling &
if it is not convenient.
gave effect from date of decision onward & this
In 1966 Lord Chancellor held that
is nothing but the Prospective Overruling.
House of Lord not bound by follow own past
The prospective overruling is used to
decision & it got curatorial power therefore Lord
come out from –
of street tram way case seizes to exist.
(I) The inconvenience,
(II) Impossibility &
(III) Chaos of past act.
II. Position in India
* Bengal Immunity Comp. Case 1955 This principle 1st time laid down by U.S.A
Supreme court held that u/a. 141 Supreme Court Supreme Court.
doesn’t require following its own decision *Great Northern Railway v. Sun Burst
rigidly. J. Cardozo held that the Doctrine of Prospective
J. Das said that the judges exercise power of overruling is important because Retrospectivity
overrule is unavoidable with reference to an causes –
organic body like constitution. 1) Administrative inconvenience &
Thus power of overrule is more 2) Might disturbed vested rights.
necessary in constitutional matters because the Which could cause hardship to those
rigidity of precedent will affect the constitutional who have acted on the basis of old rule.
provisions & goals of it. It is only flexibility & Thus the prospectivity confirmed on the
not the elasticity as per time & circumstances law declared by the court.
e.g. Maneca overruled Gopalan.
In Indian context the American In India
correctable judicial trend is more suitable than
* Golaknath Case 1967
British. Therefore now Doctrine of precedent
Supreme Court (11 Judges Bench) held that
U/A 141 is coupled with power of overruled &
Parliament can’t Amends Fundamental Rights
also it binding on all courts in Indian Territory.
u/a. 368 & Sajjan Sing & Shankari Prasad cases
overruled & doctrine of Prospective overruling
*Tribhuvan Dav v. V. Ratilal
incorporated as follow. Further the Supreme
Supreme court held that the Doctrine of
Court laid down the following guidelines -
precedent u/a. 141 initiate rule of law (Business
1) The Doctrine of Prospective Overruling
of Practice) & form of the foundation of
used & applies only in constitutional
Administration of justice under our Legal system
matters.
as decision of Supreme Court has 3 D values. It
2) It could be used only by Supreme Court &
is much important.
not by any other court.
3) The precise version of the prospectivity is
*Sajjan Singh & Shankari Prasad Cases
to be the discretion of Supreme Court
Supreme Court held the doctrine of Ratio
itself.
Decidendi or Stare Decises may not strictly
Thus in India the Great Northern Railways
applied to the extend & no one can disprove the
principle is not applied as it is because in that
position of the said doctrine. It should not be
decision past decision ceases to operate after the
permitted to perpetuate the erroneous decision
date of the decision of present case, but in India
pronounced by this court to determinate of the
the past Amendment remain exist forever but
general welfare.
from present decision date the parliament has not
These cases interpret Art. 141 contains
power to amend fundamental right.
inbuilt mechanism of power of overruling.
In the following cases this doctrine
directly or indirectly followed
Prospective overruling
*Suman Gupta v. State of Jammu & Kashmir

14
Nomination of Students in Medical College. But some of the High Courts held the obiter
dictum of the Supreme Court is not binding on
*Indra Shawney sub-ordinate courts.
Reservation for 5 years. *Basanta Kumar v. The chief Electrical Engineer
1956
*Ashok Kumar Gupta (Calcutta High Court)
Art 16(2)
*Importance of obiter dictum
*Jaylalita Case 2001 (1) They are important in rationalizing the law
Public mandent could not be above constitutional &
mandet. (2) In suggesting solution to the problems not
The doctrine of prospective overruling yet decided by the courts.
not limited to matters arising out of constitution
but it could be used & invoked in ordinary Salmond
statute also the 1st rule of Golaknath case is Some time they have greater weightage than
overruled in the present case. Ratio Decidendi as they are given by eminent
judges.
*Kothari’s Case 2005
Free Medical Services.
Criticism
*Obiter Dicta
Judges often express legal opinion on Obiter dictum some time irrelevant to
issues they are not asked to decide. the case while giving importance to obiter
dictum there must some relation or nexus to the
Meaning issue in question.
An obiter is an expression of an opinion
on a point, which is not necessary for the *Test to determine obiter dictum
decision of a case. *Mohan Das v. Sattanathan 1954
1) What the Judge said unwontedly (Bombay High court)
2) Statements of law, which are not necessary Chagla Chief Justice said the question which was
for the decision, they give & go beyond the “ necessary for the determination “of the case
requirement of the particular case. would be the Ratio Decidendi & the opinion of
Thus Judge have the habit of illustrating the court on the question which was “not
their reasoning by reference to hypothetical necessary to decide the case” would be only
situations, passing remarks about such situation. obiter dictum.

*Kinds of precedent
In England (I) Authoritative
Principle laid down by the superior court is
An obiter dictum has no binding binding on all the inferior court e.g. Ratio
efficacy on a co-ordinate or subordinate court; it Decidendi.
however has the persuasive value. (II) Persuasive
Decision of same rank court may be
followed or it may not be followed e.g.
In India obiter dictum.
Some High Courts held the obiter
dictum of Supreme Court is authoritatively *How binding force is added to precedent
binding on all sub-ordinate courts. 1) Unanimity in Bench e.g. Keshvanand
*Mohandas v. Sattanathan 1954 Bharati’s Case majority decision.
Some high court held that obiter dictum of a 2) Eminence of judges e.g. Justice Hidaytullah
Judge of Supreme Court even in a dissenting – constitutional Law, Justice Shah –
judgment is entitled to high respect especially if company law, Justice Gajendragadkar –
there is no direct decision contrary to it. Hindu law etc.
*Ashok Leyland v. State of Madras 1957 3) Observance by the same court in future.
4) Conformity with statute.
5) Laps of time.

15
 Circumstances which destroy / weaken the such a decision is not precedent. In order to
binding force of precedent avoid this now the two steps followed. (1)
Refer matter to larger bench / (2) establish
(I) Abrogated decision / Abolished – Decision additional numbers bench.
which have been abrogated lose their (X) Erroneous Judgment. – A precedent based
authoritative bindingness. This can be upon (1) faulty reasoning ?(2) illogically
happen in the following ways. drawn analogies /(3) which is against other
(II) Enacting statute.- If the legislature enacts a better established principles is a weak
statute which is inconsistent with the precedent . e.g. Radhika’s case Nagpur
precedent loses its value e.g. Muslim women High Court.
protect (on Divorce) Act 1986 – Shabanoo’s (XI) Changed condition –
case nullify. Dias – Although a case has neither been
(III) Reversal – when decision of lower court reversed nor overruled it may ease to be law
reversed by the appellate court. owing to the changed condition & changed
(IV) Overruling – When a higher court declares Law.
in another case that the precedent was Chief Justice Willes – When the nature of
wrongly decided & so is not to be followed things change, the rule of law must change
e.g. Maneka _ Overruled A.K. Gopalan’s too.
case. (XII) Precedent based upon absolute & antiquated
(V) Affirmation / reversal on a different techniques.
ground.- A case decided on one ground is C. A. Allen.—Changes & development in
overruled by the higher court on another human knowledge, such as (1) science (2)
ground then it losses authoritativeness to medicine, (3) forensic techniques (4)
some extent therefore the precedent computerization etc may greatly affect the
becomes weak. application & importance of precedent.
(VI) Ignorance of statute.- Decision is not Law is product of its own period &
binding if it was rendered in ignorance of a environment and it can’t remain static therefore
statute. a rule having the force of statute. In on the basis of larger & superior current
such a case even a lower court may also knowledge a judge may disregard precedent
refuse such a precedent passed by a higher based on absolute techniques. E.g. Digital
court. signature etc.
(VII) Inconsistency with earlier decision. - It may
be by two ways. III. Custom
1) Supreme Court gives contrary decision
than earlier decision. E.g. Sajjan Singh It is also an important source of Law.
case supreme court – fundamental right Definition
can be amend 1) Salmond – It is the embodiment of those
2) High court gives contrary decision to principle which have commended
another high court. themselves to the national conscience as
(VIII) Precedent sub silentio / not fully argued. principles of justice & public Utility.
When a particular point involved in a 2) Holland – Observed course of conduct.
decision is not taken notice of & is not 3) Austin – rule of conduct which the governed
argued by counsel the court may decide in observe spontaneously & not in pursuance
favor of one party whereas if all points have of law settled by a political superior.
been argued properly then decision may 4) Judicial committee of privy council . – A
have been in favor of the other party. rule which in a particular family / in a
Salmond – It is nothing but per incurium particular district has from long usage
decision because the failure of counsel to obtained the force of law.
argue the point will generally mean that Thus the custom is nothing but those
relevant cases / statutes are not bought to the rules of human action, established by usage
attention of court. which are adopted by the court because they are
generally followed by the political society as a
(IX) Decision of courts equally divided – some whole /by some part of it.
times an appeal court may have two Judges
& they may be divided on the issue, in such The custom doesn’t derive its inherent validity
a case the appeal is normally dismissed & from the authoritative of court & the sanction of

16
court is declaratory rather than constitutive existence for long time so that the custom can
therefore only those customs which are easily derive the force of law.
approved by the court considered as law. (II) Continuity:
The customs may be present in the he custom must be in existence &
habits of the people, but it becomes legal custom recognized by the community without any
(law) only when it is declared by the court as a intervening break, for such duration as may be
custom. reasonably held as long.
In England – It must be exist from 1189 onward
Reasons far the custom as a source of law without interruption.
(I) Opinio Necessities. – Out come of essential (III) Certainty – A claim which is uncertain
nature / requirement of community e.g. & indefinite can’t be a custom. Therefore it
Adoption. must not be covague,(2) indefinite & (3)
(II) De-novo / Totally new.- As law always uncertain.
comes from the material existing facts in (IV)Consistency (In Line) – It must be
society & therefore basis provided by consistent with other customs in the same
custom to law. area. If there is conflict regarding
(III) Philosophical Aspect – Right & good consistency of custom when alleging party
followed in past is good today & will be has to prove which custom is correct.
good in future. (V) Open & Peaceful enjoyment. – Without
(IV) Psychological aspect – As based on fighting & controversy, there should not be
immemorial antiquity easily accepted by secret custom it as never legal status.
society. The Indian constitution U/A 13 (VI) Conformity with enacted law – A local
gave the weightage to the custom as a law. custom to be valid & have the force of law
General custom in the form of must not conflict with any statute.
individual behaviour acquire the status of law (VII) Reasonableness – It is an essential of a
after long period of time. valid local custom. It is depend upon
Individual behavior – Repetition of whether it is in accordance with fundamental
behaviour in that society – Habits of people – principle of right / wrong.
Judicial notice through decision of court (VIII) Not apposed to public policy.- It should
incorporation of the behavior under statute law. not be violative , pubic morality public
E.g. 1) Rule of pre-emption 2) Damdupat etc. order, public good, law & order etc.
(IX) Opinio Necessities- It must show some
Essentials of valid customs mandatory / compulsory on the people of
By Blackstone that local area. E.g. contribution in the form
(I) Immemorial Antiquity – The custom of particular amount of rupees toward
should be so ancient that no living man maintenance of Bridge of that particular
could say when it had first started. area.
The antiquity is relative term it must be
applied with necessary qualification. Therefore Criticism:
in England the limit to legal memory fixed at 1) All customs are not law, - Declaration of
1189 A. D. ( when Richard –I became kind.) court is most essential.
Therefore immemorial antiquity today means 2) Diminishing scope of custom. – As in
that the custom must be as old as 1189 ( if not today’s modern developed society the
older) formulation of legal rules becomes more
explicit & as a more elaborate machinery is
In India set up for the making & administration of
Madhavrao v. Raghavendra Rao (1946) law therefore they play reduced role in
Bombay High Court – If it is shown that a civilized society as a source of law.
custom has been present for the last 30 years,
then it may be presumed that it has been in
existence for a long time. (IV) Other Sources of Law
These are called as formal sources
Thakur Gokul Chand v. Pravin Kumar 1952 The sources from which the law derives its
Supreme court – The custom need not be source and validity are formal sources of law.
immemorial nor before 1189 but it should be in These associates to the shape or system that

17
 causes the rules applicable formally. Here, we
accept the rules as valid and binding in the legal
system. Example: The manifested will of statutes
and judicial decision. Hence, the formal sources
of law include:
i. Will of the state: Sometimes for the
benefits of the people the state makes its
own laws on the subjects which are
provided in the state list under the
Schedule, with due process of law
manifested in our constitution.
ii. Will of the people: Laws are also made by
the will of the people sometimes on facing
certain problems though it has to be
considered acknowledgeable by the state.
Then the state makes it in the form of law.
iii. Judicial decision of the court: In this case
sometimes judgments of some lordships
with immense value are treated and
transferred into a law.

18
 MODULE - 03
NATURAL LAW THEORIES
Natural law in common sense means the Thus Natural Law is integral part of
law that is largely unwritten and consist of positive legal order. Therefore every positive law
principles of - 1) what law ought to be and 2) not must meet the parameters of Natural Law.
what law is, as revealed by the nature of man or * Dr. Bernard Case
reason or derived from the God. House of Lord held that, if law made by British
Del Vecchio says that, Natural Law is the Parliament violates the ethical moral values, then
criterion, which permits us to evaluate positive those laws would not prevail upon. Thus
law and to measure its intrinsic justice. Doctrine of Parliament sovereign is restricted on
The term Natural Law is analogue to the basis of principles of Natural Law.
high ideals like 1) morality, 2) justice 3) ethics, By 44th amendment two Articles 20 and
4) right reason, 5) good conduct, 6) equality, 7) 21are immune from suspension under Article
liberty, 8) freedom, 9) social Justice etc. 352 and 359 thus Natural law incorporated under
Thus Natural Law is not a body of Indian constitution also.
actual enacted law rather, it is a way of looking
at things a spirit of human interpretation in the *The History of Natural Law divided into 4
mind of judges. periods.
Lord Cloyed stated Natural Law has been I. Ancient period (500 B.C. to 100 A.D.)
envisaged as a mere law of self-preservation or Greek sophistic, Aristotle, Greek stoics,
as an operative law of nature constraining man to Roman Philosopher (Cicero)
a certain pattern of behaviors. II. Medieval period (400 – 1500) St Augustine,
The Natural Law has history of 2500 St. Thomas Aquinas.
years therefore there is no one theory of Natural III. Period of Renaissance (1600 – 1800)
Law and there are many versions of it. Grotius, Hobbes Locke Montesquieu,
Dr. W Friedman state the history of Natural Roussean.
Law is a tale of the search making of for absolute IV. Modern period or contemporary Naturalists
justice and its failure. (Early 1800 past 1925)
The Natural Law changed with Fuller, Finns. States that, while
changing social and political conditions. developing Natural Law 3 reasons played vital
role.
*Principles of Natural Law
The two important principles of Natural
Law cannot and never changed throughout the The Natural Law developed through five
development of Natural Law. trends.
(1) Universal order governing all man & I) 1st trend
(2) Inalienable rights of Individuals. Society first come in existence then state
Means the doctrine of waiver rejected for sake of justice and freedom because of
and emphasized upon Fundamental Right. emergence of Natural Law.
These two principles are backbone of every II) 2nd Trend
Municipal and Internal Law. These the basic King come into existence Ruler and ruled
pimple of Natural Law therefore incorporated in maintains equality, Religion played key
every positive legal order, otherwise Judiciary role in regulation of affairs of people, and
interprets it as a part of positive legal order. before state came in existence religious
fathers functioned as administration of the
*Basweshwarnath Case people. They have 1) religious order and 2)
Supreme Court held that Fundamental Right political power.
couldn’t be waived. III) 3rd Trend
*Meribally v Medison The religious and spiritual and political
U.S.A, Supreme Court stated that, Judicial powers separated from each other.
Right is Natural Right it is judicial activism to IV) 4th Trend
protect Fundament Right. Political authority derives power from
people and popular sovereign established

19
 then “Government and Law “ came into This law shall be treated, as binding
existence. because universe is created by God therefore this
V) 5th Trend is superior law.
Right to property in particular above life The whole divine law cannot accessible
and liberty and Natural Law in general. to all human beings only part of it accessible.
Thus the central notion of Natural Law Therefore it is “Accessible Devine Law” The
is that there exists objective moral principle Devine law gives justice to mankind and other
which depends on the essential nature of the things and it is object of the Natural Law.
universe and which can be discovered by natural He gave principle of ‘Lex Divina’ that
reason, and that ordinary human law is only truly is positive law enacted by the God himself for all
law in so far as it conforms to these principles. mankind in the form of scriptures e.g.
The rules of Natural Law can be ascertained by Gurusaheb, Kuran, Vedas etc. If Human Law by
reason and commonsense. its forms and content contrary to Natural Law or
The term Natural Law also appeals in Devine Law then it will be void e.g. cow
psychology science but its meaning but its slaughter case. The power to enact law is limited
meaning is totally different. It among and predict by principle of Natural Law and Devine Law.
the relationship between phenomenon e.g. law of Right to property is integrated part of
gravity while Natural Law in society science governance of society. As religious and political
having altogether different meaning - Law power imposed in Religious father they started to
which is based on reason Justice and exploit the people therefore it started to create
transcendental principles. Human Reason as a base of law. Thus Human
reason comes in substitution of divine reason.
*Features of Natural Law
1) There is a structural reality embedded in II) NATURAL AS A HUMAN REASON
the very nature of things which man has the This is the 2nd phase of Natural Law it
capacity to discover by his reason. was gave importance to Human reason to
2) Each being has a natural purpose or end or manage social affairs. The Human reason
goal became the basic source of Law.
3) There is an order of inclinations in each The spiritual and political power
being, which ‘pushed’ it towards its end. separated from each other. As the head of
4) Goodness is the fulfillment and completion Religion make disadvantage of religion and
of this end. make exploitation in the name of religion and
5) Man can thus know not only what he is, he God. Therefore people separated religion from
can also know what he is to do. politics.
6) This knowledge is general and man can Because of mutual influence of Natural
understand that there are certain Law and Natural Reason on each other people
fundamental principles of justice and want to enjoy their liberty independent from
morality, which govern all human conduct. Religion and they established political authority
to rule them instead of religion and supremacy
The 3 reasons help to develop the Natural given to the political power.
Law. During this stage I) individual want to
1) Devine Reason, enjoy liberty, ii) State want to enjoy supremacy
2) Human reason & and iii) commercial persons want to save there
3) Changing Contents of Natural Law. interest. This resulted into complex situation and
chaos. In this complex situation the human
I) NATURAL LAW AS A DEVINE reason played crucial Role.
REASON.
St Thomas Aquinas stated Natural Law Plato: The Republic
derived from law of God. It is basic colas tic Only human reason help to come together and
thought. neither injure nor suffer any body and develop
*Definition the human beings.
Law is an ordinance of reason for common He was convinced that in truly ideal
good made by him who has the care of the state the rule of pure reason embodied in
community. philosopher king and unhampered by law or
custom, ought to prevail. He asserted that social
progress must rely on the forces of I) knowledge,

20
 Enlightment and ii) Natural Reason (Right or This Stoic’s idea reminded the rulers
Just) . that above their commands there is a higher law
He made 3 points regarding what is right (Natural Law) founded on the precepts of
I. It is naturally right or just for each person Natural reason and justice.
to do his own business i.e. work for which
he is best suited. *Cicero’s Doctrine of Natural Law (104 43
B.C.)
II. There is a natural order of the virtues and *Cicero: Treaties on republic
the other good things ; and this natural Man has some objective standard of Right
order is the standard for legislation and and Wrong given to them by the mere fact of
III. Natural Reason alone could determine the there being men with human nature. This
best regime. That regime is naturally right body of principle common to all men called
or best in which those who are 1) best by as Natural Law and they based on it a
nature and training and 2) who are wise, considerable part of Romans Legislations.
rule the unwise with absolute power, As per him Natural Law is a universal
assigning to each of them (the unwise) law of nature arising equally from the fact of
what is by nature just that is what is by God s providential government of the world and
nature good or suitable for each of them. from the rational and social nature of human
beings, which makes them akin to God.
Aristotle: Rhetoric As per him Natural Law in itself is right
Truth is knowable and that truth and for no ruler and no people can make right
(reality) can be known for certain. It means that wrong, It is same everywhere and is
knowledge based on reason, and not a faith or unchangeable, binding on all men and all
intuition, is the real knowledge. It maintains that nations.
knowledge is both maintain that knowledge is Natural Law does not depend upon the
both accessible and public practically every man consent of men, nor is it brought into existence
has access to the knowledge of rationalism by convention it is eternal and unchangeable. It
through his sense and his rational faculties. commands men to perform their duties it
He developed standards of correctness restrains them from doing wrong things. It is of
available to the human intellect, which are universal application. God is the author of this
universally true. He is a rationalist in the sense law, its interpreter, sponsor, promulgator and
that he claims for the mind an ability to enforcing Judge therefore it is not morally right
apprehend essential structures. to invalidate this law, otherwise it is a sin to
Plato and Aristotle followed by the philosophy change this law. It doesn’t operate automatically
of the stoic school (300-B.C.) upon all rational creatures it can order their
Stoic – stated Natural Law means the law of God conduct only so far they apprehend it by their
and right reason. He said that man is rational conduct. Individual doesn’t under obligation to
and that God is rational and men have reason, render obedience to it he may be compelled by a
they have speech and the sense of Right and superior force to obey it but he is not under a
wrong. As per him the right reason is the law of moral obligation to it. Thus for Cicero Natural
nature, the standard everywhere of what is just Law is the law of God and of reason, and is of
and right, unchangeable in its principles, binding universal application. It binds the people
on all men whether ruler or subject the law of together in a common social bond by
God. recognizing the intrinsic worth in human
For stoics, the Natural Law is higher personality.
than the positive law or the law of custom. The The process of reasoning is, in truth, the
positive laws are varied, but Natural Law is one. exact opposite of that which Aristotle had used.
It privies Authority and norms to the positive law Aristotle had argued that men are not equal, and
(statute and customs). It is a perfect law, higher that citizenship must be restricted to a small and
law founded on divine revelation. It is law of carefully selected group whereas for Cicero
reason morality and justice. equality is a moral requirement.
On this basis stoic built up the theory of Thus as per him Natural Law is kind of
“equality” and refuted Aristotle’s arguments that technology or means to an end or practical and
man is a slave by nature, and diminished the workable rules for the realization of Justice and
importance of social distinctions between equality.
individual.

21
*Natural Law and Social Contract government, which they consider most suitable
This theory propounded by Hugo for themselves, e.g. Preamble of constitution.
Grotives, Thomas Hobbes., John Locke and
Roussean. This concept first time envisaged by *Berubari case
Italian jurist Marcellus of panda (1270 –1343). Not part

He used social contract term first time. *Keshawanand Bharati

As per him people treated as source of political It is part of constitution.
power. This theory also known as consent *S.R. Bommai
theory. The 3rd and 4th trend in 12th 14th C. It held as Basic structure and Internal part of
become visible by his theory The Ruled and constitution.
Ruler both treated at power to each other As per his view, if Ruler commits any
therefore if king commits any wrong then he wrong he not punished because people elect him,
punished. by surrending their right to him. Thus he rejected
Thus by this concept source of Natural pauda’sprinciple of Equality. The Right to
Law changes from Religion into the Human property is very sacrosanct right, which cannot
reason. By this theory the institution of “Social “ be removed or taken away
came into existence. 1st product and either some
body or body must be at power to control the II. Thomas Hobbes (1588-1679)
affair of social institution therefore Institution of He was the author of two books De
“state” came into existence. Cive (1642) & The Leviathan (1651)
This theory considered as ‘forerunner’ He lived during the days of civil war in
of the ‘Democracy’ because peoples were elect, England & Hence was convinced of the great
select and appoint ‘Body’ to govern them. This importance of state authority which he wanted to
theory upholds the principle of equality in the be vested in an absolute Ruler.
Natural Law. In his famous book Leviathan he
I. Hugo Grotius acknowledged the improved version of social
He propounded that instead of Divine contract theory of Natural Law .He shifted the
Law or Gods feat an individual reason is the emphasis from Natural Law as an objective order
basic source of law, only due to this reason to natural state as a subjective claim based on the
social exists peacefully and guides the affairs of nature of man and prepared the way for
society. individualism in the name of inalienable right”
He regarded principle of Morality He understood Natural Law not with
Higher Values as principles of Natural Law. By certain ethical principle but laws of Human
the Yardstick of ‘Rationality’ ethical principles conduct based on observation & appreciation of
and Reasonability we can test the morality or human nature.
immorality in the society. For him, the chief principle of Natural
Thus he totally rejected the view of Thomas Law was the Right of ‘self preservation’ by
Aquinas and importance given to Human which man tried to escape from the state of
Reason as a basis source of Law. He said “permanent insecurity” because men live without
that every man made or positive Law must a common power to keep them all in awe, they
be based on Natural Law i.e. Human Reason are in that condition which is called war & such
or morality. E.g. The principle of ‘pacta war basis of every man against every man.
santa servanda’ As per him, the life of an individual or
He used the social contract for two men in the state of nature was salutatory poor,
purposes – nasty, brutish & short therefore as per self
I) Internally preservation he transfer all his Natural Rights to
For the justification of absolute duty of the ruler whom he promised to obey
obedience of the peoples to the Government. unconditionally, then Ruler Became an absolute
II) Internationally ruler. The subject could not demand the
To create basis for legally binding and stable fulfillment of any obligation by the ruler. The
relations among the states. only condition was that the absolute ruler must
Thus the social contract is an actual fact keep the order.
in Human History where in construction of each He was against civil disobedience
state had been prescribed by social contract by therefore he get thrown away by civil war & then
means of which people had chosen form of

22
 people could transfer their obedience to a new Thus as per his view state is under duty
ruler. to protect right of individual.
All law is dependent upon sanction E.g.
therefore he said government without the swords 1) Hofehldian Analysis –
are but words, and of no strength to secure a man Right Duty.
at all. So that all real law is civil law, 2) Fundamental Rights against state
commanded & enforced by the sovereign. It is therefore state duty bound to protect
men & arms that make the force & power of the Rights of Individual.
law. 3) Amendment No. Vth to USA
There is no distinction between society constitution – Individual has right to
and state, all social & legal authority life, liberty &property or estate.
concentrated in the sovereign and church
subordinate to it. As per Locke – State of Nature is like
He propounded concept of Lex paradise, only some Institution not there to
Naturalist i.e. Law of nature by following way protect or preserve this paradise (e.g. peace,
(i) The fundamental law of nature is that every Mutual understanding, Good will) therefore
man ought to endeavors to obtain peace as far states came into existence to protect the
as he has hope of obtaining it otherwise he Individuals Rights.
can seek & use all help & advantages of war. As per him, the basic object of social
contract was to preserve Right particularly right
(ii) If others were willing to follow the same rule, to property. Therefore laws made by state should
men should be content with so much liberty not take away basic Natural Rights of
against other men as he would allow to others Individuals.
against himself. Thus Natural Law superior to positive Law.
The Natural Law is limitation on the sovereign
(iii) Men should performed their covenants made power of the state.
therefore nature was fountain & origin of
justice. *Keshawanand Bharati case
He said injustice is nothing else than the It was held Doctrine of Basic structure, which
non-performance of covenants. The nature of cannot be altered by Legislation.
justice consists in the keeping of valid covenants,
which start, with the constitution of a civil power III. Rousseau (1712-88)
sufficient to compel men to keep them. Rousseau: The social contract & Emile.
As per him in early era individual had
unlimited liberty there was innocence
III. John Locke (1632-1704) everywhere no competition & no jealousy
As Natural Law is superior to the any therefore individual lived the free life of a
law therefore law must be based on moral or savage.
higher or Ethical principles. But due to development of Act of
Thus Locke recreates ethical value Agriculture& Metallurgy which resulted into
rejected by Hobbes, because as Natural Law is diversity of man’s talents. The stronger man did
superior then it must contained or incapacited the greater amount of work & craftier got more of
Higher Moral, Ethical principles & they are the product. Thus difference between Rich &
integrated part of Natural Law. Locke was the poor aroused, which resulted into inequality
opponent of Hobbes. In place of the theory of therefore life, became intolerable. There were
absolutism or dectorship of Hobbes Stood for wars & murders everywhere.
authority while Locke stood for liberty. This problem solved through social
He used the social contract to justify contract by this everyone surrendered to the
government by majority, which held the power community all his Rights & the result was that
in trust with the duty to preserve individual the community became sovereign. Even after
rights whose protection was entrusted to them by contract, in individual remained free as was
individuals. before.
He placed the individual in the center & Law is an expression of the general will
invested him with inalienable Natural Right the government & Sovereign are separate.
among which the right to private property was
the most prominent.

23
 First law was passed by sovereign to majority will becomes the general will by the
create government and governors appointed to minority willing as the majority had willed. The
run government. general will is the expression of the highest in
Thus sovereign is infallible, indivisible, every man. It is the spirit of citizenship taking
unrepresentable & illimitable. The sovereign is concrete form & shape Government Will is the
unrepresentable because it lays in the general manifestation of soverign therefore when
will, which can’t be represented. sovereign acts for the common interest, it is the
The sovereign is absolute like Hobbes exercise of general will.
but difference is that Hobbes – Monarch is head So long as laws are in the common
of state Roussean – whole community. interest, they are the expression of the general
Thus he unites the absolute sovereign of will which is the key to self – expression. The
Hobbes & the popular consent of Locke into the Government Will can’t be self-contradictory, it is
“Doctrine of popularity”. “General Will”. unity in variety, and it is always the right will. It
Hobbes state sovereign & government are always tends to the welfare of the whole.
identical. There can’t be justification for
Rousseau state 1) Representative form of disobeying it. If individual differs from
government, 2) sovereign must rule property. It Government Will he is in the wrong because
must not do anything which is not in the interest then his will become selfish will & not general
of the whole people . It must maintain equality will such persons will manifested in the authority
before law & Rule of Justice of state therefore he is free even he not affirm the
Roseau’s stated that sovereign constitute general will.
compromise between constitutionalism of Lock The Government Will is inalienable &
& Absolutisms of Hobbes. indivisible can’t delegated otherwise it closes its
Thus sovereign lies in general will of character.
people & cannot impose limitation on itself as it Thus he wants to bring popular
has only interest in favor of public at large. sovereign. The state & laws of state are subject
As nature gives each man an absolute to general will of people e.g. Post Office Bill.
power over all his part likewise social contract Thus sovereign power should be exercise on the
gives an absolute power to the body politic are basis of collective will of people. The trend of
all its parts. - Sovereign. individualism changed to collectivism due to
Absolutism not based on fear or emergence of welfare state.
compulsion but upon consent. The legislative
executive judicial power emanate from sovereign *Importance of Social Contract.
& which collectively belongs to people. Thus 1) It started the changing minds in the
sovereign is source of all laws, separation of European countries.
power not divide sovereign but used it in 2) It involved separation of law from moral
convenient manner. duty to rights.
Man surrender right to state & not to 3) It liberated the individualism from the ties of
out side agency but to a corporate body of which feudalism & church.
he is a member therefore he is free. The right to 4) Provide ground for modern theories of
liberty, Equality & property are right of citizens Government.
& not Natural Right & inherent right of 5) It inspired the revolution in United State &
individual Liberty means civil Liberty not France.
natural Liberty. Men are equal by law & not by 6) It also inspired totalitarian theories of
nature. Government on the basis of general will.
The Liberty is not Licence, but it is the 7) It helps to develop modern International
rational freedom of an individual who lives a Law.
common life with others & whose welfare is
integrally related to the welfare of others.
Law is the expression of general will III) CHANGING OR VARIABLE
therefore it will not be unjust because nobody is CONTENT OF NATURAL LAW
unjust to himself. Law established equality,
which belongs to man in the state or of nature I. David Home (1711 – 1776)
therefore man, is free when he obeying laws David Home: Treaties of Human Nature, 1739
because laws merely reflect his own will. He put He destroyed theoretical concept of Natural
greater emphasis on the general will, the Law & said that Human Reason not provide

24
 any guidance to Human Activity as well as All human being indorsed with human
Human Law. E.g. smoke – fire 2+2 = 4 mind & they are part & parcel of Nature and it is
Reason itself is a state of passion creation of Nature therefore human being is
therefore reason could not basis of every human distinct from nature as well as he can dominate
action. E.g. Head v Heart the Nature.
Heart provides guidance to head. Thus Human Mind is basic source of
Therefore Reason must have moral sense. He Law.
attacks 3 great branches of Natural Law. 1)
Rational Religion – It is fictitious, any deductive Kant
proof of a matter of fact is impartial the existence Investigate the functions of Mind.
of God must be indemonstrable. So-called 1) Thinking morality play important role.
Religion lack even the practical reliability of 2) Volition morality play important role.
scientific generalization therefore religion on 3) Filling – philosophy play important role.
passion of feeling. Religion may have a Man has freedom to decide what is right
psychological or anthropological explanation of & what is wrong and it is helps to react in
its belief & practices but there can be no question particular manner. The freedom & morality are
of truth. interlinked & it helps to create mind.
A postulate is basis of ethical postulate
*Contractual Theory of politics & it is important & necessary.
In moral & politics that why values Kant introduced concept of Categorical
depend upon propensities to action it is impartial Imperative – Act in a such away that the
that reason by itself should create any obligation. maximum of your action could be maximum of
The force of moral obligation depends upon the general notion.
acceptance of the propensities wants motives to Thus your act must not disturb the
action that gives rise to it. others then only other give respect to your
Thus he wants to give psychological action. As per him categorical imperatives is the
explanation of behaviouir, depend upon the foundation of Natural Law. It comes from inner
pursuit of pleasure & the avoidance of pain as its voice of feeling.
sole motive. He distinguished between Morality & Legality
Therefore he first time evolve theory of I. Morality – It is matter of action
Utility i.e. greatest happiness of greatest inconformity with external standard set by
numbers. Thus he was 1st Utilitarian & he Laws e.g. Indian penal code – Mens Rea.
substitute moral sense instead of reason to law. II. Legality – it is matter of action
The moral sense is to be guided by inconformity with external standard set by
pleasure & pains therefore Law must provide Law e.g. attempt.
maximum happiness to greatest number. He He said law is nothing but the aggregate
upholds Utilitarian theory of moral, political & of condition in which arbitrary will of one
economic value. Thus moral sense is the basis of individual may be combine with that of another
all laws. under general inclusive Law of freedom.
Thus individuals interest subordinate to
The moral sense is not source of just but it is social interest therefore individual interest club
important in – with general interest. The force may be used to
(1) Creation of social & establishment of peace enforce public Interest, for peaceful co-existence
& order in society. the use of force can’t rule out.
(2) Guard the public interest at the cost of He lastly said that principle of equality
individual equity. of freedom is basis of Natural Law. He wants to
Therefore whenever there is conflict establish only one country in whole world.
between Individuals & public Interest then only
Public Interest should be protected. E.g. Art. Stammler (1856 – 1938)
31C,31B ,(IXth Sch.) Art 39(b) & (c) He is the exponent of “Natural Law with a
*Kameswar Singh Case variable content”. He first distinguished between
It was held Directive Principles of State Policy I. Technical Legal science which concerns a
are superior to Fundamental Rights. given Legal system – content of Law
(concept of Law)
Aristotle

25
 II. Theoretical Legal science, which concerns 1) No member can be arbitrarily excluded
rules giving effect to fundamental from community.
principles. 2) Legal power exclusive so far as the
Ultimate principle of law (idea of Law or executed person can till being his own
Justice) neighbor.
*Saffudin Saheb v. State of Bombay
Law is nothing but a species of will others, (Ex communication by Dai-ul-mutalab)
regarding, self-authoritative & inviolable. High Court held invalid that right to community
Analysis of meaning of law given by him - can’t taken away .
*Species of will – concerns with orderings of Supreme Court held valid as he enjoys all civil
conduct. Liberties. Being a member of society.
*Others regarding – concerns with man’s
relation with other man. Duguit
*Self-authority – general obedience The validity of Natural Law must be
*Inviolable – its claim to permanence. checked by functional principle of Right & Law.
Thus idea of law is the application of Law must be proper, violable Right & Law
the concept of law in the realization of justice. based on social interdependence because it is
One must seek a Universal method of making necessary for social unity or social solidarity
just law, only it is the highest expression of amongst the people. Law has to develop & help
man’s social activity. social solidarity or cohesiveness in society. He
Its aim is the preservation of freedom rejected, the notion of Morality & introduces
Individual with the equal freedom of other Social Interdependence as a basis of Natural
individuals. In the realization of justice, specific Law.
content of rule of positive law will vary from E.g. Farmer -Worker - Industry.
place to place & from age to age i.e. Natural Law As per him the notion of Natural Law
with a variable content. Law must contain not require because every individual/ section in
Justice, Liberty & right as these are universal so in society. Interdependence on each other
parameters traced upon which every law enacted therefore they not require Natural Law.
otherwise law will be invalid law is not Only duties are recognized to fulfill the
procurements of History, philosophy, and need of society & once need fulfilled then right
society, Religion, Morality. It is independent to not required.
these facts. Thus law has its own base.
Thus law is to be pure & Independent Aristotle said fundamental specialization i.e.
He rejected morality as the basis of law & started every section in society has to discharge its own
Natural Law as a changing content. Thus seeds function fulfillment of duty amount to fulfillment
of positive law given by the Naturalist of Rights e.g. u/A51A Fulfillment of Duty.
themselves. Legislation is less the production of
As per him the validly of Law or Legal legislature because it is production of facts
system is based on purity. Law is combining, existed in society, therefore if law passed by
sovereign inviolable volition viz – There must be legislature in accordance with constitution but
relation between Law & its Goals and objectives. not helps or further the social Interdependence
Society having two principles then that Law will be void therefore constitution
I. Principle of Respect has to also further the social interdependence.
II. Principle of participate Duty combined with the Liberty of
others. Liberty exercised for the Development of
I. Principle of Respect others by which only the social unity achieved.
1) No ones volition must subject to arbitrary Tribunal set up containing all section of
desire of another e.g. Art 21 – Due society to decide whether, Law passed by
procedure. Legislature is further the social interdependence
2) Any Legal demand must of such a nature or not and its decision in favor called as positive
that addressee can his own neighbor i.e. Natural Law which helps the social
Respect i.e. Respect the others equality as interdependence.
you have.
Thus 1st principle of Natural Law is maintained.

II. Principle of participation

26
 Supreme court held that Publication of Law is an
essence of implication of Law otherwise Law
REVIVAL OF NATURAL LAW will be bad. Public controls the Delegated
PROF. LON L. FULLER (1902) Legislation.
As per his theory the central aim of
Natural Law is the attainment of “Satisfactory (III) Law must be suffiently Prospective.
Human Life” The date of application of the enacted
Law has to see, How Human Life will Law should have prospective effect & not
be more & more become the satisfactory one. retrospective. This is the legislative rule. In
Judicial process there is retrospective effect
As per him the morality is the necessary e.g. Ex post facto Laws u/a. 20 (1).
component required for collaborative articulation Thus though the prospectivity is the rule
of shared purposed which are common to survive of legislation even Retrospectivity cannot
human society e.g. not to injure, torture, kill over rule.
attack etc. (IV) Law must be sufficiently clear &
The most fundamental principles of intelligible.
Natural Law is to affirmation of Role of the Law must be rational in order to avoid
“Reason” in Legal order because, it plays key social disorder.
role to govern the society. (V) Law must be sufficiently free from the
Thus there is close relation between contradiction.
aims & means therefore legal order must be E.g. Not with standing. ……Etc.
right, therefore connection between Law & (VI) Law must be sufficiently constant through
morality is necessary in order to achieve means out the time.
& goals of Law. (VII) Law must not required to be impossible.
He gave five fold encompassed (VIII) Law must be administered in
procedural arrangement & they are analyzed as accordance with the provision so that
followed - people could abide by it.
(1) Legislation All these principles are called as “Internal
(2) Adjudication Morality” because they are Intrinsically &
(3) Contract deeply rooted in every Legal system and they are
(4) Customary practices & part & parcel of every legal system.
(5) Electoral methods.
Thus Law passed in relation to these *Importance of these principles.
five-fold arrangement then only it is Natural Law 1. They provide or prescribe certain standard
because it represents compulsion & necessity to for official behavior to carry out there
develop society. E.g. U/S 23 of Indian Penal function of Business.
Code Act 1872 the object of contract must be 2. They are the yardstick to qualify Law as a
moral one, Protection of Civil Right Act, Peoples Law or Legislation as well as providing
Representative Act. Licence to law.
Thus every legal system is “purposive If any Law or Legal system failed to
Human Enterprise” i.e. there are certain comply any of these principles then that Law or
purposes, which has to be achieved by legal Legal system is called as “Half Legal System”.
system for the sack of Human survives, &
development. Prof. Joseph Razz criticized this theory –
The sustentative Laws must follow I. Rule of Law doesn’t mean Law; the Law must
certain necessary procedures to achieve goals be attached with justness.
therefore certain requirements should be fulfilled E.g. Nuremberg & Tokyo Trials
by law as follows -
(I) Law must be sufficientatly General that it is II. No any Legal system can be measured as full
the basis of Legislation. or Half because legal system itself is a legal
(II)Law must be sufficiently Publicly system.
Promulgated.
So that people could know what law is III. Access to court or justice must be the IXth
& it is an essence of Legislation. principle in order to give Legal Base or sanction
to them.
*Harla v. State of Rajesthan

27
 *Bandhva Mukti Morcha Supreme Court held, Right to Education is
J. Bhagwati stated that access to court is the Fundamental Right u/a. 21 for True & Real
Basic structure. Knowledge.
*A.D.M. Jabalpure v. Shivkant Shukla.
J. Khanna by descending judgment held that (III) Play -
right to access court is Basic feature of the Work for own betterment or
constitution. advancement.
On the basis of this decision the 44th
constitutional amendment is done & now Art20 (IV) Aesthetic Experience –
&21 immune from the suspension during the Goodness is to be appreciated.
National Emergency & Art 21 also include Right
to Judicial Review. (V) Sociability & friendship -
To help & co-operation for the co-
PROF. FINNIS existence.
Prof. Finnis: natural law & Natural Right 1980.
He rejected Natural Law tradition. He (VI) Practicable Reasonableness –
believed in the changing content of Natural Law. It means use of Additional Intelligence
He rejected the morality as a basis of Natural to shaping own character & life .
Law. There is no need to declare Law invalid if it
is contradictory to moral principles. (VII) Religion –
The Natural Law is set of Principles of It is own belief to use own
practical reasonableness required in ordering advancement.
Human Life & Human community. There are E.g. 1) Preamble of Constitution,
certain basic common goods, which are 2) Art 25 – 28.
necessary to Human Social or Legal system. As Thus in ordering the community these
they are pre moral therefore their validity can’t Basic common Goods should be acknowledged
adjust on any external basis i.e. morality higher for the Advancement of Society by Society itself.
principle because they are exists prior to The ultimate aim of law is provide
morality. justice. Therefore law must be just &
Thus these basic common goods are Reasonable and these Basic common Goods are
immune from ay scrutiny by Judicial or Extra the stipulation on State authority therefore the
Judicial or Quasi Judicial legal system. There is machinery of Law required to perceive these
no question of the desirability (Have or Have goods & not to jeopardize these goods, otherwise
not) or Legality as existence of Human society law will be unjust law.
itself is the proof of the existence of Basic They are necessary for good, welfare &
common good in that society. Advancement of people of Law. E.g. Art 21 by
He believed in Individual Autonomy i.e. 44th Amendment immune from suspension
freedom with independence. There is no during National Emergency.
question of only surviving but it is matter of
human striving, because human serving must He added three more goods -
have some objective in the life. (I) Need
He gave Seven Basic Common Goods (II) Function &
& these are enumerative & not the exhaustive (III) Capacity.
every rational human being has to assent to these
basic common goods as follows – These are “Basic Methodological Requirement”.
The Basic Methodological Requirement & Basic
(I) Life - Common Goods together constitute the Natural
It is necessary for self-preservation as Law & they are required for Distributive Justice.
well as self-recognition & striving. *Asiad Case
E.g. Art 21 is the “Basic structure “ of the *Express Newspaper case.
constitution. In these Supreme Court held that if Industry has
no capacity to pay wages then it has no right to
(II) Knowledge - run the Industry, because the wages the wages
Preference of truth over falls believes to are need based.
avoid the superstitions belief in society.
* Unnikrishnan case

28
 Thus functions means Role & 1) Human vulnerability to each other.
Responsibility of each Industry & it is amount to Ability to torture, kill, Injure, other
capacity to run the Industry. person.
He Advocated Right to private property
because the private property is to be symbol of 2) Approximate Equality.
status & the resources could be employed more Wider disparity in society.
proper way & properly enjoyed.
E.g. - Privatization of Government Undertaking. 3) Limited Altruism.
The Rights are not Natural or Limited unselfishness & unlimited
Fundamental these are only Human Rights. The selfishness.
Human Right are absolute there are no any
limitations on them. 4) Limited Resources.
E.g. - Right to Life, Reputation etc. Limited resources & unlimited want.
Thus the public authorities are political
for public good. 5) Limited understanding.
The privatization of public power is Not to understand each other resulted
detrimental to scheme of Basic Common Good; into crises, troubles etc.
therefore if public authority acts against these These are inevitable features of Human
goods then legality of Act can be challenged. tendency, which follows natural necessity for
*Makhan Singh v. State of Punjab certain form of protection to person, property &
Supreme Court held that right to life couldn’t promises. He rejected relation between Law &
suspend during National Emergency. Morality similar to Finnis.
He said neither law necessarily derived
*Shivkant Shukla v. A.D.M. Jabalpure from morality nor there could be any essential
Supreme Court held that J. Khanna stated that relation between law & morality, but he further
right to access court is one of the Basic Right to said there could be relation between law &
challenge Legality of Law in the scheme of morality/there could might derived from
Natural Law & Natural Right. morality therefore the content of morality in law
Thus Rule of Law used to help the is minimum & not essential one.
people & not to exploit them. He said that the whole History of
The Rule of Law & principle of Mankind, there was operation, exploitation &
Legality is greatest detriment to Sovereign discrimination on various grounds like religion,
Authority against misuse of the power mere the race etc, therefore it must be suppress.
competency of Legislation is not important, it E.g. summit on Racism in South Africa
has to meet the standard of the Rule of Law & at Durban on 3rd September 2001.
Principles of Legality.
Prof. Neil McCormick criticized Hart
Prof. Hart (Contemporary Jurisprudence) 1) There is striking omission of Human
He was the Leader of contemporary Tendency in the form of ‘Sex’, which
Jurisprudence i.e. coming together positive Law translates the limit of supremacy rational
& natural law. He described or restated position human being as his understanding.
of Natural Law from semi-sociological point of Therefore is close relation between morality
view. He said that if Human being in society & Human tendency.
wants to leave in close proximity then there is E.g. Vishwamitra, Rupam Deol Bajaj case,
necessary of certain “Subs tentative Rules,” but Vishaka case, Bodhisattva Gautam case.
he did not point out those Rules. Instead of those 2) Killing in war, capital punishment, abortion
rules he stated that there are certain facts, which are needed for survival.
constitute core of indisputable truth in the riteme 3) Pure or absolute equality is not possible.
of Natural Law – “minimum contents of Natural 4) If law lack Minimum contents of Natural
Law” Law. Then that law is proper law.
He said that first & foremost object of Even though these criticism, he was
Legal system is surviving because society is not Bridge Builder between positive law & Natural
club of suicide, people are not only want to Law positive law as apposite to Natural Law the
survive but also want prosperity of civilization. positive law appose morality as a foundation of
He point out Human nature or tendency – law but Hart combined these two laws together.

29
*CHARACTERISTICS OF NATURAL LAW I. Based on morality.
By this theory it has been possible to
I. Emanates from an absolute source. find common principles among different
It is based on values, which comes from religions & outlook and to that extent it creates a
an absolute source such as God or Nature. common bond between people of diverse
II. Justice & Morality are the two pillars of religion & culture.
Natural Law.
Morality is a set of beliefs, values II. Revolutions & freedoms struggles have
principles & standard of behavior found in been based upon Natural Law precepts.
particular social groups. It is an Internal force, it E.g. French, American, Indian, -
appeals to the conscience. Morality is influenced Freedom & Democracy.
by religion but it is not religion.
Thus an atheist may be a very moral III. Important Legal principles are based
person. Morality doesn’t frighten or command, upon Natural Law concepts.
it only persuades. If Moral Rules are broken E.g. ‘Reasonableness, justice, Equity
there may be moral sanctions & social and good conscience, Innocent until proven
disapproval. guilty.

III. Reason & common sense is the basis of IV. Basis for Fundamental Right.
Natural Law. E.g. Right to Life, Liberty etc. These
Aristotle – man can discover the eternal rights are self-evident & in the absence of these
principle of justice by his reason, & because Rights man cannot function in modern society.
man’s reasons are part of nature, the law Natural Law means Natural Right i.e. Justice,
discovered by reason that is Natural Law. Paternity, Liberty & Equality.
Stoics – man’s reason allows him to
differentiate right from wrong and law is based V. Check on bad regimes.
on man’s concept of Right & right cousness . Such regimes controlled only by the
struggle based upon the principles of Morality &
IV. Natural Law is common to all states. Justice.
Aristotle – Natural Justice means,
which everywhere has the same force & does not VI. Justification to resist bad Law.
exists by the people thinking this or that. Immoral Law is no law. Any man made
Friedman – Natural Law concerns a Law if not in conformity with Natural Law
universal order governing all men e.g. You shall principles then it should be resisted & removed.
not kill – common to any legal system.
VII. Limits the power of Legislature.
V. Proposition of Natural Law is both self In determine the validity of enactments
evident & eternally valid. the principles of Natural Law play a very
important part. E.g. Postal Office Bill.
The absolute values of Natural Law
reflect the essential nature of universe & are VIII. Natural Law serves as guidance to
immutable (unalterable)& eternally (forever) positive law.
valid. I.e. Natural Law is valid forever & is Not to enact contrary to Morality &
unchanging. Natural Law signifies the truth, and Justice.
truth cannot change.
IX. Natural Justice is also extended to
VI. According to the naturalists, unjust law is administrative actions.
no law. *Maneca Gandhi Case 1978
Positive law must be in consonance Supreme Court held Natural Justice is a great
with the Natural Law principles based on justice, humanizing principles intended to invest law
morality& reason. with fairness & to secure justice & over the years
Lex injusta non est ex means unjust law it has grownd into a widely pervasive rule
is no law e.g. Nuremberg & Eichmam Trials. effecting large areas, of administrative actions.

*Merits of Natural Law. *Demerits of Natural Law.

30
(I) No distinction between Law & Naturalist said Law emanates from God
Morality. but it is difficult to prove existence of
Naturalists confused law with morality God.
in actual real fact, which may not
constitute law.
(II) The Problem of what is Morality?
Who decides what is or not moral. It is
difficult to lay down absolute principle
regarding it.

(III) Encouragement to the dangerous

theory of Right.
As per this theory people get rights
from nature & therefore their rights are
not subject to control & regulation by
the State. But in actual practice control
& Religion by State on Right is
important otherwise there would be
disorder in the society & the principle
of Might is Right would rule the
society.
E.g. Nazian concept of superiority of
the Aryan race.
(IV) Encouragement to disobey laws.
Naturalist said that unjust law is no law
& must not be obeyed. This may
resulted into disobedience, which leads
to chaos & anarchy. Who decides what
is unjust law.
(V) Natural Law is static & unchanging.
It doesn’t keep pace with development.
Some of the Natural Law concepts are
very regressive in nature & look back
rather then forword.
Rousseau
Back to Nature, which is
inconsistent & unrealistic in today’s
dynamic society e.g. Abortion –Natural
Law – wrong, but for population control
etc its necessary.
Stammler
Law needs to be tested
regularly in the light of the”
community’s prevailing moral ideals.”
(VI) Not all Natural Law ideas are self-
evident.
Salmand criticizes Natural Law means
attitudes to moral proposition unlike
attitudes to truths of logic vary with
time, place & culture. Therefore it is
very difficult to contend that such
proposition is self-evident.
(VII) How do we prove the existence of
God?

31
 MODULE - 04
LEGAL POSITIVISM

Prof. Hobbes Stammler, Fennis rejected Supreme Court laid down Doctrine of Basic
the morality, as a basis of Natural Law because structure to check the constitutional
foundation of Natural Law is not sound then law Amendments or Law making power of
subsequent Legal theory will be sound. Legislation.
Due to above the theory of positive Law
immerged for appose the Natural Law theory it *Ismile Faruki Case
developed subsequently & theory of positive law This principle confirmed by Supreme Court.
begained by the Naturalist themselves.
Stammler said Law must be immune from all *S.R. Bommai Case
the inquiries of morality or ethical principle. Supreme Court restricted executive power of
Bentham, Austin, Kelesen & Prof. H.L. Hart are president to suspend Fundamental Right during
the known positivists and they descending on the National Eergency.
Natural Law on the basis of the morality. They
separated morality from Law. *State of Rajasthan v. Union of India
John Austin (1790-1859) was an English lawyer Supreme Court held Fundamental Right couldn’t
who propagated the imperative theory. be suspend during state emergency u/a. 356.
John Austin: The province of Law Determined.
The existence of law is one thing & But Austin rejected the supremacy of
merits and demerits of it is another thing. A law, constitution to the sovereign Legislative power,
which actually exists, is a law though we happen because it is moral conduct & said that the
to dislike it. constitution only creates the positive moral
As per him we shall not apply test of obligation.
Justness, Reasonableness & fairness to the law.
*A.K. Gopalan Case Bentham
Supreme Court held that whether law is proper & If any law passed by the sovereign
reasonable is no question only its existence is Legislative Authority reaches the degree of
important & rejected the due process u/a. 21 & inequality, then there is plane moral obligation
applied law as it is. on people to appose it & reject it because such
William Black Stone law became immoral & people not under due to
Law of God is superior to all the other laws obey it.
therefore man made law must be in tune with
the God made law as it derive validity from *Postal Office Bill
that divine authority Violative to Right to Privacy u/a. 21
Austin assented this view & said there
will be frequent co-incidences between Law & Thus Austin rejected morality to some
morality. extends, but Bentham does not renect it. They
Prof. Hart – Thoughts of Austin are are pole –apart.
always confusing therefore it is myth to say
whether Austin appose he morality or not. Prof. Hart given meanings of positivism
Bentham – mere Legislative I. Law is commands of Human beings.
competence or existence of law is not sufficient, It shows kind of mandetoryness so
instead to that law must comply with the Higher people have to obey it. Thus source of
Law of Land. law is not divinity or Higher principle.
Thus he didn’t reject totally morality as a basis
of law. II. There is no necessary connection between
Thus as per Bentham sovereign Law & morals as well as Law as it
authority ‘s power must be in tune with the is & Law ought to be.
higher Law i.e. constitution because higher law Ought to be morality is value lead
only can control the sovereign power & he said statements.
every law or Legal system shall be subject to
principle of Utility.
*Keshawanand Bharati case

32
III. Law must be distinguish & separate from *Characteristics of Law given by Austin.
inquiries of aspects like Sociological, Political *Definition
etc. Law is a command of sovereign addressed
As law, as it is there is no question of to its subjects, the enforcement where of
intoning law with other factors. secured by physical force of state.

IV. Legal system is closed Logical system. *Analysis of the definition

Only on the basis of existing law the legal
issue in the society has to be addressed I. LAW IS A COMMAND OF SOVEREIGN.
because laws are matter of as it is & not His theory revolves around the notion
ought to be of sovereign. Sovereign means the determinate
*Vishaka Case human superior i.e. king or Dictator or Ruler.
Supreme Court enacted guidelines given by the The peoples are under absolute duty to follow
Internal Declaration because of absence of that command.
property law or Legislation to protect women He gave two connotation of sovereign.
from sexual harassment. 1) The sovereign power should not use on the
basis of morality.
V. Moral judgments can’t be establish as a 2) No any restriction or checks on exercise that
statement of facts. sovereign power.
As law is matter of fact as it is exist & It has positive aspect that peoples under an
merits and demerits of it not important. absolute duty to obey command & negative
aspect that sovereign is not under duty to
*Austin gave following characteristics of obey law passed by it.
Analytical school. Thus sovereign command applicable to
people in civilized society & sovereign is
(1) Main object is to promote certainty & immune from this command.
predictability in law.
It can be achieved by removing morality or There are four attribution of notion of
higher principles from law. sovereign
(1) It is not subordinate
(2) Offer the scientific study by way of It is not creature of law rather it is creator
observation & verification. of Law. E.g. constitution is creator & the
This is in order to attain certainty & parliament is creature of it.
predictability in Law.
(2) It is illimitable or not limited.
(3) Law has to be a definite & verifiable As it is creature the sovereign ‘s
source. Legislative power is absolute therefore it is
Command of sovereign is the source. illimitable.

(4) Sanction is essential element of Law. (3) It is unique.

This is in order to bring the mandetoryness As there is only one sovereign
to law. authority.

Prof. Pound called this theory as Threat (4) It is united.

Theory of law. The all sovereign powers in one hand.
This uniqueness & united ness make
(5) Binding ness & Recognition of Law sovereign absolutely absolute.
comes from the State.
Law itself as enacted by sovereign Prof. J. Razz
authority so it get recognition Command is desire of only the sovereign &
automatically. following conditions must be fulfilled to stand as
In case of Municipal Law binding ness command of sovereign as a Law.
& recognition by the state , while in case of A-Austin & C- command.
International Law it is choice to party to (i) A ---Desires that some others behave in
make binding on each other. ascertain ways.
(ii) A ---Has expressed his desire.

33
(iii) A---- Intends to cause harm if his desire not E.g. Doctrine of Basic structure.
fulfilled by them. Also the law couldn’t command of
(iv) A---- Has power to do so. sovereign but it must encompassed with the
(v) A----Has expressed his intention to do so. social wants & desire. E.g. Postal Office Bill.
(vi) C-----Expression of the contents of all these.
2) Notion of sovereign
Thus only after completion of these all His notion of absolutely absolute
condition then only A&C will be Law. sovereign is not acceptable in toto in the federal
system like India because of separation of power
II. LAWS ARE RULES SET BY u/Sch. VII. The sovereign is not technical but it
DETERMINATE AUTHORITY. is pragmatic & realistic one therefore the
The source of Law is tangible. sovereign power restricted on the basis of
Fundamental Right of person.
III. LAWS ARE RULES OF GENERAL *Vishaka Case
APPLICABILITY. *Rudalshah Case
He used politically organized society Held that sovereign liable to pay compensation.
instead of state therefore law must be apply In case of De facto & De jure sovereign,
to it in general. the sovereign authority is one & power of it
IV. LAWS OR RULES DEALS WITH ONLY executed by others therefore it is against this
EXTERNAL HUMAN ACTIVITIES. theory. In case of an International Agreement the
Kant sovereign authority under due to follow it. In
1) Morality means Internal motive. case of today’s modern judicial trends in the
2) Legality means External act of human form of Arbitration & Conciliation the notion of
beings. sovereign authority not acceptable.
Thus only action, which is contrary to In actual practice, the people obey
sovereign law gets, punished therefore sovereign & not sovereign individual person, but
conspiracy, instigation, abatement, bad will it is obedience of sovereign.
having no answer in this theory.
3) Separation between Law & Morality
V. LAW US A SANCTION. Prof. H.L. Hart
In order to qualify Law as a Law it must The minimum content of morality must
contain sanction or punishment& it is basic be in Law. E.g. Fundamental Right, Principles of
characteristics of Law. Natural Justice, Rule of Law, and Gender Justice
etc.
*Criticisms against Austin’s Theory. These have rooted intrinsically in every
1) Law is a command of sovereign Legal System. Therefore in today’s democratic
In today’s modern society the notion of state the Austin’s separation of Law from
Law & making of Law is changed. Law only not morality can’t acceptable in toto.
made by sovereign but also by -
i) Delegated Legislation. 4) Sanction
ii) Supreme court U/A 141 The people conscience & will also play
iii) There must be choice given to the people important role in order to obey Law. In sanction
e.g. contract, will, and partnership. the psychological elements involved therefore it
Duguit diluted the notion of purity of positive Law.
The command is a desire therefore it The people accept Law given by
involves psychological element also therefore sovereign authority because legitimacy given by
purity of Law from morality not maintained. In them to that authority through any means
today’s modern welfaric state the sovereign is therefore they treat Law enacted by that authority
not immune form its duty. is binding on them i.e. acceptance of Legitimacy
amount the obedience of law by people.
Bentham In some cases if public officer disobey
The political morality is the basis of duty then there is punishment even through he
sovereign authority therefore law is not only it is was exercising sovereign authority.
made by the competent sovereign authority but it E.g. R.D. Tygi 1992, Bombay Riots
must as per the higher law of Land i.e. (Suleman Bakery case) Rajesh Gopal DIG
constitution. Arrested for corruption Dec. – 2004.

34
 Person teaches leason of obedience III. KELESEN’S PURE THEORY OF LAW.
since the childhood therefore he has tendency or As per Kelesen’s view law must be pure.
habit of obedience. In case of general exception Hams Kelesen (1881-1973) was an Austrian
in IPC the punishment not given for offence jurist who framed the constitution of the
committed. The sanctions are presents in the Austrian Republic in 1919.
community in the non-Legal form like religion, He advocated democratic ideals &
custom & they form the Law of Society e.g. therefore had to flee Austria when it was taken
Saffudin Case. over by the Nazis and escaped to the U.S.A.
where he became prof of Political science at the
Austin’s notion about existence of Law university of California, Berkeley Kelsen’s pure
is one thing & merits and demerits of it is theory of Law was enunciated in his famous
another thing not acceptable e.g. Dena Case, book “General Theory of Law and State “
Form of Death sentence, merit demerits u/a. 20 (1995) in U.S.A.
& 21. E.g. Codification in Law must be done
Even though existence of sanction the in order to bring the unity in Law. Because of
rate of crime is increasing in the society & it Heterogeneous mixture of Law it is become
can’t control the reoccurrence of crime. difficult to tress the source of Law.
Thus obedience of law not totally
depends upon the sanction but it is also depends *Object of his Theory
upon conscience of person e.g. Anti-national To bring Homogeneous Legal system in
element doesn’t care about sanction. Also order to achieve the source of Law.
sanction depends upon the acceptance of people,
rationality of society social culture etc e.g. Austin fails to determine the validity of
Dhananjay Chatterji Case 2004 Law, but Kelesen says the validity of Law must
be in Legal systems itself therefore. He is also
*Similarity & dissimilarity between Hindu known as positivist of positivist.
philosophy & Austin. As per his theory the Legal system is
(1) In Hindu philosophy the Dharma is “Normative Legal System” which prescribe &
superior, Govern king & his subject. But in subscribe the regulation of Human behavior in
Austin’s theory king is not under obligation society.
he has absolutely absolute power. Norm
(2) Dharma having source in the Vedas, U It means standard of behavior therefore
pnisidhas. But as per Austin, command of Law as the norms & its Legality must be
sovereign is the source of law i.e. determined. His normative Legal system is
determinate body. Hierarchical i.e. clear-cut order in the Norm.
(3) As per Hindu philosophy king get These norms must be free from all the other
punished, if he committees wrong. But as aspects i.e. it must be pure one.
per Justine king immune from any kind of At the top of the Hierarchical there is
sanction. “Grund Norm” from which other norm gradually
(4) Notion of Rule of Law is basis of Hindu comes down, it is nothing but the “Gradual
philosophy. But Austin to great extend Democratization” e.g. In India the Indian
denied this notion. constitution is Grund Norm From which all the
other Acts, Delegated Legislation & sub-
But even though above criticism this Delegation Legislation gradually democratized.
theory is useful The order presents the fixed position of each
Prof. C. K. Allen: Law in making norm, which can’t change its position from
For a systematic exposition of the method of Hierarchies.
Jurisprudence we will have to turn to Austin. Every Norm derived its validity from all
other higher norms including Grund Norm. See
the following illustration –
The constitution
Parent Statute
Delegated Legislation
Sub – Delegation Legislation

35
 If hierarchic is not in this order then it is Thus Hierarchy of Norm can be
Ultra Virus. He not mentioned the level of obtained only by single & united legal order in
Norms to which any Legal system burden down the given system. The Grundnorm has to be
i.e. not mentioned the end of Hierarchy of securing the obedience by the society therefore
Normative system. efficacy or effectiveness of the total legal order
As Legality of Norm decided on the depends upon minimum effectiveness of the
basis of Higher Norm, but what is about the Grund norm in that legal systems by the society.
Legality of Grund Norm because beyond it there *Madzimbabootos v. Larderburk (Rhodesian
is nothing to this he replied that the Grund Norm case)
is fundamental, Highest & supreme in the Judiciary recognized usurper after 2 years
Hierarchy therefore it is not subject to any therefore what is about rules passed by
scrutiny. Revolutionary regime during these two years
Thus the validity of Grund Norm can’t *State v. Dossa
be challenged, it itself is the basic source of Law Pakistan Supreme Court held that usurper legally
in every Legal system & this Norm is a superior empowered to make laws
Norm. *Jillani v. Punjab
*Jay Lalita Case 2001 Pakisthan Supreme Court overruled above
Supreme Court held that constitution is the decision.
superior to the mandate of people. *Mirhasan v. State
Pakisthan supreme court usurper is illegal &
He said Grund Norm is initial invalid regime.
Hypothesis because some time in Legal system But Revolutionary regime issued an order to
there may or may not exists the Grund Norm but nullify above decision.
as positive theory based on what law is & not *Jaylalita Case 2001
what Law ought to be, then he said Grund Norm Supreme Court held constitution is superior to
is a “Legal fixtion” in order to give the legality mandate of people.
of subsequent norms. Thus from above cases it is clear that
the minimum effectiveness to Grund Norm
*Principles of Kelsen’s pure Theory. shouldn’t secured by society but it is a matter of
(I) The basic aim to reduce chaos & Judiciary.
multiplicity.
This is in order to achieve unity & in *Relation between Grund Norm &
the Legal systems as well as in society. international law.
(II) Legal theory is science & not volition. Kelesen said International Law is the
It is knowledge of what Law is & not supreme Grund Norm in respect to every
what Law ought to be. independent so State therefore the legality of
(III) Law is a normative science. every Legislative system of sovereign state
It prescribes certain standard for act of confirmed only by International Law.
individual behavior in society. E.g. -
(IV) Legal theory as a theory of Norm. 1) Pacta Santa Servanda
Legal theory not concerned with the 2) GATT, WTO, Human Right etc. to
effectualness of Legal Norm because them Municipal Law have to give
Legality or Validity of Norm is the position.
precondition for its existence. 3) Theory of recognition of Municipal law
Austin said sanction is essential elements of gives equal status to all independent
Law in order to get its Legality. sovereign state.
Kelesen said neither such law derives from Thus he achieved the unity of International
essential element of sanction or command in Law & Municipal Legal order, this is based on
order to get legality. fact to give equality to every & all Municipal
Thus Kelesen said Law doesn’t state the Law.
constitute command but it is condition i.e.
validity of norm & the sequence of norm & its Whether International Law is in the
validity on the basis of Higher norm/ including Municipal real sense?
Grund Norm is important. He didn’t ruled out As Kelesen was Monist, therefore
ought from his scheme of Law the ought to be having opinion that as the Municipal Law &
must be legal one. international law is artificial one. Therefore they

36
are same & also there are only duties & not
Rights therefore both private & public laws are
same.
He didn’t made distinguishment between
“Law made” (Legislation) & “Law Applied”
(Judiciary) therefore the rule created will be
valid if there is -
(1) Legally constitute body &
(2) Legally valid procedural followed while
enacting it.

*I. N. Gandhi v. Raj Narayan

J. Ray (descending Judgment) amendment to the
constitution is subject to judicial scrutiny on
basis of the constitution itself.
Today amendment to the constitution
tested on basis of Basic structure i.e. Grund
Norm.
Thus Kelesen’s pure theory of sugeneric
evolution of Grund Norm is refused by supreme
court, the Legislative system can’t sank
democracy & democracy can’t sank Human
Right & couldn’t acquire legality in today’s
world therefore legality & purity of legal system
not depends upon exclusion of values but it
depends upon the inclusions of there values.

37
 MODULE - 05
SOCIOLOGICAL, REALIST AND HISTORICAL SCHOOLS OF LAW

Roscoe pound (1870 –1964) social

contribution through law. The positive law is Duguit said Law is a social phenomenon in
inadequate to meet the changing concept of order to balance address & redress problems in a
society. The need of the society must be fulfilled given society at given point of time.
by the Legal system. The Law has to meet the Why we require social change?
scientific, technical requirements of the society If present situation is not conducive to
because the Law is made for society & not development of an individual in society therefore
society for Law therefore the new concept of social changes are require. It is a matter
sociological school aroused. concerned with striving & not mere surviving
As per this theory law is a tool of the therefore social changes necessary for human
social welfare. The institute of state changed development.
from laissaiz fair to the welfare for progress of This theory based on social reality i.e.
the individual in the society. Therefore practical or pragmatic consideration. So that this
instrument of law used as an instrument for theory always try to give solution to hour to
social welfare. The law is social phenomenon protect the claim and balance them with
therefore it involves numbers of other factors of confliction & competing interests in order to get
sociology. minimum waste. Therefore it is task of law to see
The social jurist like Genning Roscoe law these claim can be balance in a society
pound help to develop this theory. This theory therefore there must be minimum waste because
also called Social Engineering Theory in which we have limited sources.
lawyers helps to construct the society because Thus Law is an instrument of social
every society require restructuring the welfare i.e. minimum friction & minimum waste.
organization, various plethora’s are there like The minimum friction or Defacto claims must be
desire of numbers of wants, but there is vast gap recognized by the Legal system therefore Roscoe
between resources & demands therefore gap pound classified the interest as follow -
fulfilled in such a way that maximum of (I) Individual Interest
fulfillment of desire & minimization of (II) Social interest &
wastages. (III) Public Interest.
Human beings are acquisitive These interests are in the point of view
competitive & self-assertion therefore everyone of individual, society & State. It connotes
wants to acquire & everyone want in competition individual has interest in all these categories
& acquires a plane. This is nothing but therefore individual has interest everywhere. The
fulfillment of own desire therefore these claims, interests are interlinked with each other. Thus in
desires, needs i.e. interest came into conflict. single interest all other interests are involved
Interest means right recognized &
enforced by Law. The interest only Defacto Prof. T. N. Scalan
claims in every society & not Dejure. Individual interest of speech & expression
The social Defacto claims have to fulfill involves –
following requirements. i) Interest of speaker,
i) Assessment of Defacto claim i.e. ii) Interest of audience &
identification of claim. iii) Interest of social.
ii) Define limits within which these claim will
be given legal support Prof. Joseph Razz
iii) What are those Legal precept or concepts The ultimate interest is an individual
e.g. property-possession, ownership. interest either in case of single or collective
iv) Machinery for enforcement of claim. interest, because ultimate beneficiary is
v) Limitations upon the enforcement individual.
machinery i.e. machinery has its own E.g. 1) Launching of satellites,
restrictions. 2) Kameswar Singh case.
These requirements are necessary in This scheme envisaged evolved &
order to balance the conflicting & competing recognized by the sociological jurists
Interest.

38
themselves. In order to balance these there (1) Interest of personality. E.g. 1) Reputation,
interest Roscoe pound gave following solution. privacy, Belief & opinion
(2) Life & Liberty.
(1) Legislative or Judicial solution. (3) Speech & expression.
It has to be reached after careful evaluation (4) Interest in Domestic Relation. E.g. 1)
& valuation of an interests, solution shall be family relation.
just which leads to minimize waste.
E.g. Medical Pregnancy Termination Act— *Ahluwalia Case
Interest of state is important than parents. Parents can sue on behalf of child or kids.
(2) The conflicting & competing interests *Deshaney v. U.S.A.
have to be Harmoniously balanced. Husband & Wife use to bit child at every
The totality of scheme of an interest to be evening therefore neighbor old lady file petition
kept in minimum disturbance to every other on behalf of child. –Interest of an individual can
interest in order to avoid the total be claim by anybody on behalf any individual. 2)
Jeopardizing of any of the interest. Maintenance u/s. 125 of Criminal Procedure
E.g. Minimum Wages Act, ESI (Employers Code (Cr. P. C.), 3) Interest of substance - In
State Insurance) Act relation to property, promises, contract, freedom
Thus at a given point of time sometime of association, continuity in employment. It
jeopardize of single interest is important requires living with human dignity. E.g. - 1)
requirement in order to keep balance in a Asiad case, 2) Land ceiling Act, 3) Bela
balanced position. For this purpose law is the Banarji’s Case -- compensation on acquisition of
instrument of social control & lawyer is an property by state.
engineer to satisfy the balance of an interest.
These three interests are inter-linked some time; (II) Public or State interest
there may be conflict between the interests. The Claims & demands in the point of state
balance between them resolves this. and can claim on behalf of state. U/A 12 - - state
has its own identity, it is juristic person therefore
Prof. Paterson it has also interest. State has two aspects -
Social interest is final yardstick to (1) It is Juristic person.
resolve conflict of interests because social It is politically organized society
interest is important for maintenance of the Duguit - State is a biggest corporation.
civilized society. It can possess property, enter into
Thus what is beneficial to society is contract can sue & can be sued.
only recognized by the Legal system & not the
individual interest. The social interest must able (2) It is guardian of social interest.
to maintain the level of society then only social Doctrine of parents’ patria. E.g. 1) If public
interest could recognize & not the social undertaking sick, then the state steps its
demands. Hence, the social interest, shoe, 2) Bhopal Gas case –file case as
which is above all the interest & other interest, guardian of sufferer.
are subordinate to it. Every interest valuated in But it will amount to trespass in the
the given situation & on basis of that measures social interest.
the particular interest upheld or given primacy,
because ultimate beneficiary is an individual. (III) Social Interest
Prof. Roscoe pound acknowledges the Classified in following -
interest of minority, it required be protecting & (1) Social interest in general social security
enforcing. for maintains civilized structure & level
E.g. Art 29 & 30 of Constitution. of society. The social interest is required.
E.g. 1) peace & order, 2) Public Health &
What interests are to be protected as an interest public order, 3) Security of
of individual? transaction, 4) Safety & security e.g.
These are as follows - U/A 25 freedom of religion limited
(I) Individual Interest on basis of public order, peace, & health
Individual interests are claim on behalf of & morality of society.
individual. There are following categories of (2) Social interest in security of social
an individual interest. institution.
E.g. 1) family, religion, marriage

39
 *Sarla Mudgal Case survey & determining what type of Law required
Kuldeep J. – conversion for marriage & again in given situation.
conversion will disturb the whole society in Thus sociological & Law comes together in this
India. E.g. Khatoonissa case, Shahbanoo case. stage.
2) If election process used illegally then
it violets political & social interest. E.g. 1) III) 3rd stage
Balasaheb Thakre’s case 2) Narsimharao Till 1965 it was not reached, but it was
case rapprochement between sociological
(3) Social Interest in General morals. jurisprudence & Natural Law theory
The values sentiments, religious & But as we know prof finnis common
ethical principles must be protected. goods, Prof. H.L. A. Hart, as Semi-sociologist
E.g. 1) living without marriage socially IPV – these precepts, has to be perceive only in
not allowed, 2) Devdasi system, sati system human society therefore we could say how 3rd
forbidden, 3) Public of schedicious matter e.g. stage reached by rapprochement between
Anara’s case, 4) Cases 1) satyam shivam sociological Jurisprudence & natural law theory.
suderam picture case, 5) Picture film like water,
fire , 6) painting of Goddess Saraswati by F.M. *CRITICISMS AGAINST THIS THEORY.
Hussein, 7) Madhu sapre & Milind Soman 1) Term engineering means equate society to
picture of Advertisement. a factory like mechanism.
2) Dr. Allen – He confines the interpretation
(4) Social Interest in conservation of social of wants & desire only material welfare of
Resources. individual life, completely ignoring the
1) Natural Resources e.g. forest personal freedom which are equally
conservation pollution Acts, U/a. 51A – important for a happy social living.
Duty to protect Environment, 3) Law develops & evolves as the need of
2) Human Resources e.g. S.C’s or S.T.’s, society & law simply recognizes or
approves it. This dynamic feature of Law
(5) Social interest in General Progress, undermined due to great emphasis on
Economical, Political & Cultural progress. engineering.
4) Concept of an interest not much
Economical – free trade, commerce &
significance in a pluralistic society. E.g.
Intercourse, Industry, trade mark ,
linguistic, ethnic, & religions minorities
Patent , GATT, WTO.
having diverse interests.
Political – freedom of Association.
5) W. Friedman – Classification of an
Cultural - U/A29 & 30.
interest is not useful. E.g. 1) Right to
property subject to increasing limitation, 2)
(6) Social interest in individuals Life. In totalitarian system, Personal Interests
suppress or severally restricted in favor of
As society comprises of individual state.
therefore progress & development of individual
resulted into development of society for e.g.
*Contribution of Roscoe Pound
right to education u/a. 21A His contribution to jurisprudence is
*Mohini Jain case great while propounding idea of social
*Unnikrishnan case
engineering he has not forgotten the task of
Prof. C. Sesnic – This theory went out changing
maintaining of balance. He has taken a middle
i.e. developed in 3 stages way for avoiding all exaggeration but his
I) 1st Stage approach has been experimental.
Roscoe Pound & his followers – Law is His emphasis on studying the actual
an instrument of social welfare the task of working of legal rules in the society, the
lawyers to see every section of society gets their
importance of socio-legal research for good law
requirement & claim.
making & pointing out the great constructive fun
which the law is to perform are very valuable
II) 2nd stage contribution to jurisprudence.
Lawyers are not merely layers. They His influence on modern legal thought
take helps of sociological methods e.g. to carry is also great & it is under the light of his theory

40
among others things, that the subject is being John William Salmond (1872-1924)
studied. All law is not made by Legislature
much of it is made by the courts, if the courts do
*Jural Postulates of Roscoe Pound not recognize rule. It is not a rule of law.
In order to evaluate the conflicting Therefore to ascertain the nature of law we must
interests pound suggested that every society has go to the courts & not the legislature.
certain basic assumption upon which it’s
ordering rests. These assumptions are nothing *Definition of Law
but Jural postulates. Therefore every individual The body of principle recognized &
in civilized society must be able to take it for applied by the state in the administration of
granted that - justice, as those rules recognized and acted on by
1. He can appropriate for his own use what he the courts of Justice.
has created by his own Labour, and what he Thus as per him the courts have to
has acquired under the existing economical continually interpret the law & plug holes &
order. gaps left by the statute.
*Thabo Meli v. R 1954
2. That others will act with due care & will not If actual killing not intentional . In this case court
cast upon him an unreasonable risk of develop further law of murder by plugging this
injury. gap left by the statute.

3. That others will not commit any intentional *AMERICAN REALISM

aggression upon. Karl Llewellyn (1893-1962)
He considers law as a means to social
4. That the people with whom he deals will ends, & since society is changing law must
carry out their undertaking & act in good change accordingly. Realism involves the
faith. acceptance of a law in flux (change) and a
society, which changes faster than the law.
These postulates 3 he added more lately He believed that law was a means to
in 1942 as follow - social ends. The social ends were (a) to assist the
1) That he will have security as a jobholder. survival of society & (b) aid in the search. The
2) That society will bear the risk of unforeseen law should therefore be examined in terms of
misfortunes such as disablement as a whole. purpose & effect.
3) That society will bear the burden of
supporting him when he becomes aged. Why was the law made? – Purpose.
What consequences will follow due to the law? –
LEGAL REALISM Effect.
Therefore as per him, Judges when
This concept propounded by John makes a decision are guided by a situation sense
Salmond, Jerome Frank, Karl Llewllyne, Justice i.e. circumstances of the case. Hence Legal
Benjamin Cardozo. Realism is the tendency to be system comprises not only laws enacted by
concerned with the act rather than with ideas & Legislature or Delegated Legislation or other, but
feeling. it also includes law declared by the courts. The
Realism is the doctrine that law has precedent not only binding on the parties but also
reality apart from the perception. on the subordinate courts. The value of precedent
The word real is intended to point to the as a Law is very much significance to decide
contrast between law as it seems & law as in its future cases.
actual working. Realism makes the distinction Thus according to Realists, the Law is
between law in books & law in action. As per that which judiciary declared therefore law
realists, law consists in a collection of decisions becomes a law only on declaration by courts.
rather than a body of Rules i.e. realism look on The ideology, philosophy of the Judges plays
law as the expression of the will of the state important role along with the existing laws while
through the medium of the courts. E.g. Law is making the decision.
like electric wires, without the switch ‘ON’ there E.g. -
is nothing. It is the Judge that switches ‘ON’ the 1) Maneka Gandhi case – J. Bhagwati – Due
law. process

41
 2) Banglore Water Supply case – J. Krishna
Iyer – Definition of Industry expanded *Judicial Behavior
3) A.D.M. Jabalpure case – J. Khanna – J. Schoolbert – coined this term the Judicial
concept of Human Rights elaborated by J behavior is predictable i.e. ideology &
Khanna. philosophy reflected on the decisions.
4) Asiad Case – J. Bhagwati – wage in need E.g. some time it is referred as ‘Breakfast
based. Theory’
5) Keshvanand Bharati case – J. Bhagwati – *MERITS OF LEGAL REALISM
Doctrine of Basic structure 1) Not concerned with any ideology or
6) Vishaka case – J. Das – guidelines to theory .
protect workingwomen’s from sexual 2) Pointed out certainty of law is a myth.
harassments. 3) Contributed towards the Liberation of
Thus task of law as an investment is to Judges from unduly rigid legal concepts,
survive the group peaceably & provide justice & 4) Recognize importance of doctrine of
richer the life. precedent in addition to rules or Law.
If sentiments & emotions of the Judges 5) Law is a living organism as society
reflected in the decision then it is against Law. – changes law change.
Doctrine of Breakfast. 6) Law is a mean to a social end.
* Bhauri Devi case 7) Gives insight into judicial processes.
Supreme Court – How it is possible, that tribal E.g. various factors influencing the
women raped by higher status or caste person? mind of Judges – Bias, prejudices,
Two way case can be decide. idiosyncrasies, upbringing, education
(I) Formal – In this, there is slavish approach social background etc.
of judge to adopt the precedent in their 8) Stipulated empirical study i.e. study
decision, they merely render the law, as based on experience or observation, in
laid down in the precedent. the field of Jurisprudence.
(II) Grand – Judge does not follow the 9) It combined intellectual positivism &
slavish approach to abide by precedent the social approach i.e. while studies
Law take into account other factors
He creates own law on the basis of his also.
ideology, philosophy or give new different 10) Legal realists are called skeptics of
dynamic interpretation to law. Therefore it is traditional conceptualism. & Doctrine
judicial activism or judicial creativity. This i.e. they expect Healthy framework of
dilute the rigidity of precedent & makes it mind of Judges & Lawyers.
flexible e.g. 1) dilution of concept of Locus
Standi - Public Interest Litigation, 2) Maneka’s *Criticism
case , 3) Vishaka case etc. 1) Create confusion in minds of people
But some time it may leads to side whether statute law or Judges made law is
tracking the law itself & play the role of real law?
Legislature. Therefore, in order to avoid this it is 2) Judges law some times not law because his
advised that Judges has to take helps of – decision may be overruled.
1) Professors, 3) Some time on the part of Judges – Bias,
2) Teachers, emotions, haunches etc.
3) Law students,
4) Lawyers, But C. K. Allen
5) Opinions of eminent persons or Judges & 1) Judges are also men & not law not only
6) Read the reported judgments or Reports of depends upon personal vagaries &
law commissions. Idiosyncrasies of Judges.
This will give cherished flavor to his 2) There is appeal in such cases.
ideology or thoughts while deciding the case.
3) Curzon – Today Laws are so much
Prof. Yentema developed therefore there is no place to
He reassesses the American Legal Realism. He judges. E.g. Arbitration conciliation.
included sociological jurisprudence init, to
balance the conflicting & competing interests &
provide solution to judiciary & Legislation.

42
 4) H.L.A. Hart – Judges has the last word it ‘artificial’ lifeless mechanical device but the
doesn’t mean that there is no law. E.g. Rule origin of law lies in the popular spirit of the
of LBW in cricket. people which is known as volksgeist.

5) Realist argument about uncertainty of *Criticism against Savigny’s theory

language therefore Judges has to interpret it 1) Inconsistency in the theory – On one hand
in proper way is not acceptable in Toto side he said origin of law is in the popular
because it is a generalization of an consciousness & at other hand he argued
expectable situation. that some of the principle of Roman Law
were of universal application.
6) Legal Realism is nothing but a modified 2) Volksgeist not the exclusive source of Law.
version of Austin’s theory therefore instead Some time alien legal systems are
of sovereign command it is a command of successfully transplanted in another country.
judges. E.g. IPC Evidence Act, Transfer of Property
Act Criminal Procedure code., Civil
7) GoodHart – The judges’ attitude towards a Procedure code. Contract Act enacted by
Legal rule is that it is a guide or mandate British Rules on the basis of their experience
for action because prediction is from the in U.K.
standpoint or perspective of the observer. Constitution adopted important concept
from other constitution in the world e.g.
8) Cardozo – it would be mistake on part of a Fundamental Right – U.S.A., Directive
judge to impose upon whole community Principles of State policy – Irish, Trade &
his own belief or conduct because judge is Commerce – Australia.
under a duty to conform to the accepted 3) Legislation sub-ordinate to custom –his
standard of community. view that customs are based on popular
consciousness of community as a whole is
HISTORICAL SCHOOL OF LAW not true because many customs originated
only for the convenience of a powerful
Propounded by Savigny & Maine majority to rule minority therefore in order
This school developed against the to remove such bad custom which are not in
positive Law. He propounded his theory as tune with freedom & Human Right law must
follow - be able to change them. E.g. Devdasi, Sati
(i) Law is a matter of unconscious & organic system, Untouchability that is stigma on
growth therefore law is found & not Humanity.
made.
(ii) Law is not universal in its nature. Sir Henry Maine (1822 –1885) Propounded
E.g. Language, it varies with people & Historic – comparative school
age. He showed contrast between Hindu, &
(iii) Custom not only precedes Legislation but Roman law, which shows fundamental
it is superior to it. Therefore law should distinction between Static & Progressive society.
always conform to the popular
consciousness. Static Society—Which doesn’t developed
(iv) As law grows into complexity. Lawyers & beyond particular limit i.e. it follows limit i.e. it
Jurists are more important than legislature follows old traditions. The static society
in the process of development of a legal governed by dictators under the name of God/
system. Devine Law. E.g. Taliban in Affaganisthan,
Ayodhya crises in India.
Prof. C.K. Allen
Historical jurisprudence is cibitas ibi lex Progressive society - Which developed beyond
ubi sociaties ibi – jus means where is a society particular stage i.e. they change with demand of
there is a law in a wider sense. changing time. The Progressive society governed
As Savigny volksgeist is a source of Law. by popular sovereign authority by the democratic
It means a law made without taking into & Republic form of Government in tune with the
consideration the past history culture & tradition demand of changing time. E.g. Hindu Marriage
of community is likely to create more confusion Act, Protection of Civil Rights Act.
than solving the problem because law is not an

43
 In world major societies are static one
therefore called as status & Progressive societies
–contract. Therefore always society tries to
transfer from status to contract. E.g.
Untouchability.
Thus his main emphasis upon changing
the society from status to contract. This concept
theoretically and logically applicable in
“freedom of Labours & Industrial contract.”
Where collective bargain & trade unionism is
important therefore status demolition & contract
get importance. It provides security, welfare in
order to avoid exploitation, slaveries of
employees or labour in developing world.
But in present context the contract
reversed into status e.g. Minimum Wages Act,
u/s. 25 ‘contracting out ‘ i.e. –No individual can
enter into contract with employers to work below
minimum wages.
Thus an employee seizes freedom &
termed into status.
But this reversal is for certain values i.e.
Collective welfare.

*Maine’s contribution to Historical

Jurisprudence
He improved Savigny’s theory by
explaining inter relationship between community
& law and also recognized the role of legal
fictions, equity & Legislation in the evolution of
Law.
He studied the Legal system of different
communities for his comparative research on
evolution & development of law.
Later jurist were greatly inspired by his
theory and his comparative researches e.g.
Pollock, Vinogradoff.

44
 MODULE - 06
CRITICAL LEGAL STUDIES

Critical Legal studies enterprise and its impact on women's lives.

Robert Anger & Dunkain Kennedy Feminist jurisprudence focuses on the way in
developed this critical Legal studies movement. which law has been structured that denies
This movement initiated on political & women's experiences and needs. It is basically
social aspects, and helps to expand American concerned with an analysis of the law and legal
realism due to emergence of Industrial & system intended to show that how existing law is
Economical relation. This movement gives structured to promote the interests of males and
emphasis on Liberalism to Legal system along to exclude females. In this effort feminist
with Marxism. They try to make balance jurisprudence analyses how patriarchal
between Liberalism & Marxism. domination and its assumptions in the mind of
As per this movement law is politics, it law-makers have shaped the content of laws in
doesn’t exist independently of any kind of different areas of law including trust law, family
ideology in a given society therefore politics law, property law, contract, criminal law
require enforcing Law in a given society. constitutional law etc. Feminist jurisprudence
E.g. - claims that patriarchy in intended in the legal
1) Shahbanoo Case system and all its workings, is an unacceptable
2) Women’s Reservation Bill, state of affairs. Feminist also have gone to the
3) Mandal Commission Case extent of challenging conventional ideals of
4) Appointment of Governors. judicial decision making. According to them
Judges have biases towards female and not
The Legal reality is not product of Nature rather working neutral, impartial and objective manner.
it is socially constructed on therefore life in There are claims made by the Feminist
society is less organized & structured therefore it Jurisprudence.
is a job of Legal systems to organize & structure The feminist legal theory is expressly
the society according to certain rights. descriptive as well as implicitly normative. In
this sense, feminist jurisprudence is a normative
Prof Robert Anger like traditional theories of jurisprudence.
He gives guidelines & suggestion Feminist jurisprudence challenges basic legal
regarding, How society organized & structured? categories and concepts rather than analyzing
1. Immunity Rights – These are absolute them as given.
claims. E.g. Right to Life & Liberty, Right to While some scholars doubt whether
property, Freedom to speech & expression. there exists a school of legal thought deserving
2. Destabilization Rights – Inability of an the title feminist jurisprudence, there are others
individual to destroy practices in society e.g. who consider feminist jurisprudence as
Untouchability, Devdasi System, Sati system, representing the most important modern
Dowry system. development in the analysis of law.
3. Market Rights –Rights which gives a
condition & provisional claim to divisible (B) Influences on feminist jurisprudence
portion of social capital e.g. Bonus to Employee. Feminist jurisprudence has been
4. Solidarity Rights – Rights that are leads to inspired and influenced by the ideas, approaches
mutual understanding & communal harmony. and methods adopted by number of other
approaches to law like Realist, Marxist theories,
I. FEMINIST JURISPRUDENCE Critical legal studies and post-modernist legal
(A) Meaning of feminist jurisprudence theory. There 3Je many similarities between the
Feminist jurisprudence is the study of approaches of feminist jurisprudence and CLS.
the construction and workings of the law from They include condemnation of injustice,
perspectives of women and women's lives. The skepticism as to the alleged neutrality of law, the
study views law as a theoretical and practical purported separation of law from politics, and
the role that law had played conferring

legitimacy on a society’s existing institutions and
. Dr. Vijay Ghormade: Text Book on social ordering. Both, feminist jurisprudence and
Jurisprudence & Legal Theory, Hind Law CLS share a common intention to challenge the
Publications, Pune, 2008 pp. 219- 226

45
existing distribution of power, but feminist
jurisprudence does not travel the whole ay along (2) Law does not acknowledge the needs of
CLS, because feminists allege that CLS presents women:
oppression and discrimination in the abstract The law as currently constructed does
mostly from a male perspective, and it looks d not acknowledge or respond to the needs of
upon those problems from an academic point of women and therefore must be changed.
view. Feminism, on the other hand, looks Theoretically feminists are concerned with how
upwards from the position of the oppressed to understand the law itself, its proper scope and
women, and is more concrete and specific in its legitimacy. Scholars raised these questions in the
approach. context of the feminist jurisprudence. These
critical issues can not be answered easily by
(C) Main theme of feminist jurisprudence traditional legal theory. What is the proper moral
Feminist jurisprudence revolves around foundation of the law? The answer depends on
a number of questions and features diverse the moral principles of the dominant structure of
approaches. However, following two the society. What is the meaning of rule of law?
characteristics are seen in the major debates in The answer is important in the light of obedience
current feminist jurisprudence, which can be to law which has been an important part of the
called the central, them of feminist history of subjugation. What is the meaning of
jurisprudence: equality? It is difficult to answer especially when
there is diversity in the world. What is the
(1) Responding to Liberalism and Questions meaning of harm? The answer is subject to the
of Perspective: fact that women are subordinated to men in all
The Anglo-American legal tradition is over the world and also subjected to certain
built on liberalism and its tenets. Feminist kinds of violence by men. How can adjudication
jurisprudence responded to liberalism by raising of disputes between men and women be properly
some questions about their assumptions. and fairly resolved when there is no equality in
Feminist jurisprudence is critical to the the parties? What is the meaning of property in
current dominant understanding of legal thought the light of the ideology which categorized
- positivism and natural law philosophy which is women as property? Under the patriarchal
usually identified with the liberal Anglo- structures of legal system, how far law is an
American tradition1. Feminists responded to both appropriate mode for the resolution of dispute.
these tradition-positivists on the one hand, and Thus, the main concern of feminist
natural law theorists on the other by raising theory is the treatment of woman by the legal
questions regarding their assumptions about the system, and the perception or lack of perception
law, including: of women's experiences and needs in law. In
(a) law is objective and thus must have other words, it is the extension of the feminist
recourse to objective rules or perspective to an analysis and critique of law.
understandings at some level, In India, feminist views patriarchy as
(b) law is impartial, hence it is not to be the main reason for the subordination of women.
tainted by the personal experience of Patriarchy is the ordering of society under which
any of its practitioners, particularly standards-political, economic, legal, social-are
judges, set by and fixed in the interests of men. In such a
(c) law apply equally as a formal concept society men are more highly valued than women.
rather than a substantive one, Naturally, the political structure of that society
(d) law is certain, and that the goal of also values men more than women. In a
lawmaking and legal decision-making is patriarchal society, experiences and perspectives
to gain certainty, of males are the reference points in relation to
(e) legal justice can be achieved by which e law is fixed. Even when laws are
following proper procedures. enacted for women, it is men’s understanding of
Each of these assumptions has been a women, their nature, capacities, and experiences
significant feature of the liberal traction of legal that have informed the law. In short, law sees
understanding. Feminist jurisprudence debated women through the male eye. An example from
and contested these traditional legal thought. criminal law may illustrate this point. In the
definition of rape given in the Indian Penal
1
. In the modern period, this tradition is Code, an essential ingredient is the penetration of
represented by Hart and Dworkin the vagina by the penis. This is the men’s

46
definition of sex, rather than the women’s system will not be free from gender bias until
experience of sexual violation. In Sakshi v Union women's lives are taken by law as seriously as
of India2 the petitioners argued that according to men’s. Feminist jurisprudence may, therefore, be
modern feminist legal theory and jurisprudence, described as an approach which challenges the
rape is looked at as an experience of humiliation, male-centric approach of legal theory and
degradation and violation, rather than an practice, and which seeks to incorporate feminist
outdated notion of penile / vaginal penetration. It reasoning into law, and legal scholarship.
was, therefore, contented that the meaning of
rape should be broadly construed to include all (D) Different approaches of feminist
forms of non-consensual penetration. The jurisprudence
Supreme Court took the view that the definition There are different strands of feminism
of rape cannot be altered by judicial which have influenced feminist jurisprudence.
interpretation to include all forms of penetration.
The court observed that an exercise to alter the 1. Liberal Feminist Theory
definition of rape by the process of judicial Liberal feminism considers liberalism
interpretation, when there is no ambiguity in the as the appropriate weapon to fight improvements
provisions of the enactment, ‘is bound to result in the position of women. In support of their
in good deal of chaos and confusion, and will not argument they cite the examples of social
be in the interest of society at large. Again, when legislation passed by the British Parliament, and
the law accepts consent of woman as a defence conclude that liberalism had claimed and secured
in rape, what actually accepted is the male view rights for women.
of whether the woman consented. The
controversial decision of the Supreme Court of 2. Radical Feminist Theory
India in Mathura case3 is a typical example of Radical feminism focuses more on the
such a view. Here, a poor illiterate Dalit girl was issues that affect women’s private lives. Thus,
raped by Police constables in the police station. they have raised such issues as marital rape,
The Supreme Court accepted the contention of failure of the legal system to recognise the
the accused that the girl has consented to sexual economic value of the contribution of women in
intercourse, because there were no clear signs of child rearing and housework, harassment, and
resistance and external injuries on her body. The pornography. According to radical feminists,
accused were acquitted. The court obviously abortion is not infanticide, but an act of self-
failed to look at the situation from the victim’s - defence by a woman against the invasion of the
perspective a poor illiterate Dalit girl in police 'other' in the shape of the foetus. They recognise
custody, unable both psychologically and the differences between men and women, and
physically to resist the sexual assault on her. ask as to what justification exists for any such
Silent submission due helplessness, in an differences being treated as a reason for women
atmosphere of domination and fear, was to be disadvantaged and discriminated?
interpreted by the court as consent.
The norm of family in a patriarchal Debate between Radical and Liberalism
society as a household headed by a man with his There are some areas where their views
wife and children wholly dependent on him, is common. For instance, radical feminism
accepted by law also. Other forms of family, recognises the importance of rights-oriented
especially those without a man, are seen as strategies advocated by liberal feminism as
abnormal. Feminist jurisprudence challenges the empowering women in some contexts.
claim by those in power that the law is neutral, In many respect however.
detached, objective, and disinterested. Radical feminism is different from
Enumerating instances of disadvantages and liberalism. Radicals consider liberalism as
discriminations that women had to fight against - inadequate to meet women's needs. While the
as in the case of inheritance and property rights main concern of liberal feminism is rights,
to access to education and employment, right to radical feminism is not concerned with rights in
vote etc-feminist jurisprudence believes that the the abstract sense, but with the fact of
domination of women by men. The basic
2
. (1996) 6 SCC 591; 1999 SCC (Cr. L. J.) difference between these two kinds of feminism
1159 makes their approach to law different. Liberal
3
. (1979) 2 SCC 143 feminism, by and large, accepts the law and its
reasoning process, but radical feminism rejects

47
this approach, since the reasoning structure of for not in terms of rights, but in terms of seeking
law corresponds with the patterns of to safeguard relationships. They do not look for
socialization, experience and values of a rigid rules, but are willing to adapt a different
particular group of privileged, educated men. solution for each problem seeking to safeguard
The language of neutrality of law is seen by relationships, revealing a concern for both sides.
radical feminism as a device to silence women, The cultural feminists call this aspect as ethics of
and submerge a critical awareness of institutional care. Extending this approach to law, cultural
power and domination. Radical feminism seeks feminists argue that the refusal of the legal
to demystify the neutrality of law, and to make system to protect these values has weakened the
the law comprehend that women's definitions community as it has impoverished women's life.
have been excluded and marginalized. What is needed, they continue, is a restructuring
Liberalism argues that the liberal of law and society to accommodate the values
tradition offers much that can be shaped to fit nurturing, caring and loving that are traditionally
feminist hands and should be retained for all that associated with women.
it offers. These feminists approach jurisprudence
with an eye to what needs to be changed within Difference between Cultural and Radical or
the system that already exists. Their work, then, Liberalism
is to gain entry into that system and use its own Cultural feministic thoughts are
tools to construct a legal system which prevents different from those of liberal and radical
the inequities of patriarchy from affecting feminism. While liberal feminism seeks women
justice. as mainly confined to the private sphere and
Radical feminists find the traditional radical feminism sees her as man’s sexual object,
system as either bankrupt or so problematic that cultural feminism sees her as caring and
it cannot be reshaped. According to this connected to others. According to radical
approach, the corruption of the legal tradition by feminists, pregnancy and intercourse imply a
patriarchy is thought to be too deeply embedded violation of women's privacy, integrity and life.
to allow for any significant adjustments to the However, cultural feminists see pregnancy, child
problems that women face. Feminists using is birth and child rearing as matters of celebration,
approach tend to argue that the legal system must not matters of dread and despair.
be abandoned. They argue that liberal legal
concepts, categories and processes must be 4. Post-modernist Feminism:
rejected, and new ones put in place which can be Post-modernism is also an influential
free from the biases of the current system. Their theory. Post-modern feminism rejects equality,
mission is to craft the transformations that are and views it as 'a construct that must be
necessary in legal theory and practice and to reconstructed'. The idea of a woman’s point of
create a new legal system that can provide a view, which appears in feminist literature, is not
more equitable justice. acceptable t postmodern feminists because they
consider it as a fiction, which, in practice, merely
3. Cultural Feminist Theory serves to bind the individual to her identity.
This is another influential school of Practical solutions to concrete legal situations
feminism is known as cultural feminism. The involving women are required, rather than
basic assumptions of this theory are different abstract notions of the nature of law. Post-
from those of liberal and radical feminism. The modern feminism believes that arguments with
cultural feminism sees woman as caring and the upholders of a male dominated jurisprudence
connected to others. A cultural feminist does not on terms of its own choosing can never be to the
denounce pregnancy, child birth and child advantage of women as a group.
rearing is rather treated as matters of celebration.
In other words, women have a sense 5. Sameness v. Difference Debate:
connectedness to others, and to life. This attitude Under this debate the central concern
is explained with an illustrative reference to for feminists is to understand the role of
dispute resolution. If males are asked to resolve a difference and how women’s needs must be
dispute, they treat individuals as autonomous figured before the law. Sameness feminists argue
units and in any dispute they look for a rule that - that to emphasize the differences between men
covers an issue, to see what right each side and women is to weaken women’s abilities to
possesses. In other words, the follow an ethics of gain access to the rights and protections that men
rights. Females, on the other hand, seek solution have enjoyed. Their concern is that it is women’s

48
difference that has been used to keep women experience of the un-empowered
from enjoying a legal status equal to men’s. (feminist practical reasoning); and
Consequently, they see difference as a concept (c) An exploration of the collective
that must be de-emphasized. Sameness feminists experience of women through a sharing
work to highlight the ways in which women can of individual experiences
be seen as the same as men, entitled to the same (consciousness raising).
rights, protections, and privileges. Upon these basic elements feminist
Difference feminists argue that the legal theory seeks to articulate women's
differences between men and women, as well as perspective, and thereby empower women in the
other types of difference such as race, age, and future development of law.
sexual orientation, are significant. These The two characterizations of the debate
significant differences must be taken into about what perspective is best for understanding
account by the law in order for justice and equity the problems of the law do share some features.
to be achieved. What has been good law for men Those who argue a sameness position are often
cannot simply be adopted by women, because thought to fit, to some degree, with the reformist
women are not in fact the same as men. Women view. Difference feminists are seen as sharing
have different needs which require different legal much with radicals. The parallel between the two
remedies. The law must be made to recognize characterizations is that both argues over how
differences that are relevant to women's lives, much, if any, of the current legal system can and
status and possibilities. must be preserved and put to use in the service of
feminist concerns. The two characterizations are
(E) Common characteristics of different not the same, but the important parallel between
schools of feminist jurisprudence them allows for some generalization regarding
Feminism, under whatever label, shares the ways in which each is likely to respond to
a common aim-the betterment of women. The particular theoretical and substantive issues.
question is how to achieve this aim. All feminists From these perspectives, feminist jurisprudence
continue to raise questions which are designed to emphasizes two kinds of question: the theoretical
identify the gender implications of rules and and the substantive, in which feminist
practices which-might otherwise appear to be jurisprudence is interested.
neutral or objective. Feminist jurisprudence, in
particular, examines how the law fails to take II. Race Theory
into account the experiences and values that
seem more typical of women than men, or how Critical race theories combine
existing legal standards and concepts might progressive political struggles for racial justice
disadvantage women. It also tries to expose those with critiques of the conventional legal and
features of the legal system which discriminate scholarly norms which are themselves viewed as
against or are disadvantageous to women, the part of the illegitimate hierarchies that need to be
manner in which they operate, and to suggest changed. Scholars, most of whom are themselves
corrective measures. What seems to emerge is an persons of color, challenge the ways that race
approach which integrates the ethics of rights and racial power are constructed by law and
with the ethics of care. Change has not only culture. One key focus of critical race theorists is
suggested in the content of laws, but also in the a regime of white supremacy and privilege
institutions of society. The demand for more maintained despite the rule of law and the
representation women in the judiciary and law constitutional guarantee of equal protection of
enforcement machinery and for reservation of the laws. Agreeing with critical theorists and
seats in democratic institutions, including many feminists that law itself is not a neutral
legislatures, must be seen and under~100d in this tool but instead part of the problem, critical race
perspective. Katherine Bartlect identifies the scholars identify inadequacies of conventional
following three basic 3iements which civil rights litigation. Critical race theorists
characterize feminist legal theory: nonetheless fault critical legal scholars as failing
(a) The extent of the presence and to develop much to attract people of color and
recognition of women's experience in for neglecting the transformative potential of
law (‘women question’); rights discourse in social movements, regardless
(b) A reasoning which proceeds from of the internal incoherence or indeterminacy of
context and value difference and the rights themselves.

49
 Critical race theorists thus try to revolutionary or more radical approaches
combine pragmatist and utopian visions; they to questions of law at best "interpretations"
draw upon a variety of critical strategies to worth considering but performatively limited. As
expose how law constructs race to disadvantage a consequence, the form of critical discussions of
persons of color while joining larger struggles race that emerges [sic} in the Critical Legal
for social transformation and counter- Studies movement is usually limited by the
mobilization against right-wing retrenchment in impact of juridical conceptions of how race will
struggles for racial justice. be negotiated in the sphere of litigation and
Not a set of abstract principles but legislation. How about race in civil and often not
instead a collection of people struggling inside so civil society?
and outside legal scholarship, critical race The critical treatment of the concept of
theorists are engaged in building a movement to race and especially the impact of racism in the
eliminate racial oppression, and other forms of modern world has pre-dated the Critical Legal
group-based oppression. The scholars pursue Studies approach well more than a century. Its
individual routes, methods, and ideas. history is isomorphic with the development of
Nonetheless, they converge around the belief that Africana thought, which began in the eighteenth
racism is endemic, not aberrational, in American century with, ironically, critical efforts to render
society; that liberal legal ideals of neutrality and slavery illegal. Although the African dimension
color-blindness have replicated rather than of Africana thought preceded the eighteenth
undone racism; that analysis should be informed century, the diasporic reality created by
by personal experience and contextual, historical conquest, colonization, and slavery created the
studies; and that pragmatic and eclectic strategies conditions for the discourse on black humanity
should be pursued in the struggle for racial and that has been a main feature of thought among
social justice. the African diaspora. That discourse can be
Critical Race Theory is strongly traced back to the writings of Wilhelm Amo and
associated with Critical Legal Studies—an Quobno Cugoano where,especially in Cugoano’s
approach to American jurisprudence advanced work, a philosophical anthropology of freedom
by a group of progressive, often liberal and is advanced, and stands as the groundwork for
sometimes Marxist jurists in the 1980s and the nearly all subsequent critical discussions of race
present decade. The Critical Legal Studies group, and racial oppression.
of whom the most prominent associates Subsequent discussions emerged in the
are Patricia Williams, Richard Delgado, nineteenth century in the work of nearly all of
Kimberlé Crenshaw, and Derrick Bell, are most that century’s central figures in Africana
peculiarly marked by their utilization of thought: David Walker, Maria Stewart, Martin
developments in postmodern post structural Delany, Frederick Douglass, Alexander
scholarship, especially the focus on "subaltern" Crummell, Edward Blyden, Anna Julia Cooper,
or "marginalized" communities and the use of Rufus Lewis Perry, and W.E.B. Du Bois.
alternative methodology in the expression of Although freedom was the leitmotif of their
theoretical work, most notably their use of writings, quite often they found themselves
"narratives" and other literary techniques. straddling questions not only regarding the
A constraint on the Critical Legal freedom they sought, but also the identification
Studies group is the focus on law. Quite often, of the bearers of the oppression they sought to
the presumption of their work is that strategies of alleviate. The liberation of "blacks," "Negroes,"
recognition—powerfully evoking, for instance, or "nègres" was complicated by cultural
an unemployed Latina or black mother’s differences between many sets of peoples
confrontation with the obstacles posed by the designated by these terms and the simultaneous
legal system and government bureaucracies, or epistemological leakages in the developing
the situation of a person of color facing juries "sciences of man." We could call this
and other facets of the criminal justice system— complication the identity question. It addresses
will have an impact on the practice or the question, "What or who are racialized
implementation of justice within the systems of people?" or, "What does it mean for a people to
laws available. In effect, the structure of be racialized?" or, simply, "What is race?" That
interpretive legal argumentation permits century ended with a body of writings that can
criticisms of the system only to the extent to perhaps be considered, in spite of their
which the criticisms call for, at best, systemic limitations, the first critical work that focuses on
adjustment. Such an approach renders the concept of race, namely, Rufus Lewis Perry’s

50
recognition that there is an ontological humanity of human subjects in sight. So the
dimension to race discourses,2 and W.E.B. Du legacy is this. We must study even dehumanized
Bois’ reflections on racial conservation and the human subjects in a humanistic way in order to
problems involved in studying racialized people. recognize the dehumanizing practices that
The more influential of the two, however, was besiege them. The importance of such work for
Du Bois. those who focus on policy is, then, obvious.
Critical race theory has gained much Critical work burgeoned throughout the
from Du Bois. It was Du Bois who formulated, twentieth century, the century marked by Du
for instance, the distinction between identity and Bois’ famous admonition about the color line. It
policy (liberation). In "Conservation of the is in this century that the most prominent other
Races" (1897), Du Bois struggled through the strain of critical race theory emerged, through
difficulty of using biological criteria for group the radical critical work of Frantz Fanon. Fanon
classification of differences in the human announced, in Black Skin, White Masks (1952),
species. Much of what he says in the essay is the constructivity of racial formation.4 In
archaic today and downright false. But of addition, he brought into focus the tension
importance is his identification of the need for a between structural identities and lived identities
policy to protect certain groups from the and the tension between constitutional theories
genocidal onslaught of American and European (the organism) and raw environmental appeals.
imperialism. We should bear in mind, when we The mediating forces, he argued, are sociogenic
read Du Bois’s essay today, that the indigenous forces, forces that are "real" but subject, always,
populations of the United States were reduced to to the dictates of human intervention or agency.
four percent of the original numbers in little These forces were all examined after Fanon
more than a century. Du Bois had every reason declared that he was not going to concern
to believe—given the rhetoric and realities of himself with problems of method but instead
Manifest Destiny—that not only black with problems of "failure," problems where the
populations in the New World but also such assumptions and presumptions of the social
populations in Africa faced a similar fate. His system and its modes of rationalization break
essay challenged the intellectual community of down. In effect, Fanon’s response to the status of
color to take action against such a calamity. the studier was to admit prejudice at the outset,
Those of us today who are very critical of Du which required an exploration of the failures that
Bois and his contemporaries’ errors should emerge both from prejudice itself, and from a
wonder what our present may have been like had failure to admit prejudice. Later, in an essay
they not built institutions to combat the racist entitled, "Racism and Culture,"5 Fanon explored
policies of the U.S. government and the the complications raised by cultural normativity.
European governments. In order to prevent The pervasiveness of culture offered a degree of
"racial" genocide, however, Du Bois had to "rationality" to racist thinking. There is, in other
articulate "racial identification" of "racial words, such an appeal as "racist logic," and
identities." worse, racial normativity leads to racial
Du Bois was a critical thinker of normality. A racist in a racist society is, in a
unusual talent for his times. In other work from word, "normal." In each instance, Fanon pushed
the period, for instance, his "The Study of the categories of interpretations to their limits to
Negro Problems" and The Philadelphia Negro, address the systemic flaws at hand, flaws that
he began to question not only prevailing racial require revolutionary practices for their
assumptions but also the assumptions of racial transformation instead of discourses of systemic
study itself. In other words, he began to study the adjustment. One can never "fix" all the players of
studier, the imagined "objective" voice of reason a bad system.
in the systematic acquisition of knowledge of The Fanonian strain had an enormous
racial or racialized subjects. At the heart of Du impact on the development of post structuralism.
Bois’s critical race theory, then, was a critical Its focus on failure, popular textual resources,
theory—a critique of theory itself. In The Souls cultural aetiologies, and constructivity were all
of Black Folk, Du Bois formulated the problem subsequently utilized by deconstructionists and
succinctly as a failure on the part of the theorists genealogical poststructuralists, and their
to study the problems of racialized people importance for critical discussions of race came
instead of reducing such peoples to the problems to the fore in Edward Said’s influential
themselves. Implicit in this move is Cugoano’s Orientalism. That all post colonialists appeal to
insight: a proper anthropology keeps the

51
the constructivity of race is but an example of scientific criteria. The leader of this way of using
this influence. ‘critical’ is K. Anthony Appiah.
From the late 1970s to the present, For others, "critical" serves the same
critical race theory has, thus, been marked by function as does "critique" in Kant’s Critique of
two major influences: Du Bois and Fanon. The Pure Reason—to determine the transcendental
central contemporary figures can easily be conditions of meaning and limits of concepts, in
distinguished by the predominant influence of this case, the concept of "race." Kant, as is well
one of these two thinkers, and conflicts have known, eventually called his transcendental
emerged from the use of one to criticize the philosophy "critical philosophy." The impact of
other, and from efforts to combine the two. The Kant’s work on modern thought needs no
Du Boisian legacy is, perhaps, most marked in explication here. Let it be said that its legacy has
the work of Lucius T. Outlaw and the group of continued influence on another way of using the
contemporary African-American philosophers word ‘critical’, namely, Frankfurt School type of
who have followed his lead, albeit critically—for critical theory. There, although the historical
example, Tommy Lott, Robert Gooding- figurehead was Marx—where the critical
Williams, and Josiah Young. The Fanonian exposed the ideological forces of the economic
legacy varies because it has two offshoots. On sedimented as the "natural" and the "religious"—
the one hand, there are those who simply follow the Kantian fusion led to explorations of
Fanon’s insights on constructivity. Some of meaningful conditions of dialogue, including
those scholars rely on an appeal to scientific dialogue on the critical, as we find in the work of
verificationism that makes for some strange Jürgen Habermas. The critical here does not
allies. Anthony Appiah, Naomi Zack, Charles function in a dismissive way, but instead as a
Mills, and Victor Anderson, for instance, share way of interpreting the social world. For race
Fanon’s approach of analyzing failures, and his theorists, the question of a critical understanding
appeals to constructivity, but they reject his of the social brings back Fanon’s
thesis that liberalism and scientism are examples sociodiagnostical approach. To be critical here
of those failures. David Goldberg, Michael Omi, requires understanding how the social functions
Howard Winant, Cornel West, Paul Gilroy, as its own reality.
Stuart Hall, and many others have taken the lead Although not often mentioned in this
on the racist culture position. We should bear in light, the phenomenological work of Alfred
mind that none of these thinkers, on either the Schutz is central here in that it examines the inter
Du Boisian end or the Fanonian end, represent a subjective dimensions of social reality. Schutz’s
complete unity. Cornel West, for instance, draws work has influenced critical race theorists
upon insights from both Du Bois and Fanon, primarily in the so-called "continental" tradition,
although he explicitly appeals to John Dewey which, ironically, includes such theorists as
and Michel Foucault, as is evident not only in Lucius Outlaw as well. Outlaw has, in addition,
Prophesy, Deliverance! and Race Matters but presented a powerful case for this dimension of
also in Keeping Faith.6 Tommy Lott and Robert the critical through his examination of the debate
Gooding-Williams have taking the constructivity between class-centered theorists and race-
thesis seriously in much of their critical work on centered theorists. In "Toward a Critical Theory
race as well. And although I have placed Omi of Race,"8 Outlaw appeals to Omi and Winant’s
and Winant in the Fanonian legacy of focusing racial formation theory—where racial projects,
on racist culture and racist projects, their by virtue of institutional agents of transmittal,
sociological approach owes much to Du Bois’ have led to the formation of the "racial state"—to
turn-of-the-century efforts at policy analysis. raise the question of a Marxist or any other type
A debate that has emerged from the of critique in a racialized society. Does not such
work of the aforementioned theorists is the a reality betray the error of reductive readings of
significance of the "critical" in critical race race and class (and other identity formations)?
theory. For some, "critical" serves a purely Outlaw’s phenomenological side emerges in his
negative function—to determine what must be concluding remarks:
eliminated or rejected. Such theorists dismiss "Lest we move too fast on this [on moving
"race" on the basis of its constructivity. A beyond racism in a pluralistic democracy] there
construction is, such theorists argue, a fiction, is still to be explored the "other side" of "race":
and by ‘fiction’ they mean that which fails to namely, the lived experiences of those within
achieve ontological legitimacy through natural racial groups (e.g., blacks for whom Black
nationalism, in many ways, is fundamental).

52
That "race" is without a scientific basis in phenomenological journey of socially
biological terms does not mean, thereby, that it is converging matrices of identity. A properly
without any social value, racism critical race theory must address, in other words,
notwithstanding. The exploration of "race" from the fact that no human being is, nor is able to
this "other side" is required before we will have live, one (and only one) identity without
an adequate critical theory, one that truly collapsing into pathology. In addition, a properly
contributes to enlightenment and emancipation, critical race theory must be willing to explore the
in part by appreciating the integrity of those who possibility of systemic failure, a failure which
see themselves through the prism of "race." We may require radical transformations of the
must not err yet again in thinking that "race matrices through which a society’s resources are
thinking" must be completely eliminated on the distributed and through which they are
way to emancipated society." interpreted. From this point of view, liberating
Outlaw’s advancing the category of practices aim at opening possibilities for more
"lived experience" raises another legacy that, humane forms of social relations. In effect, it
ironically, is a fusion of Du Bois and Fanon argues for "material" and "semiotic" conditions
through their differing phenomenological of human possibility. As such, it’s a theory that
influences. Du Bois, as is well known, advanced bridges the identity and liberation divide.
the experience of blackness as a dual
consciousness. Fanon raised this question in Race – Caste
Black Skin through a phenomenology of Race is group which shares in common
alienated embodiment. Both Du Bois and Fanon a certain set of innate physical characters and a
recognized, as well, the impact of "historicity" in geographical origin within certain area. It is a
this mode of alienation. Racialized peoples have broad association of persons of similar biological
an ambivalent relation to history, for their heritage, who are united in sentiment by
identities are historically constituted as both the common cultural traditions and who in time of
bane of their existence and the reality without conflict seek to claim rights to a better social
which they could not be. Like an abusive parent position on the basis of an inherited quality. The
who has abandoned its offspring, modern history category of caste‘ has a long history both in and
is also such people’s history, for better or worse. out of the Indian subcontinent, one that is
For Fanon, this ambivalence called for a dialectic frequently intertwined with that of race. ‘From
between history and theoretical reflection, and H.H. Risley‘s use of late-nineteenth century
what emerges from that dialectic is lived European race science in anthropometric
experience. The counsel of recognizing lived research, to Max Mueller‘s articulation of the
experience reaffirms Du Bois’ edict of studying Aryan theory of race and Pan- Africanist
people’s problems without problematizing the expressions of racial solidarity with the lower
people—in effect, appealing to their lived castes of India, caste has frequently been
experience calls for recognizing them as points redefined and politicized by being drawn into
of view, as part of the inter subjective world of wider discourses about race.
sociality. But more, experience is here used as a Caste means lineage or race. It is from
bridge between the subjective and the objective the Latin word Castes that means pure. This is of
(where the objective signifies inter subjectivity). Spanish and Portuguese origin. The Spaniards
This other legacy raises the question of the were the initial to utilize it, but its Indian
critical through the paradoxes and failures of submission is beginning the Portuguese, practical
intentional life. The critical here signifies the it in the middle of the fifteenth century. The
self-reflective activity of the theorist advanced current spelling of the word is after the French
by Du Bois a century ago. The studier must here word Caste, which appears in 1740 in the
raise the question of his or her performative academics‘, and is hardly found before 1800.
contradictions. The theorist must be attuned to Before that time it was spelt as cast.‘ In the
possibilities of bad faith—lying to himself or sense of race or breed of man it was used as
herself about the practices of knowledge early as 1555 A.D. The Spanish word Casta‘ was
production at hand—and the "object," if we will, applied to the mixed breed between Europeans,
of "race" study, namely, human beings. In my Indians and Negroes. As the Indian idea of caste
work, this question has required the challenge of was but vaguely understood this word was
developing resources through which to study a loosely applied to the hereditary classes of
being who lacks a nature. It has meant taking Du Europe resembling the castes of India, who keep
Bois’ and Fanon’s contributions on a themselves socially distinct.

53
 The abstract noun caste in a variety of
senses and the words caste system as one
expression to denote a group of phenomena, the
expression origin of caste can have no meaning.
The theory of four classes (varnas) in society has
its origin, a sharp line between various layers of
society has its origin; ascendency of the priests
and their exclusiveness has their origin,
association of purity and impurity to various
objects also has its origin.
According to H. Risley a caste may be
defined as a collection or groups of families
bearing a general name which usually denotes or
is allied with specific activity, claiming common
descent from a imaginary ancestor, human or
celestial, professing to pursue the similar
proficient callings which are capable to give an
estimation as forming a homogeneous
community. S.V. Ketkar says a caste is a social
group having two characteristics. (1)
Membership is confined to those who are born of
members and includes all people as natural. (2)
The members are forbidden by an inexorable
social law to marry outside the group.
Castes are again divided into several
groups called gotras. These gotras are
exogamous. No family marries with a family of
the same gotra. In some parts of India there is
hypergamy. Certain groups of families in caste
are considered higher than the rest, and it is
customary that women in the inferior groups
should seek to marry with men in the superior
groups, but not vice versa. This type of caste
system is also seen in Ramayana.

54
 Module - 07
RIGHTS AND DUTIES

Natural Law influenced on the Natural III) Legal Rights – confirmed by state / by
Rights some jurist gave emphasis on the duties judicial decision. E.g. Fundamental Right
like Duguit while other on the human right like U/A. Part III.
Fennis. IV) Rights justified on consequentiality
Roscoe Pound- Rights are claim of an Grounds. – Based on exigencies, of
interest in order to keep balance between private circumstances. & Common sense. E.g.
& social interest. 1) Shut prisoner who by breaking jail
It shows that how the concept of right is runs away, 2) Damage done by fireman,
the key concept in moral, philosophy & political 3) Right of private defence.
system, because rights are sine guenon for Thus when moral right gets legal
human life as well as society for its progress. recognition & protection then it becomes legal
Thus only the Rights govern the right.
political & social morality.
John Lock & Thomas Pain *Basis of the right.
Political morality & the social choices 1. Rights are goal based. – Rights are based
were to be governed by the consideration of on goals, which are set out by the law of
rights of an individual e.g. political morality. Land. e.g. part IV of constitution.
(I) French Declaration, the Magna Carta Bill of 2. Rights are right based. – Rights only is the
Rights, the Universal Declaration of Human basis of right It governs the individual
Rights & the Part IIIrd & IVth of the Indian interest. E.g. part III of constitution.
Constitution are the political morality.
(II) Social Choices. – The festival like valentine *Minerva Mills case
day movies like Bandit queen, Water, Fire, Justice Bhagwati – Rights are goal based. Justice
girl friend etc. is the social choices. Chandrachude – Right are right based.

*Definition of Rights. Prof T. N. Scallan – Even it is an individual

1) Kohler – It is a (1) regulation (2) sanction & interest, there are others, interests also involved.
(3) protection by the legal order. E.g. Public meeting 1) speaker, 2) audience, 3)
2) Hobbs’s & Lock – Right is the liberty, society.
3) Jennings – Right is an interest protected by
law. Prof Razz – whether it is right based / goal based
4) Savigney – Power of an individual is right the ultimate beneficiary is an individual therefore
which is authority. it is not make any difference.
5) Holland – Right is the capacity of one man
to controlling the action of another with the *Unni Krishnan case
assistance of the state. Supreme court – such a debate is not meaningful.
6) Salmond- right is an interest recognized &
protected by a rule of law. *Objects of the rights.
7) C. K. Allen – Right is the will power of man 1. Development of an individual in all
applied to a utility / interest recognized & dimension.
protected by a legal system. 2. To maintain the structure of society it is
primary aim or object.
Whether rights are Legal / moral? To achieve these objects the society
1) Moral Rights – These are very basic rights. must be –
Not all moral rights are legal rights though 1) Tolerant one,
most of legal rights are moral one. E.g. right 2) Educated one &
to life, right to religion, property Equality, 3) Infused with the sense of respect for
parents, right to be looked after. human being.
There is no legal sanction behind E.g. 1) During Taliban Regime in
moral rights. Afghanistan & Saddam’s regime in
Iraq the society was not as per above

55
 In India society is present as above Thus as per his view, the
therefore India is called as fertile land for all the notification of right is absolute & they
religion. are immune from any type of control by
In every legal system rights are state authority.
invisibly presents, which mayn’t provided by E.g. 1) Art 19 (1) (a) becomes absolute
law therefore positivitisation of rights only if Art 19 (2) is removed.
amount to give them basis of fundamental right
because the list of right is an unlimited therefore 3. Privileges of Members of
rights are moral coinage. parliament / member of legislative
Prof. Feinberg – Rights are indispensable assembly ‘s U/A105.
valuable possession
1) Indispensable – Necessity & binding ness 4. Photography by a person having
without any exception. licence.
2) Valuable or object - the Value of rights Criticism.-
having various aspect. E.g. Petals make No any right is absolute there are
flower like wise other various aspects make always limitations on right
rights. Prof J. Raz – Rights are essentially exercised for
Thus value of Right means a definite public goods. E.g. exception to freedom U/A
object upon which a somebody stand on with 19(2) to (6).
respectfully & can do the particular act without
any sham / shy e.g. 1) Right to vote – if Name is Prof Dwarkine –
in Roll, 2) Attaining party on invitation. The rights are not gift from God rather,
As there are numbers of right therefore the institution of right is very complex &
question arise how much weightage given to troublesome therefore it is the Job of
them? government to securing the public good.
The answer depends upon the following Thus legal system not only recognizes
things. but also enforce & protect the rights. E.g.
(I) As per their 1) strength, 2) urgency 3) pre- 1) Right to Education U/A 21A by 86 th
eminency E.g. 1) Right to go on strike – Amendment 2002
This right is not available a) during war / 2) J Khanna – Theory of Natural Law &
emergency b) Natural calamities Natural right are linked with each other.
Fundamental Right is basic Human Right
– these rights can be suspending during Prof Dwarkin : taking rights seriously - As we
national emergency U/A 359 exception. have rights other do have therefore we have to
U/A 20 & 21. respect thedegnity & Honour of the others,
otherwise it will amount to not respect to rights
(II) As per their priority of other.
Prof John Rawls – rights are lexical He apposed right –life & Liberty in U.S.
priority i. e. they have priority above any A. constitution because.
kind of consideration including 1) It can’t explain / justify the discrimination
consideration of utility. E.g. Reservation which state would like to make for the
policy – In case of conflict of an interest upliftment of all.
the maximum of fulfillment of rights & 2) This right linked with right to property
minimum of violation of rights. therefore state mayn’t have power to deprive
the personal life & liberty.
(III) The absolute rights are the limitation upon ` Therefore Right to Equality is only final
the exercise of executive power by the yard stick to protect right to life liberty & not
authority. The rights are stipulation upon that right itself.
sovereign legislative power of the state.
E.g. part III of constitution reference with Characteristics of a Legal Rights
Art 12&13 . (I) There must be a person of inherence.-
Prof R. Dwarkin- Rights are trumps over The own of right / the person entitled to
some background justification for political the right – subject of right
decision that states for whole communities The subject of right may be
life.

56
 1) A particular person. E.g. XIV – own a 5) Mortgage
plot of land every rights regarding 6) Trove( finder of something )
points in only his favour. 7) Capturing a Res Nullins.
2) An unascertained person e.g. Bequest To understand above characteristics of
to unborn person. right see the example of buying house.
3) An indeterminate body. E.g. Society / 1) person of inheritance –Buyer
Community having right to get 2) person of incidence – seller
protected from society disturbance etc. 3) the content of right will be that nobody
must disturb the peaceful enjoyment of
(II) There must be a person of an incidence. house.
Person who is has to obey/the person who 4) The subject matter of the right is the house,
has to respect the right is called the person 5) The title is got by the purchase.
of incidence – subject of duty .
Thus rights, always operates against Nature of Right- It is described by two theory
some person who is under a duty to obey /
respect that right therefore rights & duty are two (I) Choice / will theory of right .
sides of the same coin hence every legal right By H.L.A. Hart – The purpose of law is to
implies a corresponding duty. E.g. credito – grant widest possible means of 1) self
Debtor. expression to the individual & 2) maximum
Creditor – Right to receive money ( degree of self assertion.
Person of an inheritance ) Debtor – Duty to pay It shows the individual has choice to enjoys /
debt (person of an incidence) . not to enjoy his right / to extinguish his
right. It shows the absolute descrition of an
III)There must be an obligation to do / not to do individual. E.g. 1) national Antham case
something. 1996, 2) P. Rathinam case – Right to life
The content of an right may be an act / also include right to die U/A 1992 But in
an omission in favour of the person entitled . Baseshare Nath case 1956 – supreme court –
therefore right imply the doing / the not doing person can’t waive his right he has no
of something on part of the person bound. choice, 3) Gyan Kaur case. 1994. –Supreme
E.g. 1) Right not to allow trespasser over court – right to life U/A21 doesn’t incluid
one’s land. 2) right to receive goods under a right to die.
contract. Criticism
1) This theory discregarded others right
IV) There must be an obligation of the right. e.g. Minor, Lunatics, they can’t
The right i.e. act / omission must be relate to explain their choice / will e.g.
something. The word “ting” having two Deshanie case.
sense. 2) Environment & Animals also have right
1) Tangible things e.g. Right to property but they can’t explainit. E.g. caw
2) Intangible things e.g. right to reputation, slaugher case.
goodwill etc. 3) This theory is against principle Ubi jus
Thus object of the right is also called Ubi Remedium. – Whenever there is
the subject matter of the right. right there is remedy. Therefore this
theory is not acceptable.
V) Every Legal right has a title.- Certain (II) Interest / Benefit theory – Bentham prof J
facts/events by reason of which the right has Raz initiated this theory. – Right is not will /
become vested in its owner – source of right. choice of an individual nor self assertion /
It signifies how the owner of the right expression but “it is an interest of an
became owner of the right. Thus title is the “De individual”
facto” antecedent of which the right is “De jure” Therefore R Pound – right is an interest
consequence . recognized & protected by law.
Modes by which a person acquires title Thus the nature of a right is to secure
to a right. the interest / benefit of an individual so that
1) citizenship e.g. Fundamental right there is no question of an interest / right of
2) purchase , an individual but it is of the society at large.
3) Inheritance. E.g. 1) Concept of Public Interest Litigation
4) Gift

57
 2) Environment protection laws.3) cow it It based on principle ubi jus ubi
slaughter (prohibition ) Act Remedium.
This theory got world wide accepted. (ii) Imperfect – Although recognized by law,
is not enforceable . e.g. 1) claims barred
KINDS OF LEGAL RIGHTS by time limit, 2) claims not in specific
(I) Positive & Negative Rights form ( writing /sign ) required by law.
Positive Rights – To do some positive act. The imperfect rights remain
A----B ,A-Purchaser ,B-Seller, to claim valid for all purposes except enforcement
purchase money (positive act) therefore the / Thus the laps of time / not followed
scope of a positive right is to receive “ specific requirement of law doesn’t
Positive benefits”. destroy the right but merely reduces it
Negative Rights – Not to do some Negative from the rank os one is perfect to an
act. I.e. right to retain what one already has imperfect one perfect right can become
promised / done so that to maintain status imperfect / imperfect right become
quo A-B (Apprentice in B’s Business on perfect. E.g. by acknowledgment /
condition that he not serve any Rival promise.
Business for 3 years.)
Therefore the scope of a negative right (IV) Proprietary & personal rights.
is that person having the right shall not be 1) proprietary rights – persons right in
harmed. In any society the number of relation to his own property , estate assets
negative rights are much more than positive / other monetary benefits.
right. Therefore all men are bound to refrain 2) Personal rights – In relation to persons’s
from all kinds of positive harm. While only status e.g. Right to reputationfreedom of
some men are bound to acting confer speech etc.
benefits for others. Salmond- Difference between two right
A – Money – B – positive right – to give / general in nature.1) propritory can be valued
pay money to B - Not to use, distroy , use , but Personal rights can’t exception personal
steal more – negative rights. Against whole rights are valuable eg. Reputation. 2)
world. proprietary rights are transferable but
personal right are not. Exception proprietary
(II) Rights in re propria & rights in re aliena. right – right of pension can’t transfer.
1) Re propria – sets in own property e.g. 1)
own land, 2) fetch / draw water from (V) Inheritable & Uninheritable rights. –
own well etc. (1) Inheritable – They survives its owner
2) Re aliena – one’s rights in someone e.g. Right to property , estate , car, land,
else’s property e.g. 1) right to way etc.
over anothers land.etc. (2) Unheritable – They die with the death
Salmond – All rights which are not right in of the owner.e.g. personal, rights speech
rel aliena are rightin re-propria . The right in & expression.
realiena limits / reduces a right in repropria.
E.g. Easement therefore Re aliena rights – (VI) Rights in rem & Rights in personum.
Dominant rights & Re propria rights – 1) Inheritable – They survives its owner
servient rights. E.g. A is Dominant e.g. Right to property , estate , car,
heritage/owner ,B servient heritage / owner. land, etc.
Even servient heritage is sold off, the 2) Unheritable – They die with the death
dominant owner doesn’t lose his right . of the owner.e.g. personal, rights
Salmond – some time there may be speech & expression
encumbrance of an encumbrance. E.g. in A right in rem however need not always
sub-letting of tenancy – Right of tenant is relate to a tangible thing & may be an intangible
dominant with regard to actual land owner thing.e.g. right not to defamed not to be
but servient with regard to that of sub- assaulted. Etc.
Tenant. A right in rem also called as a” real
(III) Perfect & imperfect rights. right “ therefore no of rights in rem possesed by
(i) perfect - can be legally enforced & a person are countless therefore right in rem
which has a correlative duty attached to generally speaking are negative rights.

58
 Right in personam – available against
particular person. E.g. contract between A & B. He said there can be no duty unless
there is someone to whom it is due
They are generally speaking positive therefore there can be no right without
right which requiring a specific act . therefore in a corresponding duty, and no duty
case of breach of a right in rem a right in without a corresponding right. E.g.
personam arises against aggressor e.g. contract creditor – Debtor ,( Credito-right to get
between Employer & Employee , Employee back) , (Debtor –Duty to pay back)
bound not to work for another Employer. Thus every right / duty involves a
vinculum juris or bond of legal obligaion by
(VII) Principal & Accessory Rights which two / more persons are bound together.
(1) principal – main / primary rights vested So that every duty must be a duty
in a person under law. towards some person, in whom therefore a
(2) Accessory – subordinate / Additional corresponding right is vested . And conversely
rights e.g. file suit – primary right & every right must be a right against some person,
engangelawer – accessory rights. upon whom therefore a corrective duty is
Accessorium sequitur. – the accessory imposed.
rights follows the principle rights e.g. Lake shore & M.S.R. co.v. Kurtz.
right to a debt is principle right whereas House of Lord – A duty / legal obligation is that
the right to interest is an accessory which one ought to / ought not to do . Duty &
Right are correlative terms. When a right is
(VIII) General Rights & special rights H.L.A. involved a duty is violated.
Hart - (1) General rights – possessed In case of fundamental right U/P III of
equally by all members of a society . e.g. the constitution state is under duty to protect the
Rights to vote, right to enter public park, fundamental rights.
meetings etc.
(2) special – Rights arise out of special (II) Austines view- Duties & rights are not
transaction between specific individual necessarily correlative .
/ from same special relationship This view supported by C. K.
between them. E.g. contractual rights. Allen – Every right implies a
The right in rem available against whole corresponding duty, but every duty
world while general right available to/ doesn’t necessarily imply a
possessed equally by all member of society corresponding rights.
generally speaking right in rem are If, Right then Duty,If Duty them may/
negative rights where as general rights are mayn’t Right
positive rights. e.g. It is the duty of a justice to punish
an offender who is guilty, but it can’t be
 Rights in strict sense. – said that the duty of the justice implies a
It is a debatable question whether rights & duties corresponding right on part of the
are necessarily correlative offender to be punished.
Salmond – duty & rights are correlative
Austine – they are not correlative Austin
The correlative – which is mutual There are two kinds of duties.
complementary, reciprocal / corresponding . 1) Relative Duty & having
Thus correlations signify something that corresponding rights e.g. Debt.& 2)
occurs together therefore correlative doesn’t Absolute Duty – do not having
mean opposite . Hence ‘duty’ is not the opposite corresponding rights e.g Judges duty.
of right it is a correlative of right i.e. they occur Thus it may be said that duties in the
together therefore opposite of right is no- right. strict sense of the term have corresponding
(I) Salmonds View- Duties & rights are rights but duties in thewider sense do not.
correlative. A duty is an obligatory act,
it is an act the opposite of which is a State of Rajashtan v. Union of India 1977
wrong when we do a wrong we have Supreme court – In a strict sense, legal right are
violated the right of another therefore correlative of legal duties & are defined as
wrong ( Breach of duty) signifies interests which the law protects by imposing
violation of a right. corresponding duties on others. But in a generic

59
sense, the word right is used to mean an Jural – Relations – Jural Correlative &
immunity from the power of another in the same Jural opposites
way as liberty is exemption form the right of
another. Immunity, in short is no-subjection. Jural correlatives
1) Right –Duty
 Rights in wider sense- Every right includes 2) Privilege -/liberty – No right
other legally recognized interest without 3) Power – liability
considering whether they have 4) Immunity – disability
corresponding duty / not.
Therefore every right couldn’t enforced Jural opposites
because every right is not stict e.g. U/A 36 – 1) Right – No right
State is not under any duty to enforce Directive 2) Privilage /liability – Duty
principles of state policy. 3) Power – Disability
Prof R. Pound- gave five meanings of 4) Immunity – liability
right.
1) Right is an interest, 1) Jural correlative – Two things that
2) Right is the claim occur together.
3) Right is the power 2) Jural opposites – Diametrically
4) Right is the Liberty/Privilage & different in characteristic &
5) Justice. tendency i.e. no pair of opposites
It is important in relating to rightswhich can co-exist in same person.
are not recognized ? provided by law. E.g.
Principle of Natural Justice. Jural Correlatives
Thus he showed that the right having
different connotations. Right Privilege /Liberty Power Immunity
   
W. N. Hohfeld Duty No Right Liability Disability
An American jurist who attempted to (Subjection) (No power)
isolate various concepts in the field of legal
rights & to present them in a specific (I) Right – Duty – Right is an affirmative claim
unambiguous terminology. against another therefore another is under
He clarified the term right & duty e.g. Landlord – Tenant.
differentiated it from such related ideas such as (II) Privilege / Liberty – No right
(1) Liberty, (2) power & (3) immunity in his Privilege means freedom from Rights of
famous publication fundamental Legal another therefore another has no –rights.
Conceptions as applied in Judicial Reasoning No. Rights – an absence of any right /
(1919). power to prevent another from doing what he is
In the wider / generic sense, a legal doing / going to do.
right may be defined as any advantage / benefit ` This is based on maxim “damnum sine
conferred upon a person by the law. Thus rights injuria” - Damage without legal injury e.g.
(in strict sense), liberties, powers & immunities person has a liberty to defend himself against
are all of such a nature that they confer some violence but he has “No right “to revenge upon a
advantage / benefit upon its holder . In wider person who has injured him.
sense., Right is generic common embracing
whatever may be lawfully claimed & includes (III) Power- Liability
amongst other things interest , power , Power – affirmative control over
prerogative, immunity privilege / liberty, claim another therefore another is under liability e.g.
authority etc. Employer – Employee
He attempts to split up the concepts Powers are of two types
embodied in the term ‘right’ (In its wider sense) (i) Public power- vested in a person as an
and to give them precise meanings by agent of state.e.g. 1) police power to
articulating a scheme of ‘Jural ‘’relations’ by arrest. 2) power of Legislature to enact
grouping them into ‘Jural Correlation’ & ‘Jural laws etc.
opposites’ (ii) Private power – which are vested in a
Jural – the law / rights person & are to be exercised by him for

60
 his own purpose . e.g. 1) power to make 3) The aspect of Right as per this analysis
will, 2) power to make gift etc. merely illustrative & not exhaustive
The liability signifies a loss, disatge/ a therefore rights having various other
change for the worse, But some time liability important aspects. E.g. Fundamental
may mean a chance to be benefited also. E.g. Rights, Principle of Natural Justice.
will – benefits.
 Importance of this Analysis.
(IV) Immunity – Disability 1) It provide strong base to the Right .
Immunity – the freedom from powers of 2) It helps to under stand value, utility &
another therefore another is under disability need of Fundamental Right.
e.g. przd , Governor , foreign Ambassitor Thus the concept of Fundamental Right
etc. is recognized not only National but also
International level e.g. Indian Constitution.
Jural co-opposite In case of absence of Fundamental
Right they can incorporated under constitution
Right Privilege / Liberty Power Immunity by judiciary e.g. Maneka, Vishaka cases
Marbury v. Medicine.
U.S.A. supreme court – Judicial Review against
amendment, if it taking away Fundamental
No Right Duty Disability Liability Right.
The Fundamental / Non – Fundamental
It states the position of single person while enjoy /Natural/ positive right are very important facet
his right as follow as they are working as the fertilizer of right.
Now the Principles of Natural Justice
(I) Right – No Right get positive in legal system as they not only
When one person enjoy right he has no confirm the right but also autonomy of an
under any no right individual . Also they not only develop
individual but society at large too.
criticism – How any one has right & No right.? Thus we may brand right is particular
name but its ultimate value is prosperity,
He replied – 1) It is used merely for individuality & autonomy of an individual & its
convenience, in order to fill the vacuum 2) No – helps to develop large part / chunk of society.
no right becomes a Righton the mathematical
assumption.

(II) Privilege – Duty

When one has privilege then he is not under any
duty.

(III) Power – Disability

When one has power he is not under any
disability.

(IV)Immunity – Liability
When one has immunity he has no any liability

Criticism against Hohfeldian Analysis.

1) The Jural co-relative Immunity –
Freedom from another’s power is not
correct. E.g. U/A 21 life & liberty can
be taken away by the Government by
following proper procedure. Therefore
is not always immunity from the power
of State.
2) The concept like No right & duty are
merely fundamental concept.

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 MODULE - 08
CONCEPT OF PROPERTY AND OBLIGATIONS

Definition and concept of property It is proper to observe that in some

Property has a very wider meaning in its cases, the moment that the owner loses his
real sense. It not only includes money and other possession, he also loses his property or right in
tangible things of value, but also includes any the thing: animals ferae naturae, as mentioned
intangible right considered as a source or above, belong to the owner only while he retains
element of income or wealth. The right and the possession of them. But, in general,' the loss
interest which a man has in lands and chattels to of possession does not impair the right of
the exclusion of others. It is the right to enjoy property, for the owner may recover it within a
and to dispose of certain things in the most certain time allowed by law.
absolute manner as he pleases, provided he
makes no use of them prohibited by law. Meaning of property
The sea, the air, and the like, cannot be In general sense, property is any
appropriated; every one may enjoy them, but no physical or virtual entity that is owned by an
one has any exclusive right in them. When things individual or jointly by a group of individuals.
are fully our own, or when all others are An owner of the property has the right. Human
excluded from meddling with them, or from life is not possible without property. It has
interfering about them, it is plain that no person economic, socio-political, sometimes religious
besides the proprietor, who has this exclusive and legal implications. It is the legal domain,
right, can have any claim either to use them, or which institutes the idea of ownership. The basic
to hinder him from disposing of them as he postulate of the idea is the exclusive control of
pleases; so that property, considered as an an individual over some ‘thing’. Here the most
exclusive right to things, contains not only a important aspect of the concept of ownership and
right to use those things, but a right to dispose of property is the word ‘thing’, on which a person
them, either by exchanging them for other has control for use. To consume, sell, rent,
things, or by giving them away to any other mortgage, transfer and exchange his property.
person, without any consideration, or even Property is any physical or intangible entity that
throwing them away. is owned by a person or jointly by a group of
Basically Property is divided into real people. Depending on the nature of the property,
property, and personal property. Property is also an owner of property has the right to consume,
divided, into absolute and qualified, when it sell, rent, mortgage, transfer, exchange or
consists of goods and chattels. destroy their property, and/or to exclude others
Absolute property is that which is our from doing these things.
own, without any qualification whatever; as There are some Traditional principles
when a man is the owner of a watch, a book, or related to property rights which includes include:
other inanimate thing: or of a horse, a sheep, or 1. Control over the use of the property.
other animal, which never had its natural liberty 2. Right to take any benefit from the
in a wild state. property.
Qualified property consists in the right 3. Right to transfer or sell the property.
which men have over wild animals which they 4. Right to exclude others from the
have reduced to their own possession, and which property.
are kept subject to their power; as a deer, a
buffalo, and the like, which are his own while he Definition of property
has possession of them, but as soon as his There are different definitions are given
possession is lost, his property is gone, unless the in different act as per there uses and needs. But
animals, go animo revertendi. in the most important act which exclusively talks
Property is again divided into corporeal about the property and rights related to property
and incorporeal. The former comprehends such transfer of property act 1882 has no definite
property as is perceptible to the senses, as lands, definition of the term property. But it is defined
houses, goods, merchandise and the like; the in some other act as per their use and need.
latter consists in legal rights, as chooses in Those definitions are as follows:
action, easements, and the like. Section 2(c) of the Benami Transactions
(Prohibition) Act, 1988 defines property as:

62
 According to this theory, property came
“Property” means property of any kind, whether into existence on account of acquisitive instinct
movable or immovable, tangible or intangible, of man. Every individual desires to own things
and includes any right or interest in such and that brings into being property.
property. According to Bentham, Property is
Section 2 (11) of the Sale of Good Act, altogether a conception of mind. It is nothing
1930 defines property as: more than an expectation to derive certain
“Property” means the general property in goods, advantages from the object according to one’s
and not merely a special property. capacity.
Roscoe Pound also supports Bentham
Theories of property and observed that the sole basis of conception
There are many theories which have of property is the acquisitive instinct of
been evolved for the purpose of understanding individual which motivates him to assert his
the concept of property properly. claim over objects in his possession and control.
Those theories are as follows:
1. Historical Theory of Property: Functional Theory ( Jenks, Laski)
2. Labour Theory (Spencer): The theory is sometimes also known as
3. Psychological Theory (Bentham): ‘sociological theory of property’. It implies that
4. Functional Theory ( Jenks, Laski): the concept of property should not only be
5. Philosophical Theories– confined to private rights but it should be
(i) Property as a means to Ethnical Ends considered as a social institution securing
(ii) Property as an End in itself maximum interests of society. Property is
situated in the society, has to be used in the
Historical Theory of Property society.
According to the Historical theory, the According to Jenks, no one can be
concept of private property had grown out of allowed an unrestricted use of his property, to
collective group or joint property. In the words the detriment to others. He said that the use of
of Henry Maine, “Private property was chiefly property should conform to the rules of reason
formed by the gradual disentanglement of the and welfare of the community.
separate rights of individual from the blended According to Laski, Property is a social
rights of the community. fact like any other, and it is the character of
Earlier property did not belong to social facts to alter. Property has further
individuals, not even to isolated families, but assumed varied aspects and is capable to further
the larger societies composed on patriarchal change with the changing norms of society.
mode. Later with the disintegration of family- Property is the creation of the State
individual rights came into being. The origin of property is to be traced back to
Roscoe Pound also pointed out that the the origin of law and the state. Jenks observed
earliest form of property was group property. It that property and law were born together and
was later on that families were partitioned and would die together. It means that property came
individual property came into being. into existence when the state framed laws.
Property was nowhere before law.
According to Rousseau, “It was to
Labour Theory (Spencer) convert possession into property and usurpation
The theory is also known as ‘positive into a right that law and state were founded”.
theory’. This theory insists on the fact that The first who enclosed a piece of land
labour of the individual is a foundation of and said- ‘this is mine’- he was the founder of
property. This theory says that, a thing is the real society.
property of a person, who produces it or brings He insisted on the fact that property is
it into existence. The main supporter of this nothing but a systematic expression of degrees
theory is Spencer, who developed it on the and forms of control, use and enjoyment of
principle of equal freedom. He says that things by persons that are recognized and
property is the result of individual labour. protected by law. Thus the property was the
Therefore, no person has a moral right to creation of the state.
property which he has not acquired by his
personal effort. Philosophical Theories –
Psychological Theory (Bentham)

63
 The definition of movable property is given
Property as a means to Ethnical Ends differently in many acts. Some of the
In the opinion of Aristotle, Hegel and definitions are as follows:
Green, Property has never been treated as an end, Section 3 (36) of the General Clauses
but always as a means to some other end. Act defines movable property as: 'Movable
According to Aristotle, it may be a means to the property shall mean property of every
end of good life of the citizens, further in the description, except immovable property."
opinion of Hegel and Green, it may be a means Section 2 (9) of the Registration Act,
to the fulfillment of the will without which 1908 defines property as: 'Moveable property'
individuals are not full human. According to includes standing timber, growing crops and
Rousseau, Jefferson, Friedman, it may be a grass, fruit upon and juice in trees, and property
means as a pre-requisite of individual freedom of every other description, except immovable
seen as a human essence. property."
Similarly the outstanding critics of Section 22 of IPC defines property as:
property like Winstanley, Marx have denounced The words “moveable property” is intended to
it as destructive of human essence, a negative include corporeal property of every description,
means in relation an ontological end. except land and things attached to the earth or
In all the above cases, property is taken as a permanently fastened to anything, which is
means not as an end. attached to the earth.
Things attached to the land may become
Property as an End in itself moveable property by severance from the
The supporters of liberal Utilitarian earth.for example Cart–loaded of earth, or
model, from Locke to Bentham, recognize stones quarried and carried away from the land
property as an end. It is maximization of utilities. become movable property.
According to Bentham, the command of utilities
is measured by the material wealth. The Immovable property
maximization of material wealth is The Term "Immovable Property" occurs
indistinguishable from the ethical end; property in various Central Acts. However none of those
is virtually an end in itself. In the words of Acts conclusively define this term. The most
Locke, the unlimited accumulation is a natural important act which deals with immovable
right of the individual that is an end in itself. property is the Transfer of Property Act
Aristotle and Aquinas have considered, (T.P.Act). Even in the T.P.Act this term is
‘’property as a means, concluded for a limited defined in exclusive terminology.
property right. Hegel and Green, treats property, 1. According to Section 3 of that Act,
as a means, concluded for an unlimited right’. "Immovable Property" does not include
The supporters of utilitarian tradition treat, standing timber, growing crops or grass.
accumulation of property, as an end, always Thus, the term is defined in the Act by
meant a right of unlimited accumulation. excluding certain things. "Buildings"
Later the concept changed and the constitute immovable property and
utilitarian Bentham held that the ultimate end to machinery, if embedded in the building for
which all social arrangements should be directed the beneficial use thereof, must be deemed
was the maximization of the aggregate utility to be a part of the building and the land on
(Pleasure minus pain) of the members of the which the building is situated.
society. While listing out the kinds of pleasures, 2. As per Section 3(26) of the General Clauses
including non material one, he held that wealth, Act 1897, "immovable property" "shall
the possession of material goods was so essential include land, benefits to arise out of land
to the attainment of all other pleasures that it and things attached to the earth, or
could be taken as the measure of pleasure or permanently fastened to anything attached to
utility as such. the earth". This definition of immovable
property is also not exhaustive;
Kinds of property 3. Section 2(6) of The Registration Act,1908
Broadly Property is divided into three defines "Immovable Property" as under:
kinds those are as follow: "Immovable Property includes land,
1. Movable and Immovable property building, hereditary allowances, rights to
2. Movable property ways, lights, ferries, fisheries or any other
benefit to arise out of land, and things

64
 attached to the earth or permanently fastened negotiable instruments, securities, service
to anything which is attached to the earth but (economics), and intangible assets including
not standing timber, growing crops nor chose in action
grass". Intellectual property
The definition of the term "Immovable Intellectual property is a term referring to a
Property" under the Registration Act 1908, number of distinct types of creations of the mind
which extends to the whole of India, except for which property rights are recognized—and
the State of Jammu and Kashmir, is the corresponding fields of law.
comprehensive. The above definition Property does not just comprise of
implies that building is included in the tangible things like houses, cars, furniture,
definition of immovable property. currency, investments etc and such assets are not
The following have been held as the only kind that can be protected by law. There
immovable property. are many other forms of intangible property
A right to collect rent, life interest in the known as intellectual property that have been
income of the immovable property, right of recognized under the law and granted protection
way, a ferry, fishery, a lease of land. against infringement
4. The term "Immovable Property" is defined Under intellectual property law, owners
in other Acts for the purpose of those Acts. are granted certain exclusive rights to a variety
As per Section 269UA(d) of the Income Tax of intangible assets, such as musical, literary, and
Act, 1961, Immovable Property is defined as artistic works; discoveries and inventions; and
under : words, phrases, symbols, and designs. Patents,
a. Any land or any building or part of a trademarks and copyrights, designs are the four
building, and includes, where any land or main categories of intellectual property.
any building or part of a building is to be
transferred together with any machinery, Patents
plant, furniture, fittings or other things, such Patents are used to protect new product,
machinery, plant, furniture, fittings and process, apparatus, and uses providing the
other things also. invention is not obvious in light of what has been
b. Any rights in or with respect to any land done before, is not in the public domain, and has
or any building or part of building (whether not been disclosed anywhere in the world at the
or not including any machinery, plant, time of the application. The invention must have
furniture, fittings or other things therein) a practical purpose. Patents are registrable
which has been constructed or which is to be nationally; the patent granted by European Patent
constructed, accruing or arising from any Office is a “bundle” of national patents. No EU-
transaction (whether by way of becoming a wide single patent system exists to date, although
member of, or acquiring shares in, a co- the Community Patent is in the final stages of
operative society, or other association of enactment. Registration provides a patentee the
persons or by way of any agreement or any right to prevent anyone making, using, selling, or
arrangement of whatever nature, not being a importing the invention for 20 years. Patents are
transaction by way of sale, exchange or enforced by court proceedings. In addition, the
lease of such land, building or part of a Regulation on Supplementary Protection
building. Certificates (SPCs), grants “patent extensions” of
up to 5 years to pharmaceutical and plant
Tangible and Intangible property: products, providing as much as 25 years of
Tangible property patent life for originator medicines.
Tangible property refers to any type of
property that can generally be moved (i.e., it Trade Marks
is not attached to real property or land), A symbol (logo, words, shapes, a
touched or felt. These generally include celebrity name, jingles) used to provide a
items such as furniture, clothing, jewellery, product or service with a recognisable identity to
art, writings, or household goods. distinguish it from competing products.
Trademarks protect the distinctive components
Intangible property: which make up the marketing identity of a brand,
Intangible property refers to personal property including pharmaceuticals. They can be
that cannot actually be moved, touched or felt, registered nationally or internationally, enabling
but instead represents something of value such as the use of the symbol ®. Trade mark rights are

65
enforced by court proceedings in which another. E.g. Duty to pay debt., duty to perform
injunctions and/or damages are available. In contract.
counterfeiting cases, authorities such as Salmond – an obligation is a proprietary right in
Customs, the police, or consumer protection can prsonam / a duty which corresponds to such
assist. An unregistered trade mark is followed by right. Therefore obligation is both right & duty. –
the letters ™. This is enforced in court if a It is vinchlm Juris i.e.a bond of legal necessity
competitor uses the same or similar name to which binds / links together two persons – one
trade in the same or a similar field. who is endowed with a right & the other who is
burdened with a corresponding duty.
Copyright Thus it follows two thing.(1) It is a
Copyright is used to protect original proprietary state in personam & (2) It is a duty
creative works, published editions, sound which is correlative of a property right in
recordings, films and broadcasts. It exists personam .
independently of the recording medium, so Therefore to qualify as an obligation a
buying a copy does not confer the right to copy. right must not only be a proprietary right but it
Limited copying (photocopying, scanning, must also be a right in personam & it is both
downloading) without permission is possible, corporial & Incorporieal property,. E.g.owing an
e.g. for research. Publication of excerpts or obligation to receive a debt.
quotes needs acknowledgement. An idea cannot The personal right ( Speech to
be copyrighted, just the expression of it. Nor expression etc) and right in rem are not
does copyright exist for a title, slogan or phrase, obligation because they are not right in personam
although these may be registered as a trade mark. Chose in action & chose in possession
Copyright applies to the Internet with web pages technically obligation is chose in action (a thing
protected by many different copyrights, so that in action ) i.e. right in personam which can be
permission should be asked to copy or print a enforced by a legal action. E.g. Debt , claim for
page, or insert a hyperlink to it. Material cannot damages . If there is right in ersonam but not a
be posted on a Web site (Intranet included) property right can’t be a chose in action therefore
without permission from the copyright holder. not obligation .e.g. contract of to marry – It
Copyright is not registrable because it relates to a personal & not a property interest
arises automatically on creation. Copyright is therefore not chose in action therefore not
protected in the EU for 70 years after the obligation.
author’s death for creative works, 50 years for Chose in possession. – any thing / right
broadcasts, etc and 25 years for published which was but compared to chose in action it
editions. Use of © is not required in most of become almost obsolete. Because by chose in
Europe. Copyright is enforced by court action any thing / right of which the claimant had
proceedings. no possession but he could obtain if need by way
of action (suit) at law. E.g. Money in a man’s
Design Registration purse was a thing in possession & therefore not
Design registrations are used to protect an obligation where as money lent to a friend
products distinguished by their novel shape or was a thing in action & therefore an obligation.
pattern. They are available for one-off items. The Sources of obligations
design itself must be new, although a 1 year (I) Contractual obligation. – arise due to an
grace period is allowed for test-marketing. agreement between the parties to the
Registration is not possible where the new form contract.- right in personm.
is dictated by function. The design is registrable
either nationally or under an EU-wide single (II) Quasi-contract obligation.
right. It can also be protected by copyright. Which are not in truth contractual but
which the law treats as if they are i.e.
implied contract. E.g. 1) Necessaries
supplied to a person incapable of
OBLIGATIONS contracting 2) Interested in the payment.
It came from Latin word. Obligare – to Of money which another is bound by law to
tie around / bind in popular sense it is merely pay, 3)enjoying benefit of non-gratuitous
duty . act.4) takes money / a thing under coercion.
Holland – a tie, whereby one person is 5) finder of goods – acts as an bailee.
bound to perform some act for the benefit of

66
 Principle – unjust enrichment shouldn’t be
allowed to be retained at the expense of
another person.
(III) Delictal obligation – Obligations based on
Tort. I.e. it creats a duty of making
monetary compensation for thecommission
of a tort.e.g. Wikinson v. Dowton 1867.
causing nervous shock by falsely
representation.
(IV) Innominate obligation.- which are not
included in above 3 classes i.e. these are
residuary obligations. E.g. trustee –
beneficiary, Guardian – ward.

 Solitary obligation.
Roman law – solidium – togetherness /
collective part. E.g. employees – strict. Prof parte
– portionate parte . It consequences are
important Rs 1000 debt to B & A (partner) is
creditor. It means debt of Rs 1000 owned by
each of them to X . Here X has discretion to sue
only A/B or both.

 Kinds of solitary obligation

(I) Several solidary obligation Individual /
separately
Obligation – Debtor – I(Discharges only
one party) & Debtor - II (contract of
surety is after.)

(II) Joint solidary obligation – Under English

law – Legal tie between the Debtors on one
hand & the obligation on the other hand
.(Discharges both the partie.) Obligation –
Debtor – I & II (contract of surety
together).
(III) Joint & Several Obligation – It is
recognized in India . U/S 42, 43, 44 & 138
of Indian contract Act 1872.
Obligation – Debtor – I & II e.g. ‘X’ Debt =
A B C . ‘X’ can sue 1) A/B/C 2) AB/ BC/
AC 3) A+ B +C& if ‘X’ discharges A/B/C
the others will not be discharged .
U/S 138 If contract specified that redease of
a co-surety / partner will discharge the other
then others will be discharged even under
the Indian contract Act – 1872.

67
 MODULE - 09
CONCEPTS OF OWNERSHIP AND POSSESSION

Ownership .but which are not in fact being owned e.g.

Ownership is an akin conception of animals in jungle. (3) things which seem
possession ownership gradually developed out of incapable of being owned. E.g. living person,
it due to changes in the economic structure of corpses air, sea sun, moon. Etc.
society. The conception of ownership seems to
have come into being when the society changed  Characteristics of ownership
from nomadic to agriculture , it illustrate the (1) Right to possess – To have it with oneself
principle that the development of law & society therefore owner has the right to possess
are interconnected & therefore one can’t be fully the thing which he owns.
understood without other. (2) Right to use & enjoy the thing owned –
Thus ownership describe the greatest owner has right to manage the thing & to
possissional interest in a thing which recognized decide How to use it. But it may be
by the Natural Legal Person. restricted / controlled by the law. E.g. 1)
The ownership is advantageous than not use agreculural land for Non-
possession as it gives bundle of rights & interests agricultural without permission.
associated with it. As there is no any right (3) Right to exhaust / destroy the thing – to
without remedy therefore the battery of remedy use up, consume/finish off a product. E.g.
also attached with the ownership like claims, apples.
liberties right,power & immunities . (4) Right to Alienate.- Transfer / gift the
Salmond – ownership is the relationship property he owns subject to Nemo dat
between a person & any rights that are vested in quod non habet he who has not , can give
him. Therefore ownership – rights relation. not.
Mitland – The history of ownership (5) ownership is indeterminate in Duration . –
tressed in 1340 when this word used then in It is forever therefore once an owner
1583 this word crystalised in Legal system. always an owner.
In ancient time (1) only owner of The Perpetuity of ownership means that
property allow to give vote (2) the property on the death of the owner the property
recovered in war shared as per maximum shall pass on to his heirs.
property holder. In 19th centrury the institution of (6) ownership has a residuary characteristics
state changes & concept of ownership also owner can parted with several right in
changed . In the society welfare era society respect of the some thing owned.
become central focus through collective right
therefore as ownership is greatest possibility of Pollock – Test to ascertain the owner of a
possession therefore state empowers to put property is to look for the person having the
limitation on ownership therefore ownership not residuary ownership right such a person is
absolute one . e..g. not to use residential the owner even though the immediate power
premises for business. Work. to control & use in with others. E.g. Lease of
Thus social interest protected by putting property.
limitation on ownership. – It consists of tangible
/ material object such as land, chattlels etc. but  Definition of ownership
ownership not limited to such thing s only
therefore man can be owner of things. but he (1) Precian Civil code.- It is called the
may also own intangible interests e.g. patent, owner who is authorized with exclusion of
copy rights etc. others by his own power to make the
As per salmonds view the true subject- disposition by himself / through a 3 rd
matter of ownership always right therefore it person over a subsestance of a thing / right.
may be sometimes material object & some times (1) French civil code U/A 544 .- It is a right
a right. to enjoy & dispose of things in the most
Thus things can be the subject matter of absolute manner.
ownership depend upon the rules of each Legal (2) Austrelian civil code – It is an authority
system. E.g. (1) things capable of being owned to deal with the substance & a making
e.g. land etc. (2) Things capable of being owned use of a thing according ot once own

68
 will & to exclude every one else there personam while equity right enforced in
from. personam only .
(3) Gearies – It is a legal control over a
thing on the totality of its connection (III) vested & contigent ownership –
with ownership is bundle of right. Vested – owners title is already perfect.
(4) Holmes – The owner is allowed to Two sense- (1) Interest may be vested in
exclude all & is accourtable to none. possession when there is a right to present
(5) Dermburg - The rightof ownership is enjoyment e.g. car. ,(2) it is take effect on
the right of general dominion over a the happening of the future even which is
corporial things it secures every power certain / sure to happen.e.g. Death.
over the thing which according to nature
& law are possible.Criticism – Not This interest once vested is transferable
talked abourt incorporeal things. heritable & divisible.
(6) Holland – ownership has a propritory Contingent – when the owners title is
rights which are the extention of power yet imperfect, but is capable of being perfect on
of persons over the physical world. the fulfillment of some conditions.e.g. Marriage.
Thus we came to conclusion that An contigent interest take effect only on
1) In 18th century & 19th century the the (1) happening of a specified (particular)
concept of ownership acquire its uncertain event / (2) if a specified uncertain
base because of emergence of event shall not happen.
Natural right & fundamental right. This contigent is non-transferable ,
2) The state also acquire the authority invisible & unheritable.
or power upon the ownership of an Three types of contingent ownership .
individual & put limitation on (i) condition precedent.- Condition has to fulfil
ownership therefore absolute first for vesting ownership. But condition should
ownership denied & it regulated not be 1) imposable to perform 2) immoral & 3)
by law. opposed to public policy – void. (ii) Condition
3) It is not meant for the corporial subsequent – Condition is subsequent the
things but also incorporeal things establish immediately vests in the grantee &
as science & technology develop remaintion him till the condition is broken. It is
ownership enter into incorporeal also subject to above condition.(iii) conditional
thing therefore the relation only to limitation.- it is combination of both (I) divests
material thing is the falsity. an estate that has vested & (2) vests in another.
Therefore when condition precedent when
Whether right / property come first . combined with – condition subsequent gives us a
Salmond – Whoever possess thing is own the 3 rd category – conditional limitation.
right .
Cook J – person doesn’t own right he possesses (IV) Absolut & Limited ownership.
them as he own the true material object. Absolute – All the rights of ownership (
But debate of property/ right first is irrelevant & possession enjoyment & disposal ) are
not useful. vested without any restriction. Exception –
Paton – Ownership is incorporeal things restriction by law in interest of society.
advocated by him. Limited – limitation on use, disposal/
duration the ownership is limited
Kinds of ownership. ownership.
(I) Corporeal & Incorporeal ownership
Corporial – ownership of material object (V) Trust & Beneficial ownership.-Sir francis
,Incorporial – ownership of right . e.g. Bacon – a trust is the binding of conscience
Right in re aliena. of one to the dictates of another.
Author- 1) Trustee 2) Beneficiary.
(II) Legal & Equitable ownership. Trustee in eyes of law – owner. But
It is regarded under English law & not Beneficiaries in reality is the owner .
under Indian law Commen law courts – In U.K. – Beneficiaries can transfer its
Legal right , Chancery / Equity – Equity interest . India – Not.
right.Legal rights enforced in rem / in
I) Sole ownership & co-ownersip

69
 Sole – an exclusive ownership of an
individual as against the whole world . e.g. This doctrine embodied U/A 300A of
owner of land. constitution . The state can deprive private
Co-ownership – Two/more person have ownership on the basis of this doctrine even
interest in the same property / thing but though private individual has right to property.
there must be a common subject, comment 1) The state can acquire property on the basis of
right & more than one persons sharing the public interest
same right e..g partnership firm.
In U. K. co-ownership divided into two. Bela Banarjee case
I] ownersip incommen . – each co-owner Supreme court – ownership can’t taken without
possesses the property permie but not law & compensation should pay as per the
pertout i.e. per share & not whole. market value of such property. This doctrine
imported from U.S.A .
Characteristics –
1) It is exists only in equity. U.S. v. California
2) After death legal heirs entitled to share. U.S. A supreme court – It is the federal
government rather than state government has ful
II) Joint ownership- each joint owner has domention over resources of soil including oil &
possession permie & pertout i.e. per share the marginal sea.
& per the whole.
Doughlus J. in U.S. v. Taxas
Characteristics He retreated above case & gave reason for I. D.
1) derived title by co-owners from same
document. 2) The national interest , 2) National right
2) After death surviving co-owner becomes must be paramount & prevail upon rights of
sole owner – jus accrescendi. any units.
In India the distribution of financial
Development in India. resources based on this doctrine.
The concept of fundamental right & the eminent
domain resulted into change in concept of Since an ancient time man require certain things
ownership as per time society & Nation e.g. in for his life.
1992 the concept of privatization adopted by As per Hobbs – During the ancient time the state
Union of India. of society. – everything is mine therefore there
was chaos, abourt what is belongs to whom in
Marxism this condition the whoever stronger only become
Lenin – state of private ownership is right of owner of the thing in order to avoid this the
robber & private ownership is the theft of concept of ownership & possession came to be
property. emerged.

Mahtma Gandhi POSSESSION

He believes in the trusteeship towards the social Normally possession – ownership . Its
welfare therefore in 1975 by 42nd Amendment transfer is one of the chief method of transferring
word socialism’ introduced in the preamble. ownership . The possession of a thing is a good
title against the whole world except real owner
Excelwear v. Union of India. therefore it is said that possession is nine point of
Supreme court – upheld concept of socialism. the law. Long possession creates ownership by
There are exclusive economic zones like Nuclear prescription, possession is the basis / ground of
power, Electricity , Railway in which private obtaining certain legal remedies like possessory
ownership not allowed. remedy.
Thus it shows the concept of ownership In number of offences against property,
changes as per need of tim & society & Nation. possession becomes the main issue to be
determined.
Concept of Eminent Domain
It derived from word. Reasons of Protection of possession.
Domenium Imperium – sovereign Domain
ownership .

70
 (1) It helps a criminal law by preservation of a Thus as per him possession is matter of
peace as interference of possession almost fact therefore continuity of possession is
invites violence e.g. Ayothya crises. important than its acquisition. Here owns on
(2) It protected as a part of Law of tort.e.g. Defendant therefore the finder of goods has
Trespass. better title than other world.
(3) Possession as a part of Law of property.
E..g. Mortgage , Easement etc. (V) Pollack – A man is said to possession / to
As human life not protected without the be possession of anything of which he was
essential goods of existence like Land, Air, the apperent control / from the use of which
Water Light in the same way the legal system. he has the apparent power of excluding
Recognizes the possession as an essential good otheres.
of existence other wise there will be quarrel
between peoples. Thus as per him it is animus but it is defacto
Thus the possession means the control control( physical control ) necessary
over material objects of the rights. ingredient of possession.
Criticism – only control not but intention
Theories of possession. also important. E.g. He fails to give answer
(I) Savigney – He propounded his theory on when coolies carry luggage Thus only
the basis of two elements of possession. (1) salmonds & Holmes theory accepted to
Corpus possessionis – Effective control & describe possession.
(2) Animus Possidendi. – An intention to
hold materials. Following elements necessary to have
In absence of any of the above element there possession.
is loss of possession. (1) Control of subject matter.
Criticism – In actual practice possession (2) Intention to hold subject-matter &
continued although one of the element was (3) Power to excluides other.
lost / both. E.g. In eyes of law the master
was considered to be in possession of what Kinds of Possession.
was kept with his servant. (I) Mediate – possession exercised
through some body.&
(II) Iherings. – Whenever person looked like an (II) Immediate – possession exercised by
owner in relation to thing. He had possessor himself .
possession of it unless it was denied to bim
by rules of law based on practical Acquisition of possession
convenience . I] Taking – person who take possession
But he not discussed element of possession , without the consent of real possessor.
as per him possessor only in rightful owner II] Delivery – voluntarily give possession to
& this is advantage of possession. another. &
Criticism – some time law denies III] By operation of Law –Possession
possession. He said – It is exception. removed from one person & given to another
person by way of law.
(III) Salmond – He divided possession into (1)
corporeal possession – Possession of the Bridges v. Hawkesworth
material object ( Tangeable) & (2) Plaintiff gives possession of bundles of notes as
Incorporeal possession – Possession of he was 1st finder.
certain rights ( Intangiable ) e.g. I.P.R. sauth staffordshire water works company v.
This theory have great advantage over sharman.
savignyes theory as this theory recognizes Company gives possession because ring was
incorporeal possession also. found in company premises.
The incorporeal claim consists two Armorie v. Delamire
elements i.e. corpus & animus also. Chinmey boy get possession of jwellary from
goldsmith who refused to return it after checking
(IV) Holmes – To gain possession a man must those jwellary,whether real / not.
stand in a certain physical relation to the
rest of the world and must have a certain
intention .

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 MODULE - 10
CONCEPT OF PERSON
The rights are not only confirm on Re Dcan 1889 (Trust in Favour of animal)
living being but also an non living being only C. D. – The only effect of such provison is to
enforceability aspect become different – Natural authority the trustees , if they think fit to utilize
person enforce enforce his right by himself while the property in the way indicated therefore what
legal person enforce his right through the remains after spending / the whole , if unspent
member. will go to the testator’s heirs therefore private
Thus the persons are not only subject to trust for the benefit of an animals can’t be made.
right but also duty too. Grove v. Lawrence 1929 .
Salmond – Person is the any being to to Thus public charitable trust for the
whom the law regard as “ capable of Having “ benefit of a class of animal is allowed.e.g. 1)
rights & duties. panjrapole (asylum for crippled, weak /useless
 Criticism animals), 2) Bequest made for maintenance of a
What is about children ,lunatic ?- Having not home for stray dogs / broken down horses is
capable of rights. valid.
Persons. Thus a trust in perpetuity for an animal
(a) Natural – (1) Unborn and (2) Living – is invalid if it is a private trust.
a) Normal and b) abnormal Grove v. Lawrence 1929
(b) Legal corporation sole Corporation (The Beaumont Animal Benevolent society)
aggregate opposing for cruel sports involving animal .
Private trust * Pettingall v. pettingall
(A) Natural Persons Testator gave $ 50/years to trustees for the
(I) Status of animals maintenance of his favourite mare, to last until
The only natural persons are human mare’s death it is valid bequest.
beings Animals are not persons, neither natural /
legal . They are regarded as things . Animals Thus private bequest in perpetuity for animal is
may be te object of legal right & duties but invalid however a private bequest not in
animals themselves can’t possess right / duties. perpetuity & it is for public charitable trust
In oldest days, the law was cpable of whether / not in perpetuity are all valid bequests.
punishing animals they were considered to be May v. Burdett 1846
capable of sustaining duties & was therefore to If an animal hurts a human being / another
that extend a legal person. Modern law however person’s animal then the owner of the attacking
does n’t consider an animal of being capable of animal may be held liable.
possessing rights / law protects animals except Distress damage feasant.- If an animal trespasses
when tey becomes dangerous, in which case they upon a person’s property then the property
may be shot. holder may impound (detain) the animal until
e.g. (1) Society for the prevention of cruelty to damages caused by it are paid by the owner of
Animals & statute laws protecting animal. the animal .
Mohammed shafi Quresi case.
(2) In China the smugglig and/ killing of Giant (II) Status of Dead Men
Pada attracts the death penalty In law the dead are things & not
Law doesn’t allow any bond/ obligation between persons. They have no rights, duties & interests
men & animals when a man hurts an animal it is this can be studies under 3 headings.
regarded as a wrong to its owner/to human 2) Legal status regarding the forpse (dead
society rather than wrong to the animal therefore body)
man can’t be cruel to his own animal. 3) Legal status the dead man’s reputation.
National Anti-vivisection society v. I. R. 1928 &
Appelate Court – If for any reason the interests 4) Legal status of dead man’s property.
of animals conflict with those of human beings
then, the interest of the human heing will be 1) Corpse – A dead man’s corpse is not the
preferred. property of anyone . It belongs of neighter
Animal can’t be the owner of property it can’t to the dead man nor to his heirs therefore
own property even through a human trustee.

72
 any wrongrul dealing with it will n’t made to an unborn person. “en ventre sa
amount to theft mere”- child in the mother’s womb.
Williamss v. Williams 1682 . Thus property can be own by child in
C – It can’t be disposed off by will / by any other mothers womb.
instruments. However the unborn person’s
ownership is contingent on his birth as a
But today this treand is changed & it is possible living human being therefore to get the
to donate eye, skin etc. for medical purposes & property he must be born alive. Posthumous
for that perpose special statutes are made.e.g. child is entitled to his deceased father’s
The Bombay Corneal Grafting Act,1957 . estate provided he is born alive. If child dies
R.v. Stewart 1840 . in the womb, his inheritance fails to take
English criminal law ensures a decent burial for effect and no one can claim through him.
the body of a dead man. In law, it is thought reasonable that a
child who has lost his father shouldn’t be
A permanent private trust (perpetuity) for the further penalized by losing any interest
maintenance of a man’s tomb is illegal & void. which he would have secure had he been
However a public charitable trust for the born at his father’s death.
maintenance of all graves in a particular
graveyard is valid. George & Richard 1871.
A posthumous child is entitled to compensation
*Re Vaghan for the death of his father.
C. – A private trust which is not in perpetuity for U/S 416 of Cr.p.c. 1973 – pregnant women
the repairs of persons grave is valid. condemned to death can’t be executed until she
Advocate General v. Yousuf Ali. has delivered the child.
Agift in perpetuity for the upkeep of the tomb of
state chanda bhai was held to be a valid Gift In many legal system an abortion is a criminal
because it was given to a public charitable offence.
institution. R.v. Senior 1832
R.v. West 1848
2) Reputaton- R v. Ensor 1887 (Right to Willful/negligent injury inflicted on a child in
reputation etc deis with death of person.) the womb by reason of which it dies after having
Defaming a dead man is an offence only if been born alive amounts to murder /
it is an indirect attack on the family & manslaughter.
relatives of the deceased therefore rightto
sue is not of the dead / in his name but of Can child in mother womb sue:
the living descendants. Walker v. Great Nothern Railway 1890 .
Pregnant women get injured due to collision on
3) Property – The law permits desires of the the railway line there was negligence by railway
dead to regulate the action of the living. servant.
Salmond – for years after a man is dead his hand Railway out not under duty to protect / take care
may continue to regualate & determine the of child in mother womb about which they were
enjoyment of the property which he owned while anawere.
he was alive .
Thus is indeed true & a dead man’s Montral Tramway v. Levllie 1933
property can control the lives of the beneficiaries Child in mother womb can sue & compensation
who get that property after his death. E.g. of L1030 allowed.
Bequest – pay ‘x’ Rs 5 lacks if he marries before
the age of 24. (B) Legal Person
Meaning – It is any subject matter other than
(III) The legal status of an unborn person. a human being to which the law regards/
Dead man possesses no legal personality, attributes the personality.
but an unborn person can have legal rights &
lea personality. Therefore there is nothing in Chiranjit Lal v. Union of India.
law to prevent a man from owing property Supreme court – Corporation having right U/A
before he is born. E.g. A bequest can be 19 but not a citizen.

73
Thus only law creats the Legal Person & Similarly , even if all the member of a
confirms Rights & Duties on it. Similar to company changed overnight the company
natural person. remains the same legal person.

 Emergence of concept of Legal Person. (III) Limited Liability & therefore limited risk.
By development in Trade & Commerce A shareholder’s having liability limited
there were difficulties arose to the to the extend of his share / to the extent of
intercourse. Therefore concept of Legal the amount guaranteed by him if it is a
Person arose by which few persons come to company limited by guarantee.
gather fulfill all technicalities required then
Legal Person come into existence & it (IV) Transferability of shares leads to
become independent existed & named also, convenience.
it can own, dispose, possess property entered The freely transferable nature of the
into contract etc. e.g. the cases U/A 25,26 shares of a corporation is a great
shows that how the idols get Legal convinience to shareholder (investors) who
personality like Balaji, Renuka, can sell their shares in the market & get
Vaishnavidevi,Somnath etc & their Trust back their investment without going back to
affairs managed by the state. the corporation.
Thus this concept helps to protect the (V) Property rights can be enjoyed – companay
object of Legal system to manage the to hold, buy & transfer property in its own
relationship between person. name. The assets of the corporation don’t
Prof H. L. A. Hart – such a unit not only belong to the shareholders they have
over period of time & confirms being a indirect interest in the form of shares.
personality. (VI) Facilities of management.
R.D. Shetty case: The whole management is done by one
J . Bhagwati- Test of state U/A 12 skilled person / a small team of professional
it helps to increase production.e.g.
Duggit – State is biggest corporation. department of production , finance,
marketing , public relation, legal
Purpose / Merits of corporation. administration etc. It reduces burden on the
(I) Management of Common interest – If there members of company.
is a large number of persons coming (VII) Substitute for the trust company can be
together to do Business, it becomes very formed for not only professional it
difficult to deal with such joint ownership. purpose but also for society, charitable
E.g. 1) Manage their conmen interest enter /quasi -charitable purpose therefore it is
into contract, dispose of property, incur modern & convenient substitute for the
liability, to sue etc. trust.
Therefore by incorporation a personal it (VIII) Simplification of legal proceedings .-
is attributed to the “Multitude of persons” & Incorporation simplifies & cheapens the
there by is made possible to carry out their legal proceedings by / against the
common activities. corporation. E.g. it can sue, can be sued in
its own name.
(II) Perpetual succession leading to continuity. (IX) Advantage of the floating charge.
The coming, going, changing Dr, John Farrar – the motive for
increasing & decreasing of member in no incorporation is to take advantage of the
way affects the life of the corporation as in floating charge – It floats over the
partnership therefore there is a continuity. undertaking class of assets until an event
Thus member may come / go but occurs which causes it to crystallize,
corporation goes on forever. where upon it becomes a fixed charge .
Prof L.C. B. Gower Modern company Until then the company can dispose of its
Law.- case in which all the member of a assets in the ordinary course of Business.
company were killed by a bomb while at Therefore Banks & financial institution
general meeting, but the company was put pressure on Business to incorporate
deemed to survive. so that they can be guaranteed a floating
charge as a security over stock in trade &
Business debts .

74
(X) Development of commerce & industry –  Types of Corporate personality
It brings out a small portion of their
savings & combine together to form an (I) Corporate agreegate – The person come
enterprise. together to form company that bunch of
L.C. B. Grower – Great bulk of individual person is nothing but the corporate
enterprise is in the hands of large agreegate.
corporation in which many (II) Corporate sole.- when corporation get
individual(shareholders) have property existence by incorporation – corporate sole.
rights. It become (1) legal independent person in
In 18th century the Britis Empire the eyes of law therefore it has . (2) all
development & expanded through the liability of future circumstances &
enterprise. Todays world can’t be transaction.
imagined without IBM , Toyata, Ford ,
Boeing, coca-cola, sony etc.  Theories of Corporate Personality.
(XI) Capital intensive enterprise may be
undertaken. (II) Fiction theory – During pope Ivth Churches
A sole proprietor / partnership require lot get Lagal Pesonality the origin of this
of capital but corporation can do so as it theory is here.
can have a very large share holder Savigny – Besides the Natural priority right
membership e.g. coment manufacturor , of certain fixicious / artificial person . –
power – generation etc. therefore how Corporation.
modern shareholders not a quasi- partner
but he is simply a supplier of capital . Fixion – Imagination ,Artificial – Not
(XII) Reducing tax liability . natural, This leads to division as corporate
Salmond – Motive behind incorporation agreegate & corporate sole therefore we
is tax avoidance . Under system of must carefully differentiate corporation from
taxation the proportion increase in of tax its members.
payment increases with income &
decreases with decrease in income . Coke J – corporation refered as 1) Invisible
Dr. John Farrar.- The use of corporate , 2)Immoratal- never come to an end . & 3)
form is a useful means of spreading Resting only in the intendment of a law.
income amongst members of a family. It
is alo useful for spreading ownership of Excelwar v. Union of India.
wealth. Supreme court – As any body has right to
(XIII) A corporation being ‘rich’ can take up freedom of Trade & Business , they have also
social responsibility. right to close down that trade & Business.
Due to mass mobilization of resources , a Therefore question comes how corporation is
corporation is able to undertake projects immortal.
concerning improvement of society at This word used in olden days. When
large . they doesn’t imagine that closer of corporation.
William Gosset (General council for the Dart mount v. wood worth.
ford motor company)- The modern Marshall chief justice – Corporation is (1) an
corporation is in some respects a public artificial being (2) intangiable, (3) invisible, (1)
institution & is one of the key economic which exist only in the contemption of law.
unit of our society it holds power in trust Thus only law gave birth to corporation
for the whole community. . It has no will/mind/body organs, it work
Due to its big size & inherent financial through persons which created it.
strength the corporation is in a much Salmond – It is merely fixicious one .
better position to philanthropic & a This Legal Person not only enjoy interests &
developer of the society. E.g. Rural benefits but it also subject to duties & liability as
development, community social service, the Natural person.
sports sponsorship , Environment
protection, Resource conservation., (III) Concession Theory. – The corporation only
Import substitution , Emancipation of comes into existence through law. Law
women etc. recognizes only those objects which are
lawful. (Memorandum of Association)

75
 Thus as per this theory corporation doesn’t Which theory is proper.- Bracket theory is
came into existence on the basis of will of widely accepted as it has practical significance.
member but only law recognize. it. Thus law It helps to see who is really liable to fraud by
gives concession to corporation to come into lifting corporate veil because some time group
existence. take advantage / disadvantage of Business in
name of the corporation.
(IV) Bracket theory – Each Legal Person is
technical Legal Device to which certain Holdwarth – No theory has been adopted
rights accorded . properly, But more important is that consider
corporation as the natural person because not
Legal Device – putting persons group into only it enjoy right but also duty as similar to
bracket who wishes to form the corporation natural person.
& then given name to it.
Disadvantage / Demerit of corporation.
They loose their identity & new legal person There are some difficulties arises
immerged out. because of advantages of Legal
The importance of this theory is that Person.
corporation get independent personality which
helps to left corporate veil in case of determine In Re. Eutrope – Husband & Wife were
liability by removing bracket & held member shareholders & Directors also agreed whole
liable for his fraud. benefit to be transfer to Directors as the fees.
Thus this theory helps to impose
liability on its member who acted on behalf of This challenged on the ground that the
corporation , this theory more closer to Doctrine shareholder weren’t different than Director
of Lifting of corporate veil & having the otherwise it will amount to fraud on the state.
practical significance .
Kelsen – There is no difference between Legal Thus in following circumstances the lifting of
person & it members which help to held person corporate veil.
liable who acted wrongly on behalf of
corporation. (II) In the cases in which it become necessary /
relevant to analyze the characteristics of
(V) Reality theory corporation.
Girke – The group having a real mind real
will & real power of action. Damler v. Continental Rubber & Tyre company.
Thus even though corporation having (Enemy Company)
independent Legal Personality but real will
& power with its members . Therefore (III) cases in which the interpretation of legal
corporation is merely technical obligation / transaction makes it necessary
personification. to look at the human individual covered by
the mark of juristic person. &
(VI) Purpose theory – Law recognizes certain (IV) The cases in which the device of
purposes & interest of individual beings. corporation used fraudulently, in particular
for evasion of tax obligation.
Thus corporation only carry those
Business which are mention in the There are not Universal parameters to lift the
documents of it creation otherwise it will corporate veil it depend on facts & circumstances
be ultra virus therefore this theory not of the case. Thus the approach is to be case to
only recognizes personality but also its case basis.
purposes for which it is established.

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 MODULE - 11
CONCEPT OF TITLE
TITLES
Roman – Titulus, French – Titre. B] Bilateral – agreement voluntary will of two /
Salmond – Every legal right has a title i.e. certain more persons. E.g. contract, mortgage, lease 3
facts/ events by reason of which the rights has kinds of Agreement
become vested in its own. Therefore it is “fifth” (1) Valid – fully operative in accordance with
element of Legal rights. the intent of the parties.
(2) void – entirely fails to receive any legal
The title is the defacto antecedent of which the recognition.e.g. against public morality
right is the de jure consequent. Therefore if law (3) voidable - valid /void at the election of one
confers a right upon one man which it does not of the party to it.e.g. agreement by undue
confer upon another the reason is that certain influence, coercion, misrepresentation.
facts are true of him which are not true of the
other & these facts are the title of the Right.  Acts of the law.
Thus title means any fact which creates Creation , tranfer / extinction of a right
a right / duty. Bentham suggested term sinse by the operation of the law itself independent of
Dispositive facts, instead of title. & divide it into any consent on part of the person. E.g.
3 parts. 1) Vestitive facts,2) Investitive facts & Devolution / distruction of the property of a
3) Divestitive facts. person dying intestate ( without making will)

(I) Vestitive fact (II) Investitive facts (Titles)

1) it is a fact (something that has already Salmond – the Title is defacto……
occurred) which either creates destroys / Title – Right
transfers a right. 2) which determines positve Two kinds / types of title
/ negative the vesting of a right in its owner. (I) Original – Original title creates a right de
The vestitive fact is a generic term & novo i.e. new right is created.e.g. Build
includes investitive fact (titles) & divestitive House – original title.
facts. (II) Derivative title.- transfers an existing right
Vestititive facts may be looked at from to a new owner. It is not new right . It is
another prospective acquired by one & lost by other . e.g.
Vestititive facts. Buying existing house.
(I) Acts in the law (voluntary acts of An original & Derivative title, both
parties), Unilateral, Not sub other things have the same importance in the eyes of the law.
(II) Acts of the law (Involuntary) Bilateral
Sub to other – void, voidable, valid (III) Divestitive facts
Party’s dissent or other party’s dissent It either destroy right / transfer right to
someone else. It is a fact (situation / happening)
 Acts in the law. which shows law the rights gets transferred /
(1) acts of the parties / juristic act / legal powers. terminated. E.g. A-House- B.A divested of his
Act of party – expression of the will / intention right towards the House.
of person towards the creation , Two kinds of divestitive facts.
transfer/extinction of a right. E.g. contract , will (I) Extinctive – when they divest (take away) a
(2) There voluntary –with the consent of the right by completely destroying the right.
tranferor. E..g on payment of Debt. Right of creditor
destroyed..
A] Unilateral – only one party whose will is (II) Alienative / translative –
effective e.g. gift , will, etc. When they divest an owner of his right by
It is of two kinds. transferring it to some one. E.g. A – Sale
1) Unilateral not take effect if other party House to B.
objects. E.g. avoiding a viodable contract. Purchase is a derivative /extinctive title,
2) Take effect if other party doesn’t object e.g. but sale is an alienative title.
will.

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 MODULE - 12
CONCEPT OF LIABILITY
From the Hofeldian point of view there Sr. Point of Civil Criminal
is relation between right & duty. It is the No. Difference
established fact that the rights are sine quen 1 Nature Right in Right in
therefore person can’t enjoy his life without Persona. rem.
rights. 2 Nature of Civil remedy Penal
The value of rights & quality of the Remedy i.e. damages, remedy in
rights maintained by imposing the duty on others compensation, the form of
therefore others has to discharge duty in such a injunction or punishment.
way that it shouldn’t jeopardize the rights of any other
other. remedy.
If somebody doesn’t discharge his duty 3 Proceedings Civil Criminal
in diligent manner i.e. If there is breach of duty Proceeding Proceeding
then he is liable to pay damages. Thus liability is 4 Action By the By the state
the condition of the person who has committed a taken by wronged
wrong against others rights. whom? person
Salmand 5 Relevance Intention is Intention is
It is a bond of necessity that exists of Intention not necessary very much
between the wrong doer & the remedy for that relavent
wrong.
*Nature of Civil or Remedial liability
*Purpose of imposing the liability Ubi jus ibi Remedium i.e. whenever there is right
1. To avoid loss, damages from wrongdoer, there is remedy.
2. To ratify loss, damages from wrong doer Exceptions –
3. To get compensation from the wrong 1) Duties of imperfect obligations e.g.
doer. Limitation Act,
2) Some duties can’t specifically enforced
*Object of liability e.g. complete assault,
From above purposes we came to know 3) In some cases law awarded only damages
that the object of liability not only pay instead of specific performance of duty
compensation for loss suffered but also provide e.g. personal services.
the social security to each individual from wrong
doer & warn the prospective wrongdoer that they *Nature of Penal Liability
would be liable to compensation for their Actus non facit reum nisi mena sit rea – act plus
wrongful act by breach of duty. guilty mind leads to offence or crime.
Following are the kinds of act –
*Kinds of liability 1) Positive or Negative,
For every wrong there is liability there 2) Internal or External,
are two types of wrong 3) Intentional or Unintentional.
I. Moral wrong
Not actionable Out of these two liabilities in today’s
II. Legal wrong modern, developed society the civil liability
Actionable the legal wrongs are divided became more & more important.
into –
(a) Civil - they have remedial liability. *Tortious liability
1) Tortious wrongs, In civilized society each individual has
2) Breach of contract, right to enjoy his person & property and each
3) Breach of trust, individual has duty not to aggravate the others
4) Breach of equitable obligation person or property otherwise he will liability to
(b) Criminal – it has the penal liability. pay damages.
Prof. R. Pound has given three instances in
*Difference between Civil & Criminal which the individual is liable to reparation losses
Liability or damage of others.

78
 I. Intentional aggression upon person or I. Liability in relation to the wrong against
property of another unless he establish the person
justification of privileges e.g. PSI enters on 1) Defamation – it is intentional aggression
property without search warrant. upon person, his status and dignity
II. Negligent interference with person or therefore person suffered damages
property. wrongdoer held liable e.g. – Sharad
III. Unintended or non-negligent interference Pawar & Khairnar
with person or property of another resulting If person has some justification or
in damages e.g. – Hazardous Industrial privileges then he not held liable
activities. e.g. – MP’s of MLA’s.
Third category becomes more important Kind of defamation
in today’s modern life to impose liability not i) Slander (Oral) &
only on government but also on private ii) Libel (Written)
individual in order to protect the social security Exceptions
of society, which has ultimate object of liability. A. Raj Gopalan v. St. of Tamilnadu
As the State is biggest corporate & employer If defamation based on truthful evidence then
therefore in welfaric State it is duty to protect damages not allow.
social structure of society therefore it passes the Thus in case of defamation Prof. R.
social security legislation. Pound’s 1st contention followed.
E.g. – Workmen Compensation Act – u/s. 3(1) 1) Assault & Battery – Physical &
(a) it provides compensation for injuries arose Mental injury
out of & in the course of employment to the 2) Malicious Prosecution – wrongful
employee. and intentional sufferings.
But it causes some difficulty to provide
compensation therefore in - II. Liability in relation to Property – trespass
Saurashtra Salt Mfg. Case upon property
The Supreme Court laid down the Doctrine of Ryland v. Fletcher
Notional Extension – premises of the work (Water Reservoir case)
place extended symbolically up to the place Blackburn J. laid down the concept of strict
where injury occurred to the employee out of & liability – if the thing which was not naturally
in the course of employment, in order to held there which is bought by person if it is escaped
employer liable to pay compensation or damages and caused damages then he is liable to pay
to the employee. damages because there is one kind of lack of
BEST v. Mrs. Anglers duty.
(Compensation as per doc. Of notional Exception
extension) 1) Act of god (vis major) e.g. – natural
U/s. 3(1)(b) there are exceptions when employer calamity
not liable – 2) When plaintiff himself or third party
1) If employee not used safety guard, responsible
2) Not follow the instructions given by the These exceptions take away liability of
employer and displayed publicly on wrongdoer from compensation.
notice board This doctrine applied by Supreme Court
3) Employee was under influence of liquor. by convert it into absolute liability as follow –
These exceptions set free employer M.C. Mehta v. UOI 1987
from liability to pay compensation to employee. (Olium gas leakage case)
But at the same time by ESI Act u/s. P.N. Bhagwati J. – where an enterprise engaged
2(d) read with Sec. 51A, 51B, 51C & 51D in hazardous activities and harm result to any
diluted effect of sec. 3(1)(b) of Workmen one account of accident in operation of those
Compensation Act & it provides certain benefits activities then that enterprise is “absolutely
to the employee i.e. the injury benefits at the cost liable” to compensate to all those affected and
of employer without any exception. such liability no subject to any exception.
Thus it provides the security to the Thus supreme court evolved principal
worker by imposing liability on employer and of absolute liability by ignoring Ryland case and
converts strict liability into the absolute. evolve new law & new principle which could
meet inadequate problems of individual &
scientific development by ignoring old

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common-law doctrine as well as come out from Thus sustainable development achieved
the clutches of the foreign rules and laws to meet by making balance between development and
social needs of today’s life in modern Indian nature. The development can’t be achieved at
democracy. the cost of nature and social life
Thus Supreme Court held enterprise
liable absolutely as per its capacity & magnitude. III. Tortious liability of State
For sovereign function not liable but in
*Difference between Strict and absolute non-sovereign function liable.
liability Vidyavati v. St. of Rajasthan
Sr. Point of Strict Absolute U/a. 300 govt. held tortiously liable whether the
No Difference Liability Liability activity is sovereign or non-sovereign
1 Nature of Subject is not Subject is Khatri v. St. of Bihar
subject danger danger (Bhagalpur Blind case)
2 Nature of Compensation It is State liable to pay compensation to blind victims
compensation is ordinary depends Rudal Shah v. St. of Bihar
upon (Detained for 14 years in jail even though he was
capacity acquitted by the court)
and State liable to pay compensation of Rs. 35000/-
magnitude Nilavati Bhera v. St. of Orissa
of Art. 95 of International Covenant on Civil &
enterprise Political Right was referred by the Supreme
3 Exceptions Having Does not Court and held State liable to pay compensation
exceptions – having and Right to Compensation become
1) Act of any Fundamental Right u/a. 21 of the Indian
god (vis exception Constitution.
major) Bodhisattva Gautam Case
e.g. – Fundamental right can be imposed not only
natural against State but also against private party in
calamity order to pay compensation u/a. 21
2) When Chandrima Das case 2000
plaintiff Sagir Ahmed J. - fundamental right to get
himself compensation is also available to Foreigners u/a.
or third 21.
party Thus by numbers of decisions supreme
responsi court tries to protect the general social security
ble by imposing liability on wrong doer whether he
may be State or Private person and pay the
UCCI v. UOI 1991 compensation to the wronged party.
(Bhopal Gas leakage case)
Rangnath Mishra J. – M.C. Mehta case is IV. Liability for the act of Transnational or
massive obiter Decta because non-application of Multinational Corporation
rule to that cases therefore its decision became There is lack of definite International
‘inactive’. Therefore as per ‘Doctrine of Parent Law in respect of liability of Transnational or
patria’ he held govt. is liable to pay Multinational Corporation.
compensation. The General Assembly of UNO adopted
After M.C. Mehta case Parliament Charter of ‘Economic Rights and Duties’ on
enacted ‘Public Liability Insurance Act, 1991’ 12th Dec. 1974 – recognizes the rights of each
to pay compensation to all those affected from State to ‘Regulate and supervise the activities of
the activity of enterprise. It excludes worker as Transnational Corporation within its national
they got damages under Workmen jurisdiction and take measures to ensure that
Compensation Act, 1948 or ESI Act. such activities comply with its laws, rules and
Thus the social security provides to the Regulations and confirmed with its economic &
workers as well as general society at large by social policies’
imposing absolute liability on industry e.g. – But the developed countries like USA,
Nuclear Plant Rajasthan is closed because of UK, Federal Republic Germany and Japan did
leakage of nuclear radiations on 11th Feb. 2002. not sign this charter.

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 BIBOLIOGRAPHY

1. Bodenheimer Jurisprudence – The Philosophy and Methods of Law, Universal

Law Publishing, 1996.

2. Fitzgerald, (ed.) Salmond on Jurisprudence, Sweet & Maxwell, 1999.

3. W. Friedman, Legal Theory, Universal Law Publishing, New Delhi, 1999.

4. H.L.A. Hart, The Concept of Law, Oxford University Press, ELBS, 1970.

5. Hilaire McCoubreyand Nigel D. White, Textbook on Jurisprudence, Oxford

University Press, 1999.

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