i

BACHELOR OF GENETAL LAW (B.G.L)

FIRST YEAR

COURSE – I : LEGAL THEORY (JURISPRUDENCE) AND

COMPARATIVE LAW

SYLLABUS

1. Nature and definition of Jurisprudence

2. The various schools of Jurisprudence and their Methodology

3. Nature and definition of Law Different kinds, classification. Imperative

theory of Law Constitutional Law and International Law their nature.

4. The concept of State and sovereignty – general outline.

5. Sources of Law – Legislation, precedent and custom.

6. Administration of Justice.

7. Justice concepts of rights and duties, title, persons liability, ownership

possession, property and obligation.

8. Comparative law, (Origin and development, Nature Types of Composition –

Aims and purposes – utility of the study of Comparative Law)

Books Recommended003A
1. Salmond – Jurisprudence

2. Paton – Jurisprudence

3. M. David – legal Theory – Part I & II

4. Mukherjee – New Indian Jurisprudence

5. G.C. Venkata Subba Rao – Legal Theory

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BACHELOR OF GENETAL LAW (B.G.L)

FIRST YEAR
COURSE – I : LEGAL THEORY (JURISPRUDENCE) AND
COMPARATIVE LAW
CONTENTS

Lesson no. Lesson Page no.

1. Jurisprudence and Social Science 1

2. Schools of Jurisprudence 6

3. The Theory of Law 13

4. Constitutional Law 19

5. Kinds of States 24

6. Administration of Justice 39

7. Sources of Law 48

8. Legal and Formal Sources 53

9. Rights and Duties 70

10. Persons 78

11. Titles 85

12. Property 91

13. Ownership 101

14. Possession 106

15. Liabilities 113

16. Obligations 122

17. Meaning and Nature of Comparative Law 127

18.
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Origin and Development of Comparative Law 130

19. Value Purpose and uses of Comparative Law 134

20. Weakness of Comparative Law 135

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LESSON-1

JURISPRUDENCE AND SOCIAL SCIENCES

STRUCTURE
1.1 INTRODUCTION
1.2 JURISPRUDENCE AND OTHER SOCIAL SCIENCES
1.3 SUGGESTED QUESTIONS
1.1 INTRODUCTION
The word jurisprudence denotes knowledge of law. The word jurisprudence is
derived from the Latin word jurist means law and prudential means knowledge. as
jurisprudence means knowledge of law, it is necessary for us to understand the nature of
jurisprudence and thereafter the value and purpose of studying jurisprudence along
with its definitions. Salmons has put it “jurisprudence is the name given to a certain
type of investigation into law, an investigation of an abstract, general and theoretical
nature which seeks to lay bare essential principles of law and legal systems.” In the
same way other eminent jurists have also made attempts to explain the nature of
jurisprudence according to their own views about the subject. It is a subject in law which
is different in its kind from other legal subjects because jurisprudence is not concerned
with set of rules derived from any authority for solving problems as in any other legal
subject. It is not concerned with set of rules as laid down by authoritative sources for
solving given problems. This gives the jurist liberty to deal with the subject in his own
personal way; Further, the method of enquiry in jurisprudence is different from that of
other legal subjects, In jurisprudence we are concerned with the nature of legal rules,
legal concepts and legal systems, whereas in other legal subjects we are concerned with
applying rules already made for solving given problems.
From the foregoing reasoning, it is clear that jurisprudence is concerned with
basic features of legal system and to find out the authoritive sources of law and the
working of legal systems. It is also concerned with various other related matters like the
method of codification pros and cons of codification and the value of judicial precedent
and the method of judicial reasoning. Further, it is also concerned with analysis of legal
concepts like right, duty, intention, negligence, ownership, possession etc. Such analysis
of legal concepts, are necessary to understand their meaning and thus help to solve
every day problems. Jurists by such analysis are able to solve every day problems.
Jurists by such analysis are able to clear off confusions arising out of problem created
by language. Further jurisprudence is not concerned with law as such, it has a role to
play in the society in so far as laws are created and enforced for regulating external
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conduct of man in the society; a civil society can be only because of its laws. ‘For that
purpose, it is necessary for us to understand how the law is created and enforced and
the influence of social conditions upon law, jurisprudence deals with all these aspects
and relations in society. It is clear from the aforesaid enunciations that jurisprudence is
concerned with a type of investigation into law in a general way about the essential
principles of law and legal systems.
Having seen the nature of jurisprudence, it is necessary for us to understand the
value of the study of jurisprudence. It may be observed that it is a subject without
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applicability. All other legal subjects are applied by judicial tribunals or courts for
solving problems whereas jurisprudence as such is not applied for solving any problems.
Then it may be asked what is the use of studying such a theoretical subject like
jurisprudence. It can be answered by saying that a subject can be studied by a person
for the reason that it has a fascination for him and in the same way a jurist may
investigate into the law for the pleasure which he derives from it. Research in
jurisprudence has repercussions on other social sciences as well as on political and
social thoughts and ideologies. Further it is not a subject without practical use. A jurist
who makes investigation into law is able to have a general idea about the whole subject.
Such generalization about a subject is a mark of progress. In law too, generality can
mean improvement. There results obtained by such researchers would enable the
people in all walks of life to make use of the same for the purpose of improving the
society in all its aspects. One more value can be mentioned with regard to study of
jurisprudence. This subject has an educational value wherein the legal concepts are
legally and logically analysed and a person who studies, jurisprudence sharpens his
technique of analyzing any problem placed before him. This helps a lawyer to get over
lawyer’s occupational vice. As put by Salmond it helps for proper understanding of social
realities and function of law in society. Further, for proper grasp of the ideas about
various legal concepts like criminal law and contracts it is essential to have knowledge of
criminology, psychiatry and economic theory etc. This makes jurists not only to look
backward as was done previously in the past but also forward and sideward and around
him as solutions to legal problems must be found by consideration of present social
needs rather than those of the past.
Having understood the nature, value and purpose of studying jurisprudence, it is
necessary for us to find out a definition for jurisprudence. The word jurisprudence, as
already explained denotes knowledge of law. The definition is not so simple as it appears
to be as there are as many definitions for jurisprudence as there are jurists. It may not
be possible for us to go in extenso with regard to all definitions but confine ourselves
with the views of leading jurists for the present.
The way for definition of jurisprudence was prepared by the well known leading
jurist Ulpian. As described jurisprudence as the knowledge of things, human and
divine, the science of the just and unjust.” He conceived jurisprudence as philosophy
and so, this definition is too broad and takes in its fold all the other social science like
theology, ethics, philosophy etc. For the above said reason it is not an acceptable
definition of the subject in view of the nature of jurisprudence. Having rejected the
definition of Ulpain, the definition as laid down by Salmond can be considered. He has
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described jurisprudence.” By the term Civil Law, he means that jurisprudence is
concerned with law as it is existing in the society, that is law of the State. Here the term
Civil law is used in a generic sense to mean the law made by the superior political
authority to control political inferiors. In other words, he means that the principles
recognized and applied by Courts in the administration of justice. Further, by using the
word civil law as the law of the State, he excludes the other rules which regulate human
conduct in Society, viz rules emanating from theology or ethics. Though the laws of
moralists are man made and they are existing in society, jurisprudence is not concerned
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with moral rules. It is concerned only with rules derived from authoritative sources as
recognized and applied in the process of administration of justice. Further, he also given
emphasis to the fact that jurisprudence is concerned with first principles of civil law. By
the term first principles, he means that jurisprudence is concerned with fundamental
principles of positive law and not with concrete details about the various departments of
law. Here it may be mentioned that positive law has the same meaning as theory of civil
law. One more point given importance by Salmond in his definition is that the subject is
a Science. He calls it as a science because, the legal rules are systematically analysed,
classified and tabulated while dealing with the subject. A subject which can be analysed
as classified then is a subject of science and its study is a scientific study. From the
above it is clear that since jurisprudence is concerned with analysis and classification of
results of investigation of law and legal systems it is a science.
Having seen the definition that of Salmond, it is necessary for us to refer to
another definition that of the eminent jurist Austin. He describes or defines
Jurisprudence as “Philosophy of positive law”. Though he has described jurisprudence
as concerned with positive law, i.e. law of the State as described by Salmond yet the
term philosophy used by him in describing the subject is somewhat misleading. The
term philosophy refers to the most-general theories of things, both human and divine,
while in jurisprudence we are only concerned with man made law and there is no place
for divine or moral rules. For the above said reasons, the definition of Austin is not an
acceptable definition.
Last but not least, one more definition by Holland is to be considered. He
describes or defines jurisprudence as “formal science of positive law.” This definition of
Holland is almost akin to that of the definition of Salmond. Holland also brings out the
idea that jurisprudence is concerned with positive law or civil law. He concurs with
Salmond. The definition is in line with that of Salmond’s definition when he defines
jurisprudence as a science. Salmond described jurisprudence as concerned with first
principles of civil law. Holland has described it as a formal science. By the term formal
Holland means that the subject is concerned with the rules generally recognized as
having legal consequences without going into concrete details.
The above definitions as laid down by eminent jurists met with serious criticisms
in the hands of other jurists like Professor Gray and others. Yet, whatever may be the
criticisms, the definitions of Holland and Salmond brings out the idea that jurisprudence
is concerned with the fundamental principles of law legal systems or a scientific study
without going into the concrete and practical details of the different departments of law.

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Salmond makes a distinction between general and particular jurisprudence. For
general jurisprudence he means that the subject is concerned with principles and
notions and distinction common to all systems of law whereas particular jurisprudence
is a science of any one of such systems of law. In these lessons we are only concerned
with general jurisprudence which deals with the fundamental principles underlying the
subject matter of study.
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1.2 JURISPRUDENCE AND OTHER SOCIAL SCIENCES
Man is gregarious by nature and he has also earned the name as social animal
which connotes the idea that every individual has to live in association with the other-
human beings. In such a situation, man cannot live alone. An individual cannot do
without the family and in like manner the family forms part of larger society and no
society can continue without some uniform practice and habits of life. There must be
rules and regulations giving liberty as well as imposing constraints to achieve the aims of
the society and maintain peace and order. For the above said reasons, the mutual
relations that grow up among human beings are the very bonds of a society. Those rules
which regulate such bonds in society can be made a subject matter of a systematized
study. Such of systematic study when properly co-ordinated becomes a distinct science.
A science which considers man as a social and spiritual being and deals with his
activities may be designated as a Social Science.
A social science is rather different from a natural science. A natural science is one
which deals with man as mere physical body without reference to the social nature or
other related factors which regulate the external and internal conduct of man in the
society. Natural sciences deal only with man and nature as natural phenomena and
they project what actually happens in a given set of circumstances.
From the above distinction between natural and social sciences we are able to
classify jurisprudence as one of the social sciences as it deals with the conduct of man in
society, and such principles which are recognized and applied by Courts in the
administration of justice. Just like in other social sciences, in jurisprudence also it is
necessary to answer the purpose of the existence of law and the method of making law
to regulate society. in that tense, jurisprudence has legal significance in relation to
society. It is connected with all other social sciences in one way or another. By putting
it to the test, we would be able to understand that law has close connection with other
social sciences like economics, sociology, politics, legislation, ethics and theology.
In economics we are concerned with the provision of material ends of the
individual and of organized groups or to put it into simple language a study of satisfying
wants, production and distribution of wealth. There is very close connection between
economics and jurisprudence. In fact, great revolution was brought into existence by
Karl Marx by bringing into existence the relation between law and economics. The
production and distribution of wealth has to be regulated by rules which are enforced if
needed by the courts of justice.
Jurisprudence has also close connection with that of an other moderate social

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science viz, sociology. Sociology makes an attempt to study the thoughts and actions of
human beings their social development in all aspects, like religion, climate, faith, custom
etc. And it’s rules and regulations which give effect and enforcement to the principles
and norms laid down by the sociologists for improving the social conditions in society.
Jurisprudence is very closely connected with political science which deals with
people and their government. In political science we study the relations between men
and their Governmental organizations and how it should be regulated for which law is a
necessary ingredient. In that context, law it closely connected with political science in
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bringing into existence governmental organisation and determining relations between
men and their governmental organizations.
No explanation is necessary as far as the relationship between law and legislation
because one of the ways of bringing into existence or modifying or repealing the existing
law is legislation. In that context, Jurisprudence is closely connected with that of
legislation.
Ethics which is a social science deals with principles of good conduct and which
moulds the internal and also external conduct of the man cannot survive except its
norms are enforced by rules formulated by a political authority. In this sense rules of
ethics for their enforcement depend upon laws which are the subject matter of
jurisprudence. Similarly the principles of Theology is also another social science in which
the principles inculcated and given as external principles without any question of being
changed by human being are dealt with and backed with definite sanctions in case of
breach of those rules by laws made by the state.
Yet another social science maybe taken into consideration i.e. psychology. It deals
with man’s mental state and process of thinking, his emotions, thoughts, reactions to
sensations. These various activities of man’s mental state is responsible for certain
external conduct of a person. In that process crimes may be committed because of the
mental process of a person. In such circumstances, it is necessary for a jurist to analyse
the mental process of the man who has committed an act, and in that context.
Psychology has close connection with jurisprudence. The science of penology is helped
by the knowledge made available by psychological research and experimentation.
From the above discussion it is clear that jurisprudence is not only related to the
other social sciences, but they are inter-dependent in the sense, the rules of law are
drawn from the norms laid down by the social sciences and the social sciences are alive
because their norms are thus enforced by law.
1.3 SUGGESTED QUESTIONS
1. Define ‘Jurisprudence’
2. What is the difference between Jurisprudence and other social science.

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LESSON-2

SCHOOLS OF JURISPRUDENCE

STRUCTURE
2.1 INTRODUCTION
2.2 ANALYTICAL SCHOOL
2.3 HISTORICAL SCHOOL
2.4 PHILOSOPHICAL SCHOOL
2.5 SOCIOLOGICAL SCHOOL
2.6 THE REALIST SCHOOL
2.7 COMPARATIVE SCHOOL
2.8 SUGGESTED QUESTIONS
2.1 INTRODUCTION
The evaluation of modern jurisprudence lie buried back to the period of the
Middle Ages and can be safety stated that it has taken its birth in the 17th century. In
the wake of the Reformation and the liberation of individual conscience human reasons
were released from the bondage of medievalism which set up natural rights of
individuals against ‘Divine’ right of the state. In this context, jurists studied law from
different angles. Salmond observes; “Hence various theories of law advanced by legal
theorists are of particular value for our investigation and also serve to emphasize the
different facts of law and so build up a complete and rounded picture of the concept.”
Some of the eminent jurists tried to define law with reference to state and
distinguished it from other related phenomena. Others try to define law, from the angle
what law ought to be rather than what is it. Yet other jurists stressed the function of law
and describe the functions as it works in actual practice. There appears to be some
conflict between such theories but these theories are complimentary rather than
opposed. The dogmatic insistence of the jurists that there is one and only one road to
truth has tended to obscure this fact. Salmond has observed ;Jurisprudence in the
specific sense as theory of philosophy or law is divisible into three branches.” He refers
to three schools of law i.e., Analytical, Historical, Ethical or philosophical. In this lesson
we shall discuss the sociological and the comparative schools also.
Sometimes the schools of jurisprudence are called analytical jurisprudence.
Historical jurisprudence and so on You must not think that there are different kinds of
jurisprudence. There is only one jurisprudence, the science of law but there are many

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approaches or methods of studying that science of law. These schools indicate for us the
method of study they have chosen. The school is called by particular method, only
because that method predominates in that school. They do take note of historical facts
and social conditions also.
2.2 ANALYTICAL SCHOOL
This school is also called as imperative School, positive school, English school or
Austinian school. The founder of the school is Austin and that is the reason that this
school is also called as Austinian school. But the full credit shall be given to Jeremy
 7
Bentham as the founder of this school. He devoted almost his whole life to writing rather
than publishing his work. His work reached public notice only in the year 1945 and this
work “the limits of jurisprudence defined”, written in 1882 reveals how much of Austin is
due to Bentham, Bentham’s work depends upon the doctrine of utility and thereby he
emphasizes that whenever law is made it should improve pleasure and reduce pain and
he wished to test every law and see if it led to the greatest happiness. He analyses the
legal terms and attempts to show what in fact they mean in the field of practice Austin
followed Bentham and took the tool of analysis and thereby successfully brought into
existence his school of thought. Austin considers that law is imperative or command
emanating from the state. That is the reason this school is also called as Imperative
school. He says that jurisprudence is concerned with law as existing in the society and
not with the past or future of law and that is the reason this school is also called as
Positive school. Austin is concerned only with mature systems of jurisprudence of
modern societies and proceeds to analyse its basic concepts and to classify them in a
scientific manner. As this school is concerned with analysis it is called the Analytical
School. Analysis reveals Austin’s foundation to be rather unstable. Firstly, there is no
universal rules of law; secondly, there are few concepts which are common to all legal
systems and as on today from such systems if universal principles are to be drawn is to
run into danger because research has shown that there are no concepts which are
common to all legal systems. Even the concepts which appear to be uniform or universal
is based on narrow views of science of law.
Austin did not analyse problems in depth though he believed that the chief tool of
jurisprudence was analysis and it was considered that it was possible to solve all legal
problems by deductions from actual rules existing in mature jurisprudence. Austin
considered further that if there is no state there is no law and the law is the product of
the State and the hallmark of law in the enforcement by the Sovereign. Austin being a
positive defines law as ‘a command of the Sovereign’. There can be no law or a stage
organisation without a sovereign and conversely the absence of positive law is a clear
indication of the absence of a sovereign or an organized state. Naturally several attacks
have been made against this definition of law by Austin and the Analytical school. The
chief criticism is that Austin’s definition merely emphasizes force of the state and does
not take note of its ethical content. This theory also refuses the name of law or rules
which are generally legal i.e. customary law, international law and constitutional law, as
none of these rules originate from a sovereign, to define law as command can mislead us
in several ways. Apart from criminal law, which is in the nature of commands, there are
certain branches of law which empower people to achieve certain results which are
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enabling and beneficial provisions rather than commands. Further, the term command
suggests an existing personal commander but in modern legal systems. It is impossible
to identify a personal commander in that sense.
The Analytical School is typically an English school Austin has forgotten that the
bulk of English law called Common Law has been created not by legislation but by the
decisions of Courts.
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The method adopted by this school to study law and legal systems in order to
formulate juridical theories is one of analysis. They analyse a concept into its various
ingredients such as the rules that make up the concept, the sources of their power, the
sanctions behind them and fundamental principles underlying them.
Whatever may be the criticisms against this school yet the credit goes to this
school in unraveling the confusion surrounding the concepts of law, to highlight the
salient features of a legal system and to furnish us with an insight into the nature,
functions and operation of law. This school has been responsible for further work in this
field by other eminent jurists like Kelson who propounded the Pure Theory of law.
2.3 HISTORICAL SCHOOL
This school considers law in direct relationship to the life of the community. The
18th century was an age of rationalism and the writers began to emphasize the spirit of
the people, the volkageist, Savigny started the historical school. This school posing the
question how did law come to be and answer by saying the law evolved just like language
by a sole process as a peculiar product of a nation’s genius. The source of law is not the
sovereign. Law is found and not made. Further, he says law is independent of political
authority and it is the product of the society and as such no organized society is
necessary. This school also emphasizes the fact that law rests on social pressure and the
typical law is a customary rule. The sum and substance of this school to the problem of
the boundaries of jurisprudence is that law cannot be understood without the
appreciation of the social milieu in which it is developed. The development of law is
connected with the characteristics of the people. This school has to be differentiated or
distinguished from legal history. Legal history and historical jurisprudence are not one
and the same. Legal history deals with the historical process whereby a particular
system has grown to this modern level whereas in historical jurisprudence, we are not
concerned with the history of any system but of the principles and concepts of that
system e.g., in historical jurisprudence, the study pertains to development of legal
concepts like property contract, possession, ownership etc. Whereas in legal history the
study pertains to how the law of property, contract, ownership or possession was altered
by authoritative source. But, there is close connection between history while dealing with
historical jurisprudence. In this connection, it is necessary that the historical method
must be freed from exaggeration. If it is to play its true part. It should recognize that all
laws are not based on instinctive sense of what is right possessed by any community and
that rules are also developed consciously as the evolution of customary rules is so slow
that it cannot keep pace with the rapid change taking place in a dynamic society. It
should also recognize the work of the judge and jurists which it failed to recognize or
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treated lightly. The historical method in jurisprudence, therefore, should be
supplemented by a critical approach based on philosophy of law and also the analytical
approach so that correct perspective maybe maintained.
The historical school studies law in a time sequence, tracing their evolution and
development from primitive times to modern times. In their study also take note of legal
history in their social back ground in order to propound their theories and formulate
their definitions.
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Eminent jurists like Sir Henry Maine supported this school. In fact, Sir Henry
Maine occupied the chair of historical comparative jurisprudence in Oxford and he
published various books like ‘Ancient Law’, ‘Village Communities’, ‘Early History of
Institution’ etc, based on historical study of legal systems. The achievement of the
historical school consisted in over throwing the dominant rationalist tendency in
jurisprudence and substituting in its place an empirical tendency which was started by
the analytical school of jurisprudence which had nothing to do with historical school. Sir
Henry Maine while recognizing the historical approach to the study of law, insisted that
in static and simple societies, the rules of customary law may be sufficient but as we
penetrate into the late Middle Ages and the Modern Ages, we find every where progress
in all kinds of knowledge bringing along with it changes in social conditions which
results in a multitude of novel problems cropping up. The increase in population has
brought about its own problems. A society then cannot depend upon customary laws for
resolving its problems, so laws have to be made by conscious effort. Law therefore is
based not upon the conviction of a people but upon the will of a people to make laws.
I would like to further add here that there are many laws which are cosmopolitan
in nature. An example of their would be international law and mercantile law and laws
of aviation. Those laws are not based on the conviction or will of any one particular
nation. If we look at the law of slavery which was a very vital part of the legal system of
any country even as late as the beginning of the 20 th century surely we cannot uphold
Svingy’s thesis that those laws are based on the conviction of people as to what is right.
2.4 PHILOSOPHICAL SCHOOL
This school is also called at Ethical school or Metaphysical or Law of Nature
School or the Teleological school. The school propounds that in reality law consists of
rules based on reason and nature. The central notion is that there exist objective moral
principles which can be discovered by natural reason and that ordinary human law is
only true law in so far as it conforms to these principles. This school concerns itself with
law in relation to certain ideals which law is meant to achieve. This school is concerned
with “What should be the ideal end of law that should guide us in developing the law.”
The attractions of this theory are self evident. This school investigates the purpose of law
and the measure and the manner in which that purpose is fulfilled. This school seeks
answers to the problems of validity of law and ultimately stresses that law is intimately
related to justice. There is close connection between law and justice. This school brings
out close relationships between law and Ethics. This to some extent is opposed to that of
Analytical School, but we can see today that even the most positive principles of the
analytical school do not succeed in separating the law that is from ethical elements.
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Salmond points out that philosophical jurisprudence is the common ground of moral
and legal philosophy of Ethics and jurisprudence. Law is the instrument by which the
individual will is harmonized with the general with of the community by delimiting the
sphere of permissible activity of each individual. In Ethics, the individual will is
moulded in the path of virtue. Both law and ethics aim at achieving perfection of human
being. One moulds the external conduct and other the internal conduct of the person
and in that process ethics and jurisprudence meet at the point of achieving perfection of
human being, In realizing this ultimate object jurisprudence becomes a means.
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Hugo Grotius is regarded as the father of philosophical jurisprudence. In this
book on “Law of war and peace” (De Jure Bellieect Pacis) he brings out forcibly the idea
that a system of natural law may be derived from social nature of man. he considers that
certain basic principles are common to all human beings and they originated in right
reason. He built up the entire body of law of war and peace on that basis.
Another leading jurist belonging to this school is Immanuel Kant who brings out
the difference between ethics and jurisprudence and ultimately points out that ethics
aims at elevation of man’s inner life while law seeks to regulate his external conduct.
According to Kant an Universal law can be derived from the entire body of law existing in
the society. The Universal law, acts externally in such a manner than the very exercise
of the individual will may be able to co-exist with freedom of others.
This philosophical school was also supported by Hegel’s evolutionary theory. he
demonstrates that legal order comes into existence by a synthesis of conflicting egos in
the society. This is in consonance with that of his doctrine of dialectical process.
A discussion on the ethical school will not be complete if Bentham’s contribution
is not mentioned. In England he is said to be the father of this school. He studied law
from the point of view of “its ethical significance and adequacy.” Law to him was a
means to an end, the end being, “the greatest happiness of the greatest number”. This
happiness he said could be achieved by promoting justice in society. So law is the
means and justice is the end and so there is a close relation between law and justice.
Therefore he held that you must study law only in terms of justice. So if laws are found
to be inadequate, there should be reforms of law, No wonder Bentham is considered as
the greatest architect of the modern welfare state. In England reforms of law especially
in the field of social legislation was due to Bentham and his followers.
2.5 SOCIOLOGICAL SCHOOL
The relation of the individual to the society and to the state has been often
interpreted at different times. The present century is characterized by the tendency
towards uniformity of various schools of jurisprudence. In the Greek civilization and
philosophy the individual was virtually merged order which fixed his class and
functions. But in the Roman period, individualism asserted for some time legally and
politically by taking part in the legislation and government of the society. The recognition
of the principles of individualism in jurisprudence is supposed to have been secured by
the law of Nature and enquiry. But however a backward movement was set on foot in
the Middle Ages when domination over secular method passed from the hands of the
secular emperor to the Head of the Church. The individual had to hold his liberty,

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opinion, faith and conscience at the mercy of Christian clergy and their organizations,
However, with the efforts of the leaders of the Reformation and of the jurists and
philosophers of the 17th and 18th centuries the cause of individualism and nationalism,
was not given up and found expression in the legal reforms of that time. Various
theories were evolved to recognize individualism and nationalism for e.g. Law of Nature,
Social Compact, Formalism etc. But the defect was that the individual was placed
uppermost and the society was held to be a mere aggregate of individuals. But this trend
changed to some extent by the organic theory and by this process a transition came into
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existence from the age of individualism to that of solidarism and collectivism at different
phases. At the same time individuals are regarded by the jurists of this period and of
these theories as self-bonded servants of the state for the furtherance of its purpose to
realize the moral order which is the perfection of communal life. This was further
developed by one Hegelian Trendelen Burg. According to him, the law is connected with
ethics as a means to an end. Law and morals seek to control and guide the objective and
subjective volitions of individuals so that they may together subjectively lead all men to
an ethical order.
So far what I have given in a historical background which is not very important
for a beginner. Suffice it to say that at the end of the 19th century and the beginning of
the 20th century jurists everywhere began to think of law not in terms of the state or
sovereign, not in terms of a people’s conviction of what is good or in terms of people’s
will to make law, not in terms of its ethical content, but in terms of the wants, interests,
desire and separations of human beings in society, According to Roscoe Pound who is
the modern pioneer in this field of thought, law is ‘social engineering:” and the purpose
of law is to satisfy the wants and desires of the individual in society. Ethic, another
exponent of this theory, believed that where the wants and desires of humans is society
are satisfied, there will be social solidarity in society so that peace and order may prevail
which alone will bring about a stable government.
So in the final analysis laws must establish social solidarity. They must maintain
social solidarity and promote that social solidarity. They also believe this can be
achieved by two means, by the method of reward and the method of coercion. By reward
it means keeping all above economic wants and the method of coercion is the method of
punishment for the recalcitrant minority who disturb the social solidarity in a society.
Though society as a whole is given more importance, the individual’s wants,
needs and aspirations are to be satisfied for it is the individual in a society who if
dissatisfied will create chaos and confusion. So Law is an instrument or means of
satisfying human needs in society. Laws will change as the needs and desires change
and law will have to keep pace with the changes that take place in society and the
changing needs of humans in society that is exactly why. Roscoe Pound call law as
”social engineering”. In the light of this study of the sociological school, law is a living,
ever changing and growing. They state “The center of gravity of legal development is not
in legislation nor in juristic science nor is judical decisions, but in society itself.”
Another thesis as to why there should be social solidarity is, that man has to live
in society, as he is not an isolated individual he is “wedged, enrolled, embedded into so
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many associations that life apart from them would be unbearable.”
According to Roscoe Pound society can be organized and regulated. In order to
carry out the process of social engineering Roscoe Pound classifies various interests
which are necessarily to be protected by the law. He divides interests into Private, Public
and Social interests. For protecting these interests and process of making law for that
purpose he lays down jural postulates. e.g. a) one should be able to appropriate for his
own use what he has created b) that others should not commit any aggression against
him c) that others will perform their act and will not expose others to any injury
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unreasonably d) that the people with whom they live will carry out their undertaking and
that too in good faith e) that he will have security of job f) that the society will bear the
burden of supporting him when he is old and g) that the society will bear the risk to the
individual due to unforeseen circumstances. The above enunciation clearly establishes
the sum and substance of the views of sociological jurists and approach of sociological
school of legal phenomena.
2.6 THE REALIST SCHOOL
There is yet another school that is prevalent in America, This school is called as
Legal Realism. This school also like positivism looks on law as the expression of the WILL
of the state but see this as made through the medium of the courts. According to this
school, law is not made by legislation. But all law however made is recognized and
administered by the Courts and no rules are recognized and administered by courts
which are not rules of law. It is, therefore, to the Courts and not to the legislature that
we must go in order to ascertain the true nature of law. So, according to this school
ultimately law is made by Courts and eminent judge. This school is supported by one of
the greatest American Judges Wendall Holmes. But realism is not so much a new school
of jurists. But it is only a new methodology in jurisprudence according to supporters of
this school. Further, the jurists of this school of thought regarded law as dynamic not
as static, and according to them realism emphasizes social effects of laws and of legal
decisions. This school forgets that the decisions creating new law represent in fact only a
fraction of the total of law suits. Further, if there theory is to be accepted no one could
ever say what the law was. One could only predict what the Judge might decree. But this
is not the position in any ordinary legal system and certainly not the position in
Common Law. So the theory of this school cannot be accepted.
2.7 COMPARATIVE SCHOOL
This method of studying and developing law is an old as man himself, but it was
only recently recognized as a science of law. This comparative method is simple. A jurist
takes for study the laws of several countries and rejects what is not essential, what is
temporary or transient and takes what is common to all systems, essential and
permanent and on these factors formulates his definitions and theories. Sir Henry Maine
was both a historical jurist and a comparative jurist. His work “Ancient Law” is a classic
example of a happy combination of both the methods.
Much of our modern law is based on similar rules found in systems of law of the
other countries.
2.8 SUGGESTED QUESTIONS
1. Trace out the contributions made by analytical school of Jurisprudence.
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2. Examine the tenets of Historical School of Jurisprudence.
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LESSON-3

THE THEORY OF LAW

STRUCTURE
3.1 INTRODUCTION
3.2 IMPERATIVE THEORY
3.3 SOLMANDS DEFINITION OF LAW
3.4 KELSON’S PURE THEORY OF LAW
3.5 SUGGESTED QUESTIONS
3.1 INTRODUCTION
Jurists have studied law from different angles as already seen in the earlier
lessons and the definitions given by each of the jurists vary according to the angle from
which they studied law.
So, it is necessary for us to understand “What is law”, Jurists have spent much
time over the subject and they have done it not for the sake of a formal elegance for
beginning the subject, but to provide a definition as far as possible to explain what is
law from their point of view.
‘Law’ or ‘the law’ says Bentham, ‘Taken indefinitely in an abstract or collective
term, which, when it means anything, can mean, neither more nor less than the sum
total of a number of individual laws taken together. ‘But this assertion is true as far as
the English term of law is concerned but there is no equal term for law in other
languages. The term Jus, Recht, Droit as used in continental countries cannot in fact be
said to express nothing more than the sum total of a number of individual laws taken
together. In continental languages, these words may mean law, right or justice But, as
far as English jurisprudence is concerned in the concrete sense a law means a statute,
ordinance, decree or an Act of the legislature in the abstract sense the subject of law i.e.,
law of the state, is the entire body of legal principles prevailing in a particular system.
The English term law is free from any suggestion of the aggregate rights or of the
aggregate just things. According to Hindu idea, the sanction of Dharma contained in law.
It applied to all whether he be a king or a poor citizen. In this sense law is Dharma and
dharma is law.
The next question we have to consider is whether it is necessary to provide a
definition of law to understand a subject. It may be argued that no legal judgement
hinges on the definition of law. Vast majority of legal problems entails no reference to the

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concept of law. Hence, without a definition of law, practical problems can be solved but
the questions like whether unjust law is law or whether international law is law are
questions of more than theoretical importance. In this circumstance, the definition of law
has practical significance. It is the basic concept of jurisprudence and its analysis is
relevant to that of all other legal concepts. For example, legal rights have to be
distinguished from other rights, possession in law from possession in fact and so on.
A traditional method of definition is not sufficient. As far as the traditional
method a thing is defined by specifying it or describing it and then the same is
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distinguished from other members of that class. For the above said reason no neat and
simple definition of law is possible. As put by Salmond, what is necessary is to bring out
the salient features of legal systems and to furnish us with an insight into the nature,
function and operation of law.
Some of the jurists attempted to define law, as the product of the state. yet others
concentrated on the contents of the law. There are other jurists who stress the function
of the law in society and described the functions of the law as it works in actual practice.
It may not be possible for us to go into the definition of all the leading jurists at this
stage to understand ‘what is law’. It is sufficient for the present to consider the definition
of a few of the eminent justice. The problems of defining the terms may be approached
from the point of view of the theologian, the historian, the sociologist, the philosopher,
the political scientists or lawyer.
3.2 IMPERATIVE THEORY OF LAW
This theory distinguishes a legal rule from that of other rules and define law
according to formal criteria. According to Austin, law is in the nature of command. It is
laid down by a political sovereign and in enforceable by a sanction. Austin says “positive
law consists of commands, set as general rules of conduct by a sovereign to a member or
members of the independent political society wherein the author of the law is supreme.”
According to him nothing commanded by any case but the supreme authority is law. he
also says a sovereign is a persons or body of persons whom the bulk of the members of a
political society habitually obeys and who does not himself habitually obey some other
person or persons. From the above it is clear that to Austin a legal rule consists of two
parts viz, as a general command stating legal requirements and a sanction behind it
entailing punishment in case of disobedience by a recalcitrant person, Further to say a
command to be a law, it should be a general command issued by the sovereign to
persons generally to do or forbear from doing a class of acts distinguished from a single
or isolated act which is a particular command. So law is a rule made by the state or
sovereign imposed by the state enforced by the state and breach of these rules of law is
visited by punishment by the State.
It is well for a student to know that when Austin says law is a rule made by the
state. Austin only means, whatever the rule is or by whomsoever it is made, or where in
sources, that rule to be a legal rule should be recognized by the state as a legal rule. In
this way that rule can truly be said to be made by the state, as it has the sanction on the
state, I may give for an example, custom is not a legal rule to Austin. It becomes a legal
or customary law only when there is the will of the state behind it. Austin therefore in
his imperative definition law emphasizes the enforcement aspect of law the force of the
state. ANNAMALAI UNIVERSITY
Now it is necessary for us to study critically the imperative theory as laid down by
Austin.
According to the historical jurists Sir Henry Maine and those belonging to the
historical school the theory is suitable only with regard to mature jurisprudence. To
them, law is not linked with that of sovereignty and so the theory is historically false.
Maine observes although the definition of law, as the command of the state is possible
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and is at first sight sufficient as applied to the developed political societies in modern
time, yet it is not true with more primitive societies. Early law is not a command of the
State. It has its source in custom, religion or public opinion and not in any authority
vested in a political superior. it is not until a comparatively late stage of racial evolution
that law assumes its modern form and is recognized as a product of supreme power
governing a body politic. Law is prior to and independent of political authority and
enforcement, It is enforced by the state because it is already law and not vice-versa. On
the other hand, the supporters of the modern theory of positivism answer the above
criticism by saying that Austin is concerned only with nature systems of law or modern
states. The law would have been derived from ancient rules and those rules may
resemble law and also may be a substitute for law but they are not themselves law. As
put by Paton a monkey is not necessarily a man because he is descended from the same
anthropoid ancestors and we should not confuse the early beginnings of law with the law
itself.
Another criticism on the historical school is that in primitive times even though
there was no state organization there were laws, so it is not true to say no sovereign no
law”. The historical school also points out that in the Middle Ages when communities
have organized themselves everywhere into body politic the law of that period could not
be said to be the law made by the state. in Europe it was the law of the church, the law
of the merchants, the law of the fief and international law. So it is true to say ‘no law no
sovereign’ So the imperative theory cannot be applied to the law of primitive times and
the middle Ages. Likewise for a very long time in Asiatic counties that king was no
lawgiver. So the imperative theory which emphasizes the interdependence of law and
sovereignty is not true of Asiatic communities also.
But students please note that in an earlier lesson I told you that Austin belongs
to the positive school. He is a positivist dealing with law as it is not with law as it was or
as it ought to be. So his definition of law as the command of the sovereign is a definition
of law of modern states. Also at the outset I have mentioned that Austin gives
importance to the enforcement aspect of law. So we can truly say that by and large law
is imperative, because the true lawgiver according to Bishop Headley is “not he who first
wrote or spoke the law, but he who enforces it as law.” But I must tell you that there are
many kinds of law which are unsupported by sanctions, for example, permissive,
enabling and declaratory statutes, law repealing other laws, international law. Criminal
law repealing other laws, international law. Criminal law is outstandingly imperative
always supported by a sanction. please do not think that sanction means only corporal
punishment; any civil consequence on the breach of legal rules is a sanction. Fines,
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injunctions, imprisonment etc are all sanctions.
Salmond has also criticized Austin’s definition of law and he states that he has
eliminated ethical aspect from the definition of law and unduly stressed the imperative
aspect of law.
Let me quote here one of the most beautiful quotations of Salmond which deals
succinctly with this criticism, he says of law. “Law is not right alone, nor might alone, it
is a combination of the two. It is justice speaking to man by the voice of the state.’ it is
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well to memories this quotation not only for the beauty of expression but it is a form in
which a question on imperative theory may appear.
The theory has not taken into consideration according to Salmond. The purpose
of law is to administer justice. So there is a close relation between law and justice. Law is
the end Courts of law are courts of justice. All legal principles are not commands of the
State and even those which are such commands are at the same time in their essential
nature something more of which the imperative theory takes no account.
Before concluding the discussion about imperative theory of law it is necessary
for us to understand the terms ‘the law and a law’. Austin says that positive law is the
“aggregate of the rules established by political superior”. Whereas Salmond demonstrates
this view of Austin as incorrect. The law of a country in its abstract sense means a whole
system that orders each conduct and it represents the whole body of rules recognized
and applied by Courts for example the Common Law. But each rule that we call as the
law is only part of the whole law. According to Salmond, “all law is not produced by law
and laws do not produce law.” In that sense a law usually means law arising out of
states legislative authority and it is only one of the sources of law. There are other
sources like judicial precedent and custom and they are also recognized as authoritative
sources of law and produce law and order for our conduct. These laws are also applied
by the Courts though they are not enacted law. Hence all law is not produced by law
Whereas, generally though law is produced by enactment, all acts of parliament do not
formulate rules of law. There are exceptions to it. For example, as far as English system
is concerned prior to the Matrimonial causes Act 1867 a divorce was obtained only by
means of a private Act of Parliament. This created no law, But, when a divorce was
granted under the Act of the Parliament it creates law. “So laws do not produce law, so
all law is not produced by laws and laws do not produce law.”
3.3 SALMOND’S DEFINITION OF LAW
Salmond is another eminent jurist who has defined law and he has defined the
law in terms of the purpose of the law. He says, “law may be defined as the principles
recognized and applied by the state in the administration of justice.” This definition is in
line with that of the supporters of the realistic school of law. Professor Gray and Holmes
According to Salmond all law is not made by the legislatures in England much of it is
made by law courts, all law however made is recognized and administered by Courts and
no rules are recognized and administered by the Courts which are not rules of law. It is
therefore, to the Courts and not legislature that we must look in order to ascertain the
true nature of the law. Salmond further explains that only when the principles of custom
and statutes are recognized by Courts in the administration of justice, the rules are
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recognized as having legal character. Salmond considers that if the highest Court of a
state were willfully to misconstrue as Act would ipsofacto be the law since there is no
other authority to question such an interpretation. He has defined law in the abstract
sense and according to him justice is the end and law is the instrument by which justice
can be administered and maintained in a society.
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From the above discussion it is clear that Salmond gives importance to the courts
as the true law given in the sense the law that is ultimately binding is the law that
proceeds from the courts of law, whether it is statute law or customary law.
Though Salmond has explained law in terms of its purpose yet, the other jurists
have leveled criticisms against the said view of Salmond. Vinogradoff criticized Salmond
by saying. “The direct purpose for which judges act is, after all the application of law
starting from their action would therefore be somewhat like the definition of a motor car
as vehicle driven by a chauffeur. He also further criticizes the definition by saying
“what should we think of a definition of medicine as a drug prescribed by a doctor”. He
says the very purpose of the law is administration of Justice and so feels that it is not a
definition to say that the law is for the purpose of doing justice. He has only explained
the function or the law function of the Court and has not given a definition of the law.
Vinogradoff also feels that Courts apply the law because it is already a law. He says that
it is logically incorrect to say that a rule acquires the character of law only on the ground
that it has been applied by the Court. Fortunately Salmond himself answers the criticism
by saying that he has defined law as an instrument that has been used for ends of
justice and there is nothing wrong in defining the thing as an instrument with regard to
its ends it is a means by which the end is achieved.
Salmond’s definition gives prominence to judicial action and this definition has
the support of the Realistic school of America. According to Cardoza “law is the aggregate
of rules recognized and acted on by courts of justice.” His definition defines law in terms
of “the law”. Another eminent jurist professor Gray has defined law as “the law of the
State or of any organized body of men is composed of rules which courts lay down for the
determination of legal rights and duties.” This definition is an improvements over
Salmond’s definition and the Realists have pushed this definition to its logical conclusion
and according to them law consists of rules which the Courts will probably recognize
and act upon.
Salmond’s definition takes in its fold Constitutional Law as law in the strict
sense, whereas Austin’s definition refuses to recognize both constitutional law and
international law as law in the strict sense.
3.4 KELSON’S PURE THEORY OF LAW
Kelson’s view of law is against the modern schools which have so far widened the
boundaries of jurisprudence. Thus he is a philosopher in revolt from the tendencies of
which philosophy has led so many writers. he desires to create pure science of law
stripped of irrelevant materials in order to separate jurists from the social sciences as

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rigorously as did the analysts. Kelson refuses to define law as a command for that
introduces subjective and political considerations and he wishes that his study be truly
objective. He says jurisprudence is a normative science as distinguished from natural
science. In natural science we have statements of cause and effect and there is no
question of infraction of that statement. If there is any infraction, then that is not a
scientific rule. As far as jurisprudence is concerned we do not have casual connection
between cause and effect. There may be interaction of a particular rule and yet law
remains valid even when they are infringed and even when consequence does not follow.
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He makes no distinction between state and law. As pointed out earlier, lawness of a
particular rule has to be decided from the hypothesis “grundnorm’ or fundamental
norms. This ‘grundnorm’ is not derived from any science of law. It is an initial
hypothesis from which all laws spring. The lawness of a particular norm will de decided
by considering whether or not ultimately it is traceable to the ‘grundnorm’, as lawness of
a norm is not dependent upon meta-legal facts, but has its own specialty and relation in
legal order. This theory of Kelson is called pure theory of law This theory has nothing to
do either with social facts or with the high principles of justice. It recognizes
constitutional and International law as law in the strict sense. he makes no dichotomy
between private law and public law as he eliminates the concept of sovereignty and
state as a distinct entity. He also recognized customary law as law in the strict sense
which Austin denies.
Kelson’s theory also faced criticisms in the hands of leading jurists when he
opined that the validity of each norms depended on its being laid down in accordance
with a superior norms in this view Kelson’s theory is a distinct improvement and
cleared many of the pitfalls of Austin’s theory as this identification of state with the legal
order is not acceptable to all the jurists. He has only given a back door recognition to
international law as he has recognized. International Law as superior law to the legal
order. He fails to note that a state has to operate even outside the ambit of legal order
and identification of order and legal state is not justified. The aim of pure science of law
is narrow one and it must be complemented by with other broader approaches.
3.5 SUGGESTED QUESTIONS
1. Critically evaluate “Pure Theory of Law”.

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LESSON-4

CONSTITUTIONAL LAW

STRUCTURE
4.1 INTRODUCTION
4.2 PUBLIC AND PRIVATE LAW
4.3 INTERNATIONAL LAW
4.4 GENERAL AND SPECIAL LAW
4.5 SUGGESTED QUESTIONS
4.1 INTRODUCTION
Before going into the question of whether constitutional Law is law in the strict
sense, we have to consider what is Constitutional Law. According to Salmond,
“Constitutional law is as its name implies the body of those legal rules which determines
the Constitution of the State.”
Constitution may be defined as “that fundamental law of the State which contains
the principles on which government is founded, regulates sovereign powers and directs
to what person each of these powers is to be entrusted and manner of its exercise.”
Dicey defines “Constitutional Law as the term is used in England appears to include all
rules which directly or indirectly effect the distribution or exercise of sovereign power in
the State.” From these definitions it is clear that Constitutional Law deals with
fundamental and far reaching principles governing the structure of the state.
According the Austin’s view Constitutional law is not law in the strict sence.
According to his definition of law, positive law is the command of the sovereign and
sovereign is not bound by his own law. The sovereign is above the law. But
Constitutional Law binds or controls the sovereign. Also positive law is supported by a
sanction, whereas Constitutional Law has positive sanctions for its enforcement. Hence
Austin observes “Constitutional law is positive morality and is enforced merely by moral
sanctions.” In his opinion, Constitutional Law depends upon force only from public
opinion. It therefore belongs to the class or moral rules and law in the strict sense or law
properly so called.
Eminent jurists like Salmond and others have criticized the view of Austin in
refusing to recognize Constitutional Law as law. According to Willough “Constitutional
provision do not purport to bind the State but the Government. This vital distinction
Austin did not grasp.” This explanation of Willoughby is not correct in order to bring
Constitutional law within the ambit of law. Willoughby view that Constitutional Law does
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not purport to bind the sovereign state does not seem to be well founded. In a written
constitution which is rigid sovereign is undoubtedly cramped by constitutional
limitations. The law according to Salmond, is the rules recognized and applied by the
State in the administration of justice. As rules of Constitutional law are recognized and
applied by the courts and enforced in the administration of justice constitutional law is
law properly so called.
Salmond obverses that Constitutional Law is both a matter of fact and a matter
of law. He says that the constitution of a state as a matter of fact is anterior to the
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constitution as a matter of law. As soon as the constitution comes into existence, as a
matter of fact, a body of rules comes into existence to regulate the various organs of the
constitution as a matter of fact. Thereupon a legal theory is woven round the
constitution as a matter of law called Constitutional law. So Salmnd observes
Constitution Law follows hard upon the heels of constitutional fact. Constitutional Law
is therefore law in the strict sense of the term.
4.2 PUBLIC AND PRIVATE LAW
Law can be divided into public law and private law. Public law deals with the
state and the organs of the state. They are constitutional law and administrative law.
It is necessary for us to understand the difference between Administrative Law
and Constitutional Law. Both appear to be the same but they are essentially different.
Administrative Law is the law which defines the organization, powers and duties of
administrative authorities.
Dicey observes:
1. The constitution and the relation of those organs of society which are charged
with the care of these social interest which are the object of public administration
by which term is meant the different representative of society among with the
state is the most important and
2. The relation of Administrative Authorities towards the citizen of the State:
Constitution deals with each and every kind of law including administrative law,
whereas administrative law is a branch of constitutional law which deals with legislative
and judicial power of the executives of the state.
Holland observes that various organs of the sovereign power are described in
constitutional law as at rest but it is also necessary they should be considered as in
motion and the manner of their activity should be described in detail. The branch of law
which does this is called administrative law. But both constitutional law and
administrative law are part of public law.
Private law may be said to be of different kinds. It is the law which has nothing
to do with the state but only between citizens and the state. They are divided into law of
torts, law of property and law of obligations. The state here stands on the same footing
as a private citizen. Criminal law and Criminal Procedure which takes action for
maintaining order and peace in a society may be said to be on the borderline of public
and private law.
4.3 INTERNATIONAL LAW
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According to Lord Russel Killoween International Law means ‘some of the rules or
usages which civilized states have agreed shall be binding upon them in their dealings
with one another.” Hence, the Law of Nations or International Law deals with rules for
the governance of sovereign states in their relations and conduct towards one another.
Another eminent jurist. Wheaton defines International Law as “the body of rules which
by custom or treaty civilized states regard as binding upon themselves in their relation
with one another and whose violation gives the injured party a legal right to redress.” In
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fact, Jeremy Bentham coined the word International Law which was formerly called as
the Law of Nations.
Now the question is whether international law is law in the strict sense. We have
already seen that Austin has refused to recognize constitutional law itself as law in the
strict sense. In that view, if the definition of law is applied as laid down by Austin,
International Law is not law in the strict sense for law is the command of the sovereign
and international law can hardly be the command of a sovereign as in international
relation there is no superior controlling inferiors. All are equal John Austin, Willoughby
and Holland regard International Law as positive morality or as merely moral Code of
Nations and they refused to recognize international Law as Law properly so called
Holland described International Law as “the Vanishing point of jurisprudence” Positive
law is the body of rules set and enforced by severing political authority. In that sense
international Law, however is not set or enforced by a superior state controlling all other
states, As far as International Law is concerned as seen from the definition, all states
are equal irrespective of their resources and power. There is no overriding coercive
authority over and above the states. There are only two factors, according to Holland and
they are 1) Public opinion 2) the force and opinion of disputant states which make the
enforcement of international rules possible. Moreover, international tribunals have no
force to compel a state to abide by its authority. So, those jurists consider international
law is at best not law properly called and they are only political and moral postulates. In
order to bring international law within the purview of law in strict sense oppenheim
defines law as ‘body of rule for human conduct within a community which by common
consent of this community shall be enforced by external power. By this definition
Oppenheim brings out three essential ingredients for existence of law. Firstly, there shall
be a community. Secondly there shall be rules for human conduct and thirdly there shall
be common consent of the community for its enforcement by force. In that sense he says
international law in the strict sense as the community of states have agreed to follow a
set of rules for regulating their conduct and have also given consent for its enforcement
against the recalcitrant state. It may be a weak law, nevertheless still law according to
oppenheim.
According to Salmond International law is a kind of conventional law and this
view received the greatest support from English Courts. According to him one of the
branches of international law i.e. prize law is law in the strict sense as its rules are
recognized and applied by Courts of the land in the administration of justice. He says
that barring Prize Law, the rest of international law does not satisfy the test of Civil Law.
So he opined international law could be treated as a special kind of law that
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conventional law as being the result of agreement amongst sovereign states So, Salmond
concludes that it should be regarded as a species of conventional law. To some jurists
international law is a kind of customary law. According to them Salmond’s customs
serve only as evidence of the existence of international agreement which is the true
source of International law.
At present it is dangerous not to consider international law as law as one jurist
remarks. “The precarious validity of the law of Nations on which the very existence of
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nations and civilizations itself depends would become yet more precarious if it is not
defined as international law”. It is a task for statesmen to enlist might on the side of
right and thus achieve the triumph of international justice by effective vindication of the
place of International Law.
4.4 GENERAL LAW AND SPECIAL LAW
The whole body of law or the corpus juris civil is may be divided into two parts as
general law and special law. The general law of a country is its territorial law. General
law is defined as, the law that binds all things, law which applies to all persons, all acts,
all events within the territory. Criminal law, Civil Procedure Code; Criminal Procedure
Code. That part of the law, that has no general operation throughout the country but it
is also enforced by Courts in the administration of justice is called special law. For
example, principles of Hindu law and Mohammedan law though applied by the Courts
in the administration of justice, cannot be applied to all persons in India, because Hindu
Law, and Mohammedan Law are personal laws applicable to Hindu and Mohammedans
respectively. Hence Sir John Salmond makes mention of six forms of special laws. They
are Local law, Martial law, Foreign Law, Prize Law, Conventional Law and Autonomic
Law.
Local Law: As this law is not the general law of the land it has application only in
a particular locality. It can be either enacted law or local customs. Take for instance, the
provisions of City Tenants Protection Act, or Tamilnadu Buildings (Lease and Rent)
control Act etc. In some way an easement right to privacy does not exist under general
law of our country, but can be claimed by customs in certain states like United
Province. Sind, Gujarat, etc. So, a Local Law may be locally indicated law or local
customary Law.
Martial or Military law: The very name implies that the principles of this law is
applied by military authorities in the administration on justice. For the purpose of
administration of justice through martial law, Courts Martial are established and the
law which is administered by Courts Martial may be of three kinds.
1. First, there may be instance where the army may occupy enemy territories and
in that event it would be necessary to maintain peace in that occupied territory. Here
military law prevails over the civil law and this is one kind of military law.
2. The second instance is the case where military authorities may be called upon
to govern the country in case of internal strife or in times of war. In such cases martial
law is declared and the military take over in supersession of the civil law.
3. The third kind of martial law is for the governance of army itself in times of
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peace But this third variety of material law is not applied as against civilians but
enforced only against army personnel.
Foreign Law: There may be instances where a state may be called upon to decide
a dispute between a citizen and a foreigner in that instance, it may be necessary for it to
apply the territorial law of some foreign country. International private law deals with the
consideration or circumstances under which a state is expected to apply foreign law so
indigenous litigations.
 23
Prize law: This is only a branch of International law, Salmond has recognized
Prize Law as law in the strict sense In times of war, a maritime state may wish to
exercise its right of capture of ships and cargo on high seas when carrying contraband
goods. When any nation exercises that right it has to establish its right to capture goods
and ships. These courts that are established for the purpose of deciding upon the legality
or otherwise of capture of ships or cargo, are called Prize Courts English law recognizes
Prize law as a branch of the Civil Law.
Autonomic law: Normally law is made by he sovereign, Occasionally private
persons are permitted to make law and to which a sovereign power lends its authority
and such a law which is established by private person or private body of persons and
sanction granted by the sovereign authority is called Autonomic Law. Example, the
bylaws made by any University or by Railways or by Life Insurance or Municipal
Corporation. It is not the general law in the sense it does not bind all persons, all things,
all events within the territory, but only within its sphere of authority.
Conventional Law: Conventional law arises out of agreement between two or more
person or parties and it hinds those persons who have agreed to be bound by it. When
Conventional law is enforced by the state the same is regarded as part of the Civil Law.
Conventional law and autonomic law may resemble, in that they are both created
by private persons and are kinds of special law. Yet there is an essential difference
between the two. While autonomic law binds all persons within its sphere of authority
conventional law binds only those persons who have agreed to be bound by it Autonomic
law is thus a species of law which is enforced by the state, though made by private
persons independent of any agreement on the part of those who are bound by it; whereas
conventional law is based purely on agreement.
4.5 SUGGESTED QUESTIONS
1. Explain the difference between Austin’s and Salmond’s theory of sovergining.

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 24
LESSON-5

KINDS OF STATES

STRUCTURE
5.1 INTRODUCTION
5.2 FEATURES OF FEDERALISM
5.3 AIMS AND FUNCTIONS OF THE STATE
5.4 ATTRIBUTES OF STATE HOOD
5.5 THEORIES AS TO ORIGIN OF STATE
5.6.1 Juristic Theory
5.6.2 The political theory
5.6.3 The Philosophical Theory
5.6.4 Sociological Theory
5.6.5 Economic determinant Theory
5.7 SOVERGINING
5.8 ESSENTIAL ATTRIBUTES TO SOVEREIGNTY
5.9 SALMONDS THEORY OF SOVEREIGNTY
5.10 INDIAN CONSTITUTION
5.11 SUGGESTED QUESTIONS
5.1 INTRODUCTION
Aristotle classified states into Monarchies, Aristocracies and Democracies
corresponding to the exercise of Governmental power by a single person, by group of
persons, by majority of people themselves either directly or through representatives
chosen by them. Perverted form of monarchy is tyranny, perverted form of aristocracy
being oligarchy.
States can also be classified into unitary and composite states.
A Unitary State in a single undivided whole for Governmental purpose although
the chief organs of Government may find it expedient to delegate some of their powers to
inferior organs for certain limited purposes, e.g. Great Britain.
On the other hand in a composite state the task of government is divided between
two or more sets of organs any or all of which may have authority over some particular
portion of the state territory only. The remaining organ has a general authority over the
whole territory but it is limited to certain types of activity the remainder being committed
to the local Government authorities.

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Composite states again can be divided into Federations and Confederation. in a
federation sovereign authority is divided between central and local organs while in a
confederation certain types of functions have been delegated by the local government to
the central authority.
Confederated states are a number of full sovereign states linked together for the
maintenance of their external and internal independence by a recognized international
treaty into a union with organs of its own which are tested with a certain power over
member states but not over the citizens of these states. Such a Union is merely an
 25
international confederation of states, a society of an international character since the
member states remainfully sovereign state and separate international persons. The chief
and the only organ of the confederation being a diet when the member states are
represented by diplomatic envoys. The power vested in the Diet is an international power
which does not in the least affect the full sovereignty of the member states. That power
is essentially nothing else than the right of the body of the members to make war against
such a member as will not submit to those commandment of the Diet which are in
accordance with the treaty of confederation war between the member states being
prohibited in all other cases.
History has shown that confederated states represent an organization which in
the long run gives very little satisfaction. It is for that reason the three important unions
of confederated states of modern times viz. U.S.A., Germany and Switzerland have
turned into federal states. At present there appears to be no union of confederated
states. The Arabs are toying with the idea of forming a union on these lines to form a
common front against Israel but are not successful due to their internecine squabbles.
Federalism is a form of political and constitutional organization that unites into a
single policy a number of diversified group or component politics so that the personality
and individuality of the component parts are largely preserved. So a federal state is a
perperual union of several sovereign states which has organ of its own and is invested
with power not only over the member states but also over their citizens. The union is
based first on an international treaty of the member states and secondly on a
subsequently accepted constitution of the federal state. A federal state unlike
confederate state is a real state side by side with its member states because its organs
have a direct ‘power over the citizens of those member states. This power was
established by American jurists of the 18th century as a characteristic distinction
between federal states and confederated states. Kent and story, the two authorities on
the constitutional law of United States adopted this distinction which is maintained till
today by the present writers on politics. Now if the federal state is recognized as itself a
state side by side with its members it is evident that the sovereignty must be divided
between the federal state on the one hand and on the other members states. This
division is made in this way that the competence over one part of the objects for which a
state is in existence over the other part remains with the member states. Within the
competence the federal state can make law which binds the citizens of the member
states directly without any interference by these member states. On the other hand the
member states are totally independent as far as their competence reaches.

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The important features of federalism displayed by a federal state are as follows.
5.2 FEATURES OF FEDERALISM
a) Distribution of powers
Authority is distributed between the federal and state governments with their
respective spheres of action being carefully demarcated by a written instrument.
b. Written Constitution
Since federal type of Government involves distribution of powers between two
state entities, a written constitution becomes necessary. This distribution is carried out
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by the written constitution which demarcates clearly the areas of competence of the
federal and state governments powers by enumerating them exhaustively in the lists.
c. Independent judiciary
Thirdly as independent judiciary is essential for adjudicating the dispute between
the state units, or between the state and the federal Governments. Added to this the
court will also have to interpret the constitution.
d) Separate Representation in the Federal Legislature
Another important features of federalism is the states are represented in a
separate legislative body at the Federal level in addition to the normal representation of
the people to the federal level. As an example we can cite the Senate of The United
States.
5.3 AIMS AND FUNCTIONS OF THE STATE
The question as to the aim of the state is necessary compliance to the question
concerning the nature of the state. Aims of the state are not always the same. As to the
minimum requirement of the state functions there is a broad agreement. As stated by
Hobbes the Leviathan i.e. the state carries two swords of war one the sword of war and
other sword of justice. The former aims at protecting the members of the society from
external threats while the latter aims at the maintenance of law and order within the
society. Salmond also agrees with the view of Hobber. According to him the two main
functions of the state are the maintenance of right by might and the conduct of war.
This classic theory on the function of the state limiting the state functions to well
defined ends were expressions of liberal philosophy which regarded society as a
collection of individuals whose personal egos were entitled to the fullest expression
except when such assertion of personality inflicted harm upon others. This liberal
philosophy also known as lassiez faire in the political and economic thinking assigns to
the state purely negative duties and imposes upon the state the duty to non-intervention
in the affairs of the subjects.
Dramatically opposed to this theory is the collectivist theory of the state which
seeks the intervention of the state in the minutest transactions of daily life. In pursuit of
such welfare theories the state engages in wide range of activities. This progressive
extension of the state naturally implies corresponding modifications in the structure of
these states.
During the last few centuries the modern national state has an increasing
tendency to become the Leviathan not only as a repository of physical and legal
restraining power and the protector of the nation against external enemies as envisaged

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by Hobbes, but also acts as main directive force in the shaping of the economic and
social life of the nation. A short glance at the functioning of the modern state reveals the
following features.
The state has gradually absorbed unified and has come to control most of the
functions previously exercised by social groups, merchants and landowners. it has
taken over many responsibilities formerly confined to the family. It has added new
duties which takes the individual out of the family nexus (e.g.) responsibility for
education, obligation of national service, family allowances etc. In the field of family
 27
relations the enlargement of divorce and nullity grounds, adoption and other conditions
of family life. It has taken responsibilities in the field of employment by implementing
schemes like unemployment insurance, old age pensions, workman’s compensation and
industrial finance. It has imposed far reaching restrictions upon the use of private
property culminating in the various degree of power to expropriate property for public
purposes and in many cases public ownership of basic industries. Today since the
welfare state is the regulator and dispenser of benefits and a mass employer it draws
into itself functions and responsibilities formerly dispersed among other power
structures. For a large number of individuals the Government is the source of income
either directly as employees or indirectly when the state exercises the privilege of
granting licences. Many individuals enjoy public generosity in the form of government
contracts which are nothing but subsidies. All these mean growth in the government
powers which implies the dependence upon the government. The man in the street has
come to look up to the state as the source of many of his valued expectations with a new
affection. So the present trend is towards ‘collectivism’ and this trend appears to be
irreversible.
Side by side with this development towards the Welfare state, the conflicting pulls
exerted by pressure groups within the state call for comment. In the normal functioning
of a democratic society there is always a perpetual struggle between various organized
social forces striving to translate their particular interest and aims into legislative and
administrative actions. So the influence of any particular group is largely dependent on
the weight behind it. Such weight being measured not only by mere members but also
in terms of financial resources, discipline and organization.
The dangers of this state of affairs is very obvious. The most powerful the wealthy
and the highly organized groups may succeed in identifying the public interest with its
own selfish interests. However, this state of affairs is mitigated by what Prof. Glabraith
calls as the countervailing power i.e. the pull of a highly organized group is counter
balanced by the counter pull exerted by an equally organized groups. For eg. A highly
organized manufacturers association may be found with equally well organized
association of wholesalers or retailers. If the legal sovereignty of modern state is nothing
more than the product of the pupils exercised by various social power groups, pulls
interest would dissolute into an uneasy balance between the conflicting pulls with the
dominant group controlling state machinery. That is why Figgs and Laski pleaded for
more recognition of social groups within the state in mitigation of legal and ideological
glorification of the state.

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This state of affairs viewed in the light of the writings of Marx and Hegel gives us
some insights into the functions of the State.
Marxism in its original form accepted and preached the necessity of substituting
the identification of the interests of the dominant property during middle classes with
those of the state by means of a revolution that would identify the interests of the
proletariat with those of the state.
Hegelianism on the other hand while preaching that the state was the integration
and sublimation of all the forces within the society inevitably substituted in practice on
 28
intensely nationalist and socially conservative state for the abstract and universal ideal.
For Hegel, the perfect state, which would be the culmination of world history was in
effect the Prussian monarchy of early twenties. For neo-Hegelians it was the Nazi States.
Modern democratic state does not correspond to either of these two extremes.
There is a reserve function in the state which acting through the main branches of
government expresses and articulates the national policies and sentiments which do not
normally express themselves in organized pressure groups.
To sum up, the modern state is expected to assume responsibility for an
irreducible minimum of welfare functions for exceeding the sphere of state activity. In
this context five different state functions calls for legal analysis. They are as follows.
a. The state as a protector
This is the traditional function of the state ascribed by the classical liberal
writers. This function includes matters relating to defence, foreign affairs, police, and
administration of justice. To there a limited taxing power can also be added to the
legitimate functions of the state. In these traditional spheres of State functions the
following issues raise certain problems.
(a) The immunities and privileges of the state in matters of litigation, taxation etc.
(b) The emergency defence powers of the executive in times of danger, the acts of
state doctrine which is above the judicial scrutiny, and such other prerogatives are all
detractions from the principle of equality. They are tolerable only when the scope of
state functions is limited. As the activities of the state extend in the field of industrial
and commercial enterprises and of social services, the whole field of these privileges and
immunities requires redefinition and limitation otherwise it would gradually engulf a
growing portion of the whole field of law.
b. The State as the Dispenser of Social Service
Legally this function is expressed in two different ways. many important social
services are ‘discharged through the imposition of compulsory duties and conditions on
private relationships. A multitude of statutory duties affect both public and private law.
Social minimum standards are enforced through compulsory conditions in the contract.
The discharge of social service functions requires a multitude of active
administrative and managerial functions by government departments or by public
authorities. This has led to the growth of administrative law which aims at the proper
exercise of administrative discretion.
c. The State as Industrial Manager
The modern state increasingly engages in the conduct of industrial and
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commercial activities. It does so as state ownership of public utilities or through
independent corporate authorities. The State naturally will enjoy a privileged position in
the pursuit of such activities. The question now for the state should be subjected to the
ordinary legal liabilities will pose problem since the government cannot be the judge of
its own cause.
d. The State as Economic Controller
The role of the modern state in acting as the general controller over the allocation
of economic resources for the nation gives rise to be subtle problems. As an economic
 29
controller the state can allocate resources amongst different industries according to its
discretion. This can be used by state of favour a particular industry and thwart other
industries. Legal theory must devise methods to see that the state exercises its powers
in the aforesaid without any extraneous considerations.
e. The State as Arbitrator
The modern state acts as an arbitrator between different groups in the society. In
a totalitarian society the state can without any moral conjunction throttle criticism and
favour any one group and suppress the other. But in a pluralistic society with a written
constitution so many safeguards are provided the task of adjustment conflicting pulls is
very difficult.
In short the state as an arbitrator in a democratic society has three tasks.
a. Maintenance of a rough balance between contending organized groups and the
unorganized consumer.
b. Protection of individual freedom of association.
c. Safeguarding the over riding state interests.
To conclude, the progressive extension of State functions as discussed above
challenges the traditional role of the lawyer as a mere craftsman or a technician. Time
has come when the lawyer cannot remain a mere technician since his technical
knowledge will only supply the tools but the sense of responsibility for the society in
which he lives requires that he should also be a jurist.
5.4 ATTRIBUTES OF STATEHOOD
How state differs from other associations – Necessity of state organization – What
is the authority of state to bind the subjects – Theories as to origin of state.
The idea of state signifying a politically organized society began. In Italy in the
first half of the sixteenth century and gained currency from the writing of Machiavelli.
State is an association of human beings whose number are atleast considerably
united in the appearance of permanence for political ends for the achievement of which
certain governmental institutions have been evolved.
Though a state is an association of human beings it differs from other
communities of human being in the following respects.
1. It is an association for political ends.
2. It has compulsory jurisdiction. By virtue of the political functions which the state
discharges it is endowed with a plenitiude of power over the lives and conduct of
its members. The members of the state organization do not have the option to

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withdraw from the state organization.
According to Austin two cardinal principles are necessary for the existence of a
state.
1. The external activities of the State must not be subject to the control of any
external authority.
2. In the management of internal affairs the State should be free from external
interference.
 30
Attributes of statehood laid down by the Montevideo Convention of 1933 are as
follows.
A State is a territorial unit containing a stable population under the authority of
its own government and is recognized as being capable of entering into relations with
other entities with international personality.
This definition of state lays down the following conditions for statehood.
a) Permanent population b) a defined territory c) a government d) capacity to
enter into relation with other state.
As to the need for state organization and the authority of the state to bind the
subjects the following explanation can be offered.
Respect for authority and legality has its emotional source in the theocratic
conception. It is rooted in the psychology of the human mind which can be traced to
childhood’s learning for guidance through the father. Every child needs guidance,
though he may resist commands he subconsciously appreciates that he can flourish only
in an atmosphere of stability and that he must be protected. So without authority chaos
will reign. Club law on the part of the stranger and intrigues by the weaker would go
unpunished. Only peace would be the peace of exhaustion and the only rules would be
that of force and egoism. An incompetent father is better than no father and the worst
authority is preferable to no authority at all.
5.5 THEORIES AS TO ORIGIN OF STATE
1. Historically political association seems to have originated in the grouping of the
members of the family around one of its promoters, in some early communities the
grouping may be around the mother, the relation of the mother and son being the only
certain fact in societies where social unions were promiscuous.
Later obvious physical suitability of the father for leadership resulted in his
gradual acquisition of supremacy within the family group mother being delegated to a
position of subordinate. This is the famous patriarchial state of society which is found in
Genesis which deals with Abraham and his household.
Net state is reached when the sub-families established by the sons on the death
of fathers do not separate but remain united for common ends, like agriculture, defence
etc.
Such larger association of families claiming descent from a single common
ancestor are clans. When a number of clans associate for common political ends (e.g.)
for common defence against external aggression the state has originated.
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2. The theory of divine origin of state maintains that organization of state depends
upon the will of God which calls for the belief in the existence of a special form of
organization either monarchical or feudal commanded by a Deity and which cannot be
altered without sin.
The will of God is the origin of State organization. So it must be his revealed will.
The command of God does not appear as a basis of law but only raises the legal duly
towards the lawful government into a religious duty.
 31
3. Another theory put forward by Oppenheim is as follows State organisation
developed out of grouping around a leader usually a military ruler. Thus the state is a
social institution forced by a victorious group of men on a defeated group with the sole
purpose of regulating the victorious group over the vanquished and securing itself
against revolt from within and attack from outside.
4. The social contract theory in its two forms, one propounded by Hobbes who
developed from certain proposition advanced by Hooker in the laws of Ecclesiastical
policy and the other propounded by Locks and modified by. Rousseau.
According to Hobbes before the evolution of political society men recognized no
law except the law of the strongest and consequently live in a state of perpetual fear. To
remedy this situation which was nasty and brutish a common authority was established,
So a common wealth was established when a multitude of man disagree and every one
covenants with every one else.
According to the covenants.
a. Individuals are subject to the subject of the monarch and cannot leave or
withdraw from the monarchy.
b. There can be no breach of covenant on the part of the sovereign.
For Locke the contract is between the individuals to unit into a political society.
The individual surrenders his right of unfettered action to the community in return for
mutual protection and support and the community there upon proceeds to appoint
instruments of government which are the creatures of the community. It these
instruments fall to fulfil their allotted function adequately they may be replaced by other.
This theory emphasizes on the natural rights of individuals of which no government can
deprive them.
For Rousseau the state is the community of individuals who have agreed to set up
instruments of government to give expression of the popular will. The theory of
Rousseau leads on directly to the notion of popular sovereignty and the omnipotence of
the majorities holding a common opinion within the State. As Jethro Brown has
remarked the theory of Hobbes find expression for the Government but not for the state.
While that of Rousseau finds an expression for the state but not for the government. The
path taken by Hobbes leads to governmental despotism while that of Rousseau
despotism of majorities.
5.6 THEORIES AS TO THE NATURE OF THE STATE
Three principal views have been formulated by political thinkers on the Nature

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of the state. It may be considered as an embodiment of power or as organic growth or
as a judicial arrangement.
Any political organization insofar as it has to appeal to power for its maintenance
can be considered as the result out of forces seeking, to obtain away over the other
community when for some reasons the interests represented by these forces cannot be
adjusted or reconciled and conflict may assume an acute form and lead to the open
struggle in which the sovereignty of the state constitutes the spoils of victory.
 32
Most famous advocate of absolute state, Hobbes derived it not from an assertion
of brute force but from the recognition of a sovereign empire by selfish individuals. The
notion of contract of subjections is out of date but the idea of suppression of strife by a
sovereign empire is reasonable and is based upon experience.
The state of equilibrium obtained by this suppression of strife is the normal state
of human communities. The rule of the strong when it ceases to be a conquest or a
revolution is bound to settle down normally into a rule of law.
Another way of considering the state is to lay stress on its continuity, its
historical development and the vital connection between its aims and functions.
The political doctrine has tried to express in the judicial formula the nature of the
state as a special kind of society. The essence of state organization lies in the fact its
existence surpasses the existences and interests of individual member while forming at
same most important element in the life of each of them. It is impossible for a man to
live in isolation. He is bound to associate himself with his fellow human beings. Al
associations created by individuals tend ultimately towards self sufficient union called
the state depends imitation and for the ultimate defence of its institution on the action of
the society. All movements of law reform and legislation must start from public opinion
and obedience to law and government could not be enforced if people failed to support
them or stood against them.
Based upon these three principal views four theories of state in the literature of
jurisprudence and politics may be distinguished according to Roscoe Pound.
5.6.1 Juristic theory
To the analytical jurist State Organization is essential for the existence of law This
led them to devote much of their attention to the legal theory of the state and
sovereignty. Analytical jurists are concerned with constructing a theory of state from the
point of view of one seeking the ultimate practical source of the legal system and legal
precept nor from the point of view of one seeking the ultimate moral course of the legal
system.
According to their view in a developed and politically organized society courts are
the organs of the state and law is something which has received the stamp of the state.
Hence to them law is a fundamental fact. They look upon the state as a source of
foundation of law and source of authority of all tribunals.
In short, legal theory of state has reference to immediate practical source of
authority of legal precepts and sanctions. It asks from where as a matter of fact precepts

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applied by the courts get their immediate force and authority.
5.6.2 The political theory
Refers to the ultimate practical source as sanction and of authority of legal
precepts. While legal theory of state looks at the king and parliament in England or the
Prime Minister and President and the Parliament of India, the political theory goes
behind them and tries to locate the ultimate practical basis of authority viz, the body of
electors.
 33
5.6.3 The philosophical theory
This theory looks at moral source of legal precept and sanctions i.e it recognizes
the wider claims of the people behind a limited body of electors. The ultimate moral
sources has been sought in reason either from the starting point of nature of things or
from the nature of man or in the religious doctrine of a duty of passive obedience to
sovereigns. Then there is another stream of though which preaches the divine right of
the majority in a politically organized society to rule over the minorities who must
practice passive obedience. This is democracy which is taken to mean the absolute rule
of the majority.
This calls upon to accept the constituted authority and creates a social interest in
the maintenance of such institutions. But political institutions may or may not be of
such character and other interest-may out weigh them morality.
5.6.4 Sociological Theory
Gierke and Maitand view the state as a sort of corporation. This has been carried
further by Duguit who things of the state as a public service company.
Sociologists were approaching the theory of the state from the angle of the science
of society having to do with group behaviour. To them state is one of the groups or
association which must be studied as such without any special reverence. They could
not accept the paramountacy of the state which was accepted by the 16 th century jurists
Instead of identifying state and society they considered politically organized society as
one of the power structures which existed in the society. It is merely a form of
association through which men seek to realize their purposes or secure their interests.
Maitland developed the idea of the state as a corporation from English legal
history. Jelinek takes up three different juristic ideas on the nature of the state.
a. The state as an object of right and law, i.e., it is treated as a mass of property
denoted to some purpose and treated by law as a juristic persons.
b. As a juristic relation, emphasing upon the relation of authority between the ruler
and the ruled.
c. As a subject of right and law.
From the sociological standpoint and functional approach Maciver considers the
state as an agency of social control. He defines the state as follows.
“The state is an association which acting through law as promulgated by a
government, endowed to this end with coercive power maintains within a community,
territorially demarcated, the universal condition of social order.

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Harihou considers the state as an institution. Something that which is
established with a continuous existence apart from the person for the time being and
certain of whose activities organized without their personalities being included right
setting up procedures and organs of authority of its own.
Harihous emphasizes on the services performed by or demand of the state than of
the primary task of adjusting interests and ordering conduct to maintain universal
external conditions of social order.
 34
5.6.5 Economic Determinist Theory
Mars and Engels viewing the state from the angle of economic determination
consider the state as an instrument of class domination. As an agency of the social or
economic class in power it secures the interest of the ruling class and exploits the other
classes. They speculate on the complete disappearance of state and laws. According to
Engels.
As soon as there is no longer any social class to be held in subjection’ as soon as
class rule and individual struggle for existence based upon our present anarchy in
production with the collisions and excesses arising from these are removed nothing
more remains to be repressed and a special repressive force state is no longer
necessary’.
This theory is more or less similar to the one put for forward by Oppenheimer.
5.7 SOVEREIGNTY
In dealing with the origin of state we saw how the various theories tried to explain
the origin of the state. Theory of sovereignty is concerned with the nature and extent of
power which the citizens have conferred upon the state. Stated simply sovereignty is the
absolute power of decision exercised by some persons or body of persons both competent
to decide as well as to enforce the decision.
Theories of sovereignty are products of post renaissance, reformation era. In the
middle ages secular power was never absolutes. It was the church which was supreme.
With Renaissance and Reformation the traditional hold of the church was broken. The
political literature of both century is full of theories justifying the existing authority.
There was a constant revolt and civil war in the society, which made peaceful life
impossible for the average citizens.
The first writer to offer a theory on sovereignty was Machiavelli in his ‘Prince’. As
a theoretical explanation on the nature of authority, he rejects the claim of the church to
exercise any influence in politics and also acknowledges absence of any limitations on
the authority of the prince within the sphere of religion or in Natural law. If the ruler
accepts restraints in his dealings with his subjects. It is purely voluntary. Thus with
Machiaveli Politics becomes a secular science and the state becomes an absolute an end
in itself with no moral restraints on its power authority.
With Jean Bodin the theory of sovereignty is developed in a form which has
influenced all subsequent writings on this topic. Bodin takes pride in the fact that he is
first jurist in attempt to define the term sovereignty. His six books on common weal
published in 1576 was a practical response to the tension between the church and the
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state. Bodin held that the state was primarily concerned with maintenance of order and
not with establishment of true religion. So he sought to strengthen the state against the
church. To him civil war was worst of all evils. So he defined sovereignty so as to
exclude the revolution on the part of the subjects.
“It is clear that the principal mark of sovereign majesty is right to impose laws
generally on all subjects regardless of their consent.”
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Thus the essence of sovereignty was the power to command and commands must
proceed from a single will. Since law was simply a commands of the sovereign obligation
could not be conditional on the justice of the command. But Bodin was careful to make
reasonably clear that the sovereign was not absolute like the Aristotle monarch but he
was not bound by Natural laws and laws of God. It will be noticed that the position of
Bodin differs some what from that of Machiavelli since the letter can conceive of no
moral or natural restraints upon the action of his sovereign while the former on the
other hand insists upon them and delineates the scope of the law of the nations. The
reception of Roman law and the writings of Bodin accentuated the movement towards
the development of the theory of state sovereignty and the liberation of state from the
control of moral and natural law. Bodin binding the term sovereign used in French legal
language to describe courts like Parliament de Paris from which there was no appeal
introduced the theory into politics and also into international relations. So sovereignty
applied inwardly to internal politics as a powerful urge to the development of
centralization and to the termination or provincial and local autonomy. Applied
outwardly to the sphere of external politics it brought the transformation of the tangled
system of European public life.
Thus Bodin is the originator of all modern theories of state sovereignty.
Succeeding generations have modified his original conceptions of substitute a body
ultimately responsible to the people as a whole as an alternative to his absolute
monarchy but attributes of sovereign unaltered.
Hobbes cast off the limitation which Bodin has received from the middle ages
holding that natural law had not significance for the sovereign except as he interpreted
and accepted it Rousseau ‘holding that sovereign was only in the body politic or in the
general will laid down that it can have no legal limitations. Sir Pollock defined
sovereignty as the capacity of making, declaring and amending the law without reference
to any other authority and without any legal limit to its own power. It has generally been
the view of English analytical jurists that uncontrolled law making power is what was
called as Sovereignty. Certain other French writer argued that it was not uncontrolled
law making power that was the distinguishing features of sovereignty but legal
accountability for all acts done in the capacity of the sovereign.
For American purposes according to Roscoe Pound sovereign was incapable of
legal limitations but the separate organs through which the sovereign acts may be held
legally to certain spheres or modes of action. This has been put into what has been
called at the mandate theory. In Roman law mandate was the undertaking of a

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gratuitous services for another at his request. In the civil law mandate come to be used
for contractual agency. Accordingly a theory was propounded in the 18 th century, which
maintained that certain person or body of persons by virtue of a constitution might have
a mandate from the people to act as sovereign with the authority defined in the
instrument. When and so far as they acted within the limits of the mandate they were
legally uncontrollable. Their acts were those of the sovereign. But when they acted
outside the mandate they acted as private individuals only. This mandate theory of the
publicists had much influence in the formative period of American constitutional law.
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At this juncture it become necessary for us to deal with Austin’s views on
sovereignty, since it is the central concept in his definition of law which he defined as a
command of the sovereign. Austin defined sovereignty in the following manner.
“If a determinate human superior not in the habit of obedience to a like superior,
receives habitual obedience from the bulk of the members of given society, then that
determinate superior is sovereign in that society and the society is a society political and
independent.”
So according to Austin’s definition, sovereignty has two aspects. In its external or
negative aspect the supreme political authority must not be in the habit of obedience to
any other like political superior. In its internal or positive aspect the supreme political
authority must receive habitual obedience from the bulk of the members of the society.
The essential attributes of sovereignty according to Austin can be outlined as follows:
5.8 ESSENTIAL ATTRIBUTES OF SOVEREIGNTY
a) Sovereignty within a state is Essential
Within every politically organized society there must exist some persons or group
of persons whose authority will not be questioned and whose will prevails within the
society. This idea has been attacked by Dr. Jenks who maintains that sovereignty after
Hobbes calls, it is not a permanent conditions of our political and legal existence but
only a transitory one and the day will come when harmony will govern the relations of
men. But this idea of Utopia is farfetched and till it arrives the concept of sovereignty is
essential.
b. Soverign power is indivisible
In every state there is only one person or defined group which is politically
supreme and one only, because two equally opposing wills will nullify each other. So,
logically sovereign power cannot be divided Austin applying his thesis to the British
Constitution came to the conclusion that sovereignty reside in the Crown in Parliament.
But Austin’s theory of Sovereignty can be applied only to Unitary type of Governments
and not states with federal type constitution. In a federation, sovereign power is
distributed between the federal and stat Government. This distribution being
accomplished through a written constitution where to locate the sovereignty in a
federation? Austin landed himself in a considerable difficult when the tried to apply his
theory of federation.
b) Sovereign power is illimitable
Since the sovereign is the source of law, there can be logically no restrictions on
the law making powers of the sovereign. The authority of the sovereign is free and
infinite in extent. The contention of Austin again runs into difficulties when we try to
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apply his theory to states which have adopted written constitutions which restrict the
power of the state. How then we can say that sovereign power is illimitable.
c) Sovereign power is determinate
The sovereign power can be identified or located on a person or a body of persons
who ultimately wield the power. In England, Austin identified the Sovereign in Crown in
Parliament. But turning to the U.S. Constitution he was oafiled. Since the U.S.
Constitution divides the authority between the different organs of the Government i.e.
legislative, judicial and executive each organ is supreme within its own spheres of action.
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The theories of sovereignty which were obtained in the 19 th century were devised
to meet the practical needs of a doctrinal basis for a central law waking authority, to
offer a theory which justified the exercise of law making power by the imperial
government. New problem growing out of new activities of politically organized societies
have been calling for new theories.
After the disaster of the First World War there was widespread belief that the
destructiveness of modern war and the growing proximity and interdependence of
nations was bound to lead the world out of the age of national sovereignty and of the
national state as the ultimate repository of legal and political power. The alternative
version of universal world began to take shape in the covenant of the league of Nations.
But this was seen only as the beginning of the further developments which would
ultimately lead to a world lead ration or a world state. Unfortunately the league was a
failure and the world paid a very heavy price in the form of a Second World War. Shaken
more deeply and disorganized the world community approached this problem of world
order more realistically. This resulted the United Nations Charter which made a limited
gesture in the direction of World Law supremacy over national sovereignty by
empowering the general Assembly to make recommendations by a simple or in important
matters by a two thirds majority vote. However, the charter itself concedes the primacy
of the national states through the domestic jurisdiction clause which preserves the
national sovereignty. The triumph of national sovereignty to some extent is illusory
because of the division of United Nations into different regional and ideological blocks
and the power of veto conferred on the Big Five. Whether we can succeed in propounding
a new theory of sovereignty which will accommodate the numerous nation state of this
world and thus lead a peaceful co-existence or allow the concept of supremacy of
national sovereignty and there by ace another cataclysm, we cannot predict. Only time
will give us an answer.
5.9 SALMOND’S THEORY OR SOVEREIGNTY
As the book on jurisprudence by Salmond is the prescribed text book I am herein
going to discuss Salmond’s theory. Austin’s nature of Sovereign power as already seen
can be reduced to three fundamental propositions which are: 1) Sovereign power is
essential in every state the doctrine of essentiality 2) That sovereign power is indivisible
– doctrine of indivisibility and 3) the sovereign power is unlimited, illimitable-doctrine of
illimitability. These three doctrines have been discussed critically.

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Salmond concurs with Austin’s first proposition, for there must be sovereign
power in every state, otherwise all power would be subordinate. But to Salmond
sovereign power is both divisible and limited and limitable.
This is true of all states, whether they are Unitary or Compsoite. Though Austin’s
theory of sovereignty is based on the sovereign power found in the British Constitution
which is an Unitary state, yet Salmond is able to show that sovereign power in the
British Constitution is divided. It is divided into Legislative and Executive power. The
legislative power resides in the Crown and the two Houses of Parliament and the
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Executive power atleast in theory resides in the crown by itself. This Power is not
shared by the Crown with any other body.
The Executive power in the Crown is limited in extent as today the ministers
exercise much of that executive authority. As to the legislative power in the British
Constitution. In theory the British Parliament enjoys legislative omnipotence in that an
Act of Parliament cannot be questioned in the courts of Law, nor can they be declared
void. But in practice the legislative power of Parliament is limited by the following factors
1) Public opinion 2) Resistance by the government 3) Physical impossibilities, 4) Foreign
Policy, 5) International law.
As law opposed to public policy or International policy will soon have to be
repealed. Suppose the British Parliament passes a law depriving a section of the
community right to vote, or makes a law that all blue eyed babies are to be killed, such
‘awe will have to be repealed.
The Parliament also cannot by an enactment change a man into a woman.
So Austin’s theory is inapplicable to the Sovereign power found in the British
Constitution. There is no judicial sovereignty after 1911 after the passing of the
Parliament Act, 1911 in the British Constitutions.
5.10 INDIAN CONSTITUTION
There is no judicial sovereignty in the India Constitution. The powers of the
Supreme court can be impaired by an Act of Parliament.
The Sovereignty is divided into executive and legislative Sovereignty. The
Executive Sovereignty resides in the President of India. The legislative sovereignty in the
president and the two Houses of Parliament. But this legislative sovereignty is limited as
the constitution can be amended only by special procedure.
So Austin’s theory of Sovereignty is inapplicable even to the Sovereign power
found in the Indian Constitution.
5.10 SUGGESTED QUESTIONS
1. Enumerate the primary and secondary functions of state.

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LESSON-6

ADMINISTRATION OF JUSTICE

STRUCTURE
6.1 INTRODUCTION
6.2 ADMINISTRATION OF CRIMINAL JUSTICE SYSTEM
6.3 THEORIES OF PUNISHMENT
6.3.1 Retributive Theory
6.3.2 Explanatory Theory
6.3.3 Deterent Theory
6.3.4 Primitive Theory
6.3.5 Reformative Theory
6.4 ADMINISTRATION OF CIVIL JUSTICE
6.5 PRIMARY AND SECONDARY FUNCTIONS OF COURTS OF LAW
6.5.1 Declaration of right
6.5.2 Action Against State
6.6 ADVANTAGES OF JUSTICE ACCORDING TO LAW
6.7 DISADVANTAGES OF JUSTICE ACCORDING TO LAW
6.8 SUGGESTED QUESTIONS
6.1 INTRODUCTION
While dealing with the theories as to the functions of the state we dealt with the
view of Hobbes, who maintained that the sovereign carried two swords, the sword of war
and the sword of justice. So one of the most important functions of the state is the
maintenance of peace and order. Men have conflicting demands and interests and are
bound to fight with each other to assert their interests. It was this type of situation
which necessitated a natural umpire called the state. As a corollary it followed that the
terms of the social compact, out of which state originated clothed the state organization
with authority to administer justice to the members of the society. Salmond defined
administration of justice as the maintenance of right within a political community by
means of the physical force of the state. It is the application by the state of sanction of
force to the rule of right.
The above definition of Salmond has been questioned by many writers on the
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ground that it is not the force of the state which obtains the observance of the law for
there are other factors as well such as social sanctions, habits, customs etc. which
assist in the observance of the law. To a large extent in all civilized societies this element
of force of the state in the administration of justice has been merely extent. It is now for
the most part of the state to declare the rights and duties of its subjects without going
beyond declaration of enforcement. As stated by Salmond a society in which the power of
the state has never been called into actual exercise marks not the disappearance of
governmental control but the final triumph and supremacy of it. It has been suggested
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by certain authors that force as an instrument for the coercion of mankind is merely
temporary, provisional, and incidental to the development of a perfect civilization. There
may not be any necessity of administration of justice in an utopia, but in the present
materialistic world it is impossible to live without the machinery of justice.
Administration of justice thus must be regarded as a permanent and necessary element
of civilization and as a device that admits no substitute.
Administration of justice can be classified into administration of criminal justice
and administration of civil justice. From the practical standpoint, the importance of this
distinction lies in the following points. Civil justice and criminal justice are administered
by different sets of forms, their courts being different. The outcome of the civil
proceedings are also different. The outcome of the civil proceedings if successful result in
a judgement for damages while those of criminal proceedings ends up in punishment.
6.2 ADMINISTRATION OF CRIMINAL JUSTICE
Punishment is one of the chief purposes of administration of criminal justice. The
term punishment in its psychological sense is not commonly and appropriately applied
to a situation in which deprivation or unpleasant experience is deliberately imposed by
one party upon another because of an actual or supposed misdeed which is knowingly
and intentionally committed by the latter. It can be rightly defined as the authoritative
infliction of suffering for an offences.
The processes of formal punishment in western civilization have evolved slowly
through the centuries and from a contemporary perspective appear to have become
progressively more complex, refined more human discriminating and flexible. Evidence of
governments concern with punishing persons who commit crimes to mitigate the rigours
of self help practiced by the nations and their clan members comes not only from
historical account of early judicial agencies but also from the field researches done by
modern anthropologists. Until the last century in Europe the structuring of penal policy
by the prevailing religious and political status hierarchies as explicit. The nobility was
not equated with the comment in punishment. The latter were dealt with harshly
especially when the victims belonged to the nobility. This was justified by explanation of
crime as a consequence of base nature a condition presumed to be most frequent in the
law born. As alternate theory maintained that crime result from the possession of one’s
spirit by the devil through witchcraft and wizardry thereby justified punishment by the
divinity.
The beginnings of modern penology can be attributed to the writings of Cesare
Beccaria. Beccaria in his Essay on Crime and Punishment exponded his postulates for

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a new penal policy. It had an immediate and tremendous influence in Europe and in
America. Beccaria’s two maxims were those of all utilitarians.
a. Pleasure and pain are the main springs of all human actions.
b. The end of good legislation must be the greatest happiness of the greatest
number.
Both crimes and punishments were pains and therefore evil and a scale of crimes
can be formed according to the extent of social evils they produced. The test was social
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injury and not private intention. From this we followed that there ought to be fixed ratio
between crimes and punishment i.e. the measure of prevention and not vengeance
which was relevant. It was enough that for any given crime the pain or punishment must
minimally exceed the pleasure gained from its commission while more is superfluous
and tyrannical.
In the half a century that followed Beccaria’s arguments were extended by
Voltaire. Bentham, Romilly and others reflecting the philosophy of utilitarianism. This
resulted in the so called classical criminal law which still provides the framework for our
penal codes. This legal perspective called for punishments based on the offence rather
than on the offender and calculated to inflict no more pain than that was necessary to
abset the satisfaction which the perpetrator might have gained through his crime.
Imprisonment and forced labour are punishments which can be precisely
graduated in term of time and were well suited to the employment by judges of what
Bentham called a felicific calculate. This was the presumption of punishment in precise
degrees of severity so that the pain the court imposed balanced the presumed
gratifications from the commission of the crime. High valuation of liberty and the
respect for all human beings which were fostered on the democratic revolutions also
promoted a preference for improvement or labour as penalties rather than torture or
death. As a result of Beccaria’s work imprisonment replaced capital and corporeal
punishment in Europe.
6.3 THEORIES OF PUNISHMENT
The various theories which attempts of explain punishment are not consistent
with one another. While all of the following theories carry a degree of plausibility none of
them seem to account for more than part of the problem. The existing justification on
punishment can be listed as follows; Retribution, explation, deterrence, prevention and
reformation.
6.3.1 Retributive theory
Retribution is the oldest and most ancient justification for punishment according
to which a wrong is righted by an offender receiving his just deserts. The notion of
retribution involves a get even spirit an eye for an eye and a tooth for a tooth. The idea
that evil should be returned for an evil and that as a man deals with other so should be
himself be dealt with, is closely linked with that of revenge. Punishment thus according
to this theory is not longer a mere instrument for the attainment of the public welfare
but has become an end in itself. The retributive theory proceeds on ethical grounds and
concentrates upon the moral culpability of the wrong doers and is still advocated by

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many penologists. The demand for punitive retribution still lives in the minds of the
individuals and cannot be ignored totally. No matter what advantages and disadvantages
of the theory are society’s desire for retribution is still great and cannot be dishonoured.
6.3.2 Explatory Theory
The notion of explation is that the offender by suffering pays the debt demanded
by justice and owned to the authority inflicting the suffering and so becomes reconciled
once more with that authority. It is often stated that punishment for crime enables the
criminals to pay their due in the hard coinage of punishment. George Mad maintained
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that the criminal in the process of punitive action becomes a scapegoat that is the object
of chastisement scourging and degradations his punishment provides an outlet for
outraged feelings caused by his offence. Society also preserves its attitude of hostility
towards the law breaker, as a common enemy. Punitive action against the culprit gives
the community a sense of its moral superiority an assurance that virtue is rewarded.
Explation enables criminal to pay his debt and start a life with clean state a fresh. The
attitude of the modern society is to do away with physical torture and to withdraw the
application of punishment from the public eye has lessened to a certain degree the force
of explation. However, the community is still able to derive satisfaction from the fact that
justice is being done though hidden from sight.
6.3.3 Deterrent theory
When punishments regarded as a means to teach the offender a lesson and to
show others what will happen to them if they violate the code, it is justified on the
ground of deterrence. The deterrent effect of punishment has generally been ascribed to
the perpetual threat or to the infliction of punishment upon the actual transgressor. The
object of punishment is to strike terror into the hearts of malefactors, During the recent
years deterrent effect of punishment has failed badly. Though this may be the position
we still back upon them when circumstances render their application necessity. In the
words of Oppenheimer, “deterrent as an aim of punishment though it has lost much of
its former importance cannot be said to be entirely eliminated from the policy of the
modern court of criminal jurisdiction.”
6.3.4 Preventive theory
The preventive theory of punishment associated with the name of Feverbach
asserts that prevention is better than cure. The psychological process upon which the
preventive theory rests may be stated that if the violations of law are altogether to be
prevented, there must exist physical restraint. Such a constraint can only be of a
psychological nature. While all offences have their psychological origin in the sensual
sphere this sensual impulse of action. The reason why such punishments are
necessary and exist is the necessity of preserving the freedom of all by the suppression of
such sensual impulses. Preventive theory aims at disabling the offender from committing
or repeating the offence by imposing physical restraints upon his freedom of movement
etc. Extreme form of disablement being death sentence.
6.3.5 Reformative Theory
Emphasis on training increased in the latter half of the 19th century with the
reformatory movement, which is usually traced to the Elmina Reformatory of New look.
Two major problems have been widely recognized in reformation effects.
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a. It is the fact that society has seldom been willing to invest in its treatment
programmes, funds sufficient to correct serious educational, vocational,
psychological and other deficiencies of most offenders.
b. Demonstration by research that for so many offenders such treatment prevents a
return to crime especially when their social acceptance becomes difficult.
So reformative theory emphasizes on rehabilitation or reform. Reformation of a
criminal in its wider sense means change in the mental habits which implies that he will
not offend again. When it is said punishment brings about such a change reformation
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maybe looked upon either as a means for the protection of the society or it may be
conceived as an end in itself. It has been argued that a true conversion offers more solid
guarantees for future good behaviour than mere terror. This theory considers the crime
as being caused by the moral degeneration of the offender. The criminal law is infact a
branch of the law of guardianship. The state takes the culprit under its care and gives
him moral training. Prison is in fact a house of correction. The reformative theory takes
into cognizance only those kinds of punishments which are educative or corrective.
There is perhaps no theory which proves more attractive to the modern humanitarian
sentiment as the reformative theory does. For it robs punishment of its sting Salmond
while giving a warning said, “the reformative elements must not be overlooked but
neither must it be allowed to assume undue prominence. How much prominence it may
be allowed is a question of time, place and circumstances.
6.4 ADMINISTRATION OF CIVIL JUSTICE
Difference between civil and criminal justice is one of the procedure and not of
substance for is both cases the idea is to impose liability upon the individual who
commits such wrongs. From a practical standpoint the importance of the distinction lies
in the difference in the legal consequences of crimes and civil wrongs. A successful civil
proceeding results in a judgment for damages or recovery of debts, or specific restriction
of poverty etc., whereas in the administration of criminal justice the judgement of the
court relates to punishment. The main object of civil justice is to enforce rights while the
main object of criminal justice is to punish the evil doer. However, the distinction is not
clear cut, For, criminal proceeding may result in an order against the accused to make
restitution or compensation while civil proceedings may result in an award of punitive
damages. It remains true, however, that the basic objective of criminal proceedings is
punishment and the usual goal of civil proceedings is non-punitive.
Moreover, civil justice is administered according to one set of forms, criminal
justice according to a different set. Civil justice is administered in one set of courts,
criminal justice in different set of courts.
Different jurists have provided with different tests distinguish between civil and
criminal wrongs. According to Holds worth the distinction between a crime and the civil
wrong depends upon the element of mensrea. According to Back stone, civil injuries
upon the private wrongs and concerns private individuals while crimes are public wrongs
and concern, the state. For Salmond the distinction between civil and criminal wrong is
based not on any difference in the nature of the right infringed but on the difference in
the procedure prescribed and in the nature of the remedy applied. For Austin the
difference does not depend either in the nature of the offence committed or in the nature
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of the remedy provided but depends upon the following two factors.
a. Who can initiate proceeding
b. Who can enforce or remit the sanction against the wrong doer.
If it is the individual who initiates the proceedings and enforces the sanction it is
civil wrong and entails civil liability. If the state initiates the proceedings and enforces
the sanctions it is a criminal wrong. According to Keany an offence remissible at the
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discretion of the injured party is a civil wrong while one punishable and remissable by
state is a crime.
Administration of civil justice falls into parts depending upon whether the right
enforced is a primary or sanctioning right. A sanctioning right is one which arises out of
the novation of some rights. All other right are primary. These are rights which have
some other sources than wrong. Thus my right not to be libeled or assaulted is primary
but my right to obtain pecuniary compensation from the person who has libeled or
assaulted me is sanctioning right. My right to the fulfillment of a contract made with me
is a primary right, but my right to damages for its breach is a sanctioning right. A
sanctioning right almost invariably consists of a claim to receive money room the wrong
doer. Enforcement primary right may be conveniently termed as specific enforcement
while enforcement of a sanctioning right may be termed as sanctional enforcement.
Examples of specific enforcement are proceedings whereby a defendant is
compelled to pay a debt to perform a contract etc. In all these cases the right enforced is
a primary right itself not a substituted sanctioning right. What the law does is to insist
on the specific establishment of re-establishment of the actual state of things required by
the rule of right, nor of another state of things which may be regarded as its equivalent
or its substitute.
Sanctioning rights may be divided into two kinds by reference to the purpose of
the law in creating them. They are either rights to exact and receive a pecuniary penalty
or rights to enact and receive damages or other pecuniary compensation. In the first of
this kind law creates and enforces a sanctioning right which has in it no element of
compensation to the person concerned but is appointed solely as a punishment for the
wrong doer. This is so when pecuniary penalty is payable to the state.
This second form of sanctioning of rights-the right to pecuniary compensation or
damages is more important in modern law. It may be stated as a general rule that the
violation of a private right gives rise in him whose right it is to sanctioning right to
receive compensation for the injury so done to him. Such compensation must itself be
divided into two kinds which may be distinguished as restriction and penal redress. In
respect of the person injured indeed these two are the same in their nature and
operation but in respect of the wrong doer they are very different. In restitution the
defendant is compelled to give up the pecuniary value of some benefit which he has
wrongfully obtained at the expense of this plaintiff.
Penal redress on the other hand is a much more important, form of legal remedy
than mere restitution. The law is seldom content to deal with a wrong doer by mere
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compelling him to restore all benefits which he has derived from his wrong it commonly
goes further and complex him to pay the amount of the plaintiff’s loss and this may
exceed the profit if any which he has received. It is clear that compensation of this kind
has a double aspect and nature. From the point of view of the plaintiff it is compensation
and nothing more but from that of the defendant it is a penalty imposed upon him for
his wrong doing. The compensation of the plantiff is in such cases the instrument which
the law uses for the punishment of the defendant and because of this double aspect it is
here called as penal redress.
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6.5 PRIMARY AND SECONDARY FUNCTION OF COURTS OF LAW
This primary function of the courts of law as we have been, discussing in the
proceeding chapter is administration of justice i.e. hearing disputes and deciding them
by established rules recognized by the law of the land. Apart from this primary function
as a medium of conflict resolution amongst the citizens, the courts also perform certain
other functions which are called as secondary functions. The courts while dispensing
justice to the litigants normality follows what may be called as the adversary system of
trial. This method which is the common feature of all the modern legal systems is based
upon the assumption that when the litigants are fighting against each other all the facts
and state of law will automatically be available for the court to decide the dispute. The
court need not venture on its own (thought it has the power) to ascertain facts and the
legal principles. These important functions being, played by the advocates of the litigants
So the normal judicial procedure involves two parties whose interests clash and which
the court must solve by giving a decision. This is administration of justice in the
narrowest and most proper sense of the term which involves the application by the state
the sanction of physical force to the rules of justice. However, administration of justice in
a wider sense includes all the functions of the courts of justice whether they conform to
foregoing type or not. It is to administer justice in the strict sense that the tribunals of
the state are established and it is by reference to this essential purpose that they must
be defined. But when once established, they are found to useful instrument by virtue of
their constitution procedure, authority of special knowledge for the fulfilment of other
more or less analogous functions. To these secondary and non-essential activities of the
courts the term administration of justice has been extended. They fall chiefly into four
groups according to Salmond.
6.5.1 Action against the state
The courts of law exercise the function of adjudicating upon claims made by
subjects against the state itself. This type of adjudication forms a sizable part of modern
constitutional legislation and is considered to be one of the most important functions of
the courts of law in all the democratic countries. Although these actions against the
state are tried as if they were claims between subjects and a judgement is given by the
court it must be noted that the element of coercive force as lacking. The state is the
judge in its own cause and cannot exercise constraint against itself. Nevertheless, in the
wider sense administration of justice includes proceedings against the state.

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6.5.2 Declaration of right
The second form of judicial action which does not conform to the essential type is
that which results not in any kind of coercive judgement but merely in a declaration of a
primary right. A litigant may claim the assistance of a court of law not because his rights
have been violated but because they are uncertain. What he desires may not be any
remedy against an adversary for the violation of a right but an authoritative declaration
that a right exists. Such a declaration may be the ground of subsequent proceedings in
which the right, existence and scope has been confirmed by the court already, having
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been violated receives enforcement. Examples of declaratory proceedings are declaration
of nullity of marriage, declarations of legality or illegality of the conduct of state offices,
authoritative interpretation of will and statutes.
3. Administration: The third form of secondary judicial action includes all those
cases in which courts of justice undertakes the management and distribution of
property. Examples are administration of trusts, liquidation of companies by courts,
administration of insolvent’s estates.
e. Titles of rights: This category includes all those cases in which judicial decrees
are employed as the means of creating, transferring or extinguishing rights. Examples
are an order of discharge in bankruptcy, a decree of foreclosure against a mortgagee etc.
In all these cases the judgement or the decree operates not as remedy of a wrong but as
the title of a right. So far we were dealing with administration of justice according to well
established rules of laws. It is very obvious that in a crowded world adjustments or
compromises between the desires and activities of each and those of his fellow are
necessary at many points. This has led to a situation where we are slaves of law in order
that we may be free. (Cicero)
The term justice according to law means administration according to authoritative
percepts or norms (patterns), guides developed and applied by an authoritative
technique, which individuals may ascertain in advance of controversy and by which all
are reasonably assured of receiving like treatment. It means an impersonal, equal,
certain administration of justice so far as these may be seen by means of precepts of
general application. This no doubt has many advantages but it is not without short
comings.
6.6 ADVANTAGES OF JUSTICE ACCORDING TO LAW
a. Law makes it possible to predict the course which the administration of justice
will take.
b. Law secures against errors of individual judgement
c. Law secures against improper motives on the part of those who administer
justice.
d. Law provides the judge with the standards in which the ethical ideas of the
community are formulated
e. Law gives the judge the benefit of all the experience of his predecessors.
f.
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Law prevents sacrifice of ultimate social and individual interests to the more
obvious and imprudently pressing but less weighty immediate interest.
6.7 DISADVANTAGES OF JUSTICE ACCORDING TO LAW
1. The idea of justice according to law is administration by a perfect system of
rules by which either all cases are covered expressly by the rules or are covered
indirectly through rigid deduction or a sort of mathematically exact development of the
logical content of what was expressed. Through this perfect system of rules all causes
might be determined with an absolute certainty, like result in like cases and an absolute
 47
assurance that an accurate prediction of result might be made if the facts are rightly
understood, Experiences has shown that this ideal cannot be a realized. Moreover, cases
continuously arise where there must be a choice between the authoritative premises
from which ground of deciding the particular case may be deduced and no precept
absolutely govern the choice.
2. There may not be any rule and no authoritative percept at hand. here the court
must develop a premise by analogy.
3. Certainty and uniformity are sought through rules or through logical
deductions from fixed purposes and narrowly defused conception. So they are made and
enforced blindly impersonally more or less arbitrarily.
4. Sometimes law is treated as an end rather than the means. Thus there is a
tendency to make law what is a practical matter over academic and over scientific.
5. Law begets more law and a developed legal system tends to attempt rules
where rules are not practicable and to invade the legitimate domain of justice without
law.
6. As law formulates settled ethical ideas it cannot in times of transition accord
wholly with more advanced conception of the present. There is always an element that
does not wholly correspond to the present needs or to the present conceptions of justice.
Thus law no doubt a remedy for greater evils, brings evils of its own, and the
remedy at times is worse than the cure.
6.8 SUGGESTED QUESTIONS
1. What is the purpose of administration of criminal Justice? Write a rate on
abolition of capital punishment.

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LESSON-7

SOURCES OF LAW

STRUCTURE
7.1 INTRODUCTION
7.2 LEGAL SOURCES OF LAW
7.3 SUGGESTED QUESTIONS
7.1 INTRODUCTION
Like many other terms used in jurisprudence the word source has been employed
with more than one meaning. Text book writers have used the term to denote the
following meanings.
Keeton: 1. That final authority from which the validity of all laws is ultimately
derived. In this sense the only source of law in modern communities is the state.
2. The means whereby a knowledge of the law is conveyed to an intelligent human
being. In this sense the statute book, the law reports and text books are sources of law.
But it would be more correct to say that these are sources of our knowledge of the law.
3. The materials out of which the law is eventually fashioned through the activity
of the judges. This is the only meaning which can property attached to the term sources
of law.
4. Sometimes the term is employed to denote the form or shape in which the
materials appear when they are moulded by the judges.
Patterns: 1. Literary materials which are to be found in the law libraries.
2. Authoritative form which are the result of the acts and utterances of official
and other agents of the state. These are authoritative sources of law.
3. The things from which material content of prescription and the idea that are
expressed in the body of law are derived. Austin gives three meanings of the term
sources of law.
a) The direct or immediate author of law is the person or body of persons by
whom the rule was originally formulated giving it the force of law. Such immediate
sources can be.
1. A legislature or judiciary
2. A political subordinate acting either as a legislature or judiciary.
3. Persons whose conduct form custom
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4. Persons who by conduct submit themselves to a rule of conduct towards each
other.
According to Austin sovereign is the source of all law and all law emanates either
directly or circuitously from the sovereign. Though all laws are derived from the same
source, immediately and directly laws may have different authors.
b. The second meaning of the term source of law are the earliest or original text or
documents form which the body of law may be known e.g. XII tables, corpus juris civil is
etc.
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c. The third meaning of the term ‘source’ denotes the causes which have been
brought into existence rules which have subsequently acquired the force of law.
Austin emphasizing the importance of sovereign for the existence of law came to
the conclusion that sovereign is the exclusive source of law. Accordingly legislation is the
most appropriate form of law since it expresses the will of a law giver. This is not true.
Nobody today can assume that legislation is the only source of law.
Holland. The term sources of law according to Holland has been used in four
different senses.
1. The word is used to denote the quarter from where we obtain our knowledge of
the law.
2. To denote the ultimate authority which gives them the source of law.
3. To indicate the causes which have brought the rules into existence.
4. To indicate the organs through which the state grants legal recognition.
Gray: Gray maintained a strict distinction between what we called as the law on
the one hand, and the sources of law on the other hand. To him law consists of rules
authoritatively laid down by courts in their decisions while we looked for it sources in
certain legal and non legal materials upon which the judges customarily fallback in
fashioning rules which make up the law.
7.2 LEGAL SOURCES OF LAW
Salmond classified sources as either legal or historical. The former are those
sources which are recognized as such by law itself and so binding force. Their binding
force is complete. Legal sources are those which must be permitted to influence the
growth of a legal system. Legal sources are authoritative and are allowed by the law
courts as of right. They are the only gates through which new principles can find
entrance in to the law.
Historical sources on the other hand lack formal recognition of the law. They are
unauthortative. They cannot claim like legal sources that they should be allowed as a
right. Thus historical sources operate only immediately and indirectly. They are merely
various precedent links in that chain of which the ultimate link must be some legal
source to which the rule of law is directly attached. All rules have historical sources. As
a matter of fact and historical they have their origin somewhere. But not all of the them
have legal sources. To illustrate this point Salmond considers a rule of law which is
based upon a precedent. The precedent itself may be founded upon the writings of
Potheir, who may have drawn the materials from corpus Juris of Justinian who again
may have derived them from Paretor’s edict. In this example, the precedent is the sole
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legal source of law as far as English law is concerned while others are merely historical
source only.
Salmond’s division of sources into legal and historical is a just one and an
important one; but it is not a complete one. There are occasions when a judge is
compelled to make a decision without the aid of any legal source of law when he is
thrown back upon his own innate sense of right and wrong. in deciding such a case he
will be subject to the influence of certain factors which are neither legal nor historical for
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they operate directly upon the minds of the judges and not immediately through the legal
sources.
This difficulty of classifying sources of law is surrounded by classifying them into
binding sources of law and persuasive source of law.
As against these views expressed by the jurists of the Analytical school, the
historical jurists have taken an entirely new position. Thus Savigny the founder of the
Historical School maintains law is the spontaneous evolution of the spirit of the
particular people which we call as the Volkageist. The formulation of law has its
existence in the common consciousness of the people which is manifested, in the
practices, usages, customs of the people. Therefore, custom is the only source of law. To
Savigny source of law meant the material from which law derives its content. Thus he
disagreed with Analytical jurists that sovereign is the sole source of law.
Classified with reference to their legal sources they are according to Salmond four
kinds of law.
a. Enacted law having its source in legislation
b. Case law having its source in precedent.
c. Customary law having its source in custom
d. Conventional law having its source in agreement (to be discussed under legal
concepts)
Classified with reference to their historical or material sources they are according
to Keeton four kinds of law.
a. Professional opinion
b. Religion
c. Principles of morality or equity
d. Decisions of foreign courts of justice.
We will first take up material or persuasive or historical sources of law for
discussion before proceeding to the legal sources.
a) Professional opinion: Professional opinion as a source of law has only
percussive authority only. The legal profession comprises three groups of persons the
judges, practicing lawyers, and the teachers of law and accordingly professional opinion
as a source of law may be divided into the following classes.
a. Obiter dicta of the judges
b. General opinions of legal profession
c. The opinion of the writers upon legal subjects
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Obiter dict are statements of law made by judges in the course of deciding
arisions incidentally out of the circumstances of the case but not necessary for the
decision. The value of such dicta as sources of law naturally varies a great deal
depending either according to the reputation of the judge making them or according to
their relation to the rest of the law upon the topic in question.
The legal profession exercises a powerful influence upon the development of law.
The importance of legal profession in best exemplified in the Roman legal system. In
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Roman legal system the persons who administered justice were not skilled in law. They
were mere citizens chosen at random to decide the disputed matter. The judges formed
the specific issues and submitted them to the jurists for opinion. Though there was no
obligation on the part of the Roman judge to follow his opinion nevertheless opinion of
such jurists had a very powerful influence.
The third division of professional opinion comprises the opinions of the writers of
text books. A supreme example of influence may be observed in the growth of
international law. Owing to the peculiar structure of the science its rules have frequently
depended to a great extent upon the opinions of jurists. It should also be remembered
that international law in its present form would have been impossible except for the
labours and genius of Grotius. Generally speaking the influence of the writers of text
books has been much greater in Roman law than in English law.
b. Religion: Both Henry Maine and James Frazer agree that the religious fear of
evil exposed by a priestly order in the principal instruments in securing uniformity of
conduct, in primitive society at a period when law cannot be said to enjoy any
independent existence. Eventually out of certain ceremonial observance develop
collection of secular rules enforced by physical sanctions. This process is traced in an
interesting fashion by Frazer in Folklore in the Old Testament. One phase of the progress
of society centers around, the separation of law and religion. The Jews regarded their
law as Divine in origin and in consequence their administration was never freed from
priestly control. In the East the Laws of Manu. Hindu Law and Mohammedan Law are
supposed to be divinely inspired. Due to Renaissance and Reformation the secular
power of the kings were well established in Western Europe relegating the church and
religion to subsidiary position, deprived of any independent binding source of law.
However, in the East religion survive as a binding source of law practically to the present
time.
c) Principles of Morality or Equity: On every case which comes before him it is
necessary for the judge to reach some definite conclusions although all the recognized
sources of law are silent. In such a case the judge must decide issue according to its
merits and in doing so he will usually be guided by the principles of morality, equality,
fair dealing current in that community as reflected in his own intelligence. Even where a
binding source exists his method of applying, it will be regulated to some extent by moral
principles. In most communities such moral principles will have their origin in some
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system of religion. The moral outlook of the community itself progress. Thus the
principles underlying a system of law require periodic revision if the law is to keep pace
with the moral growth of the people. It is impossible to accomplish this revision by
legislation alone. So the bulk of this work may be achieved by the views upon morality
held by judges and which are applied by them in deciding cases.
Rules of morality till recent times have been deduced from religion. However, for
the Greeks religion was held to be in sufficient sources of moral rules, Greek philosopher
 52
therefore supplied the missing moral ideal by evolving the conception of law of nature
based on reason. Law of nature indicated the object of human law, that it should
attempt to confirm to an ideal standard deducible from the dictates of Nature through
the reasoning faculty with which the human species is endowed. The same conception
also influenced the development of Roman law. The moral or equitable rule in Roman
System of law was aimed at bringing that system in closer conformity with reason’s
perfect law. In the middle ages a fusion took place between religion and reason. The law
of God is perfect therefore it is that ideal law which human reason elaborates. Therefore,
those equitable principles which should modify human law are desirable equally from
Divine ordinance or from reason. However, in modern times legal philosophy has freed
itself from natural religious basis of morality.
The growth of a system of equity in Roman and English Law will be dealt with
more in detail in ancient law. Suffice here to note that both the systems of equity were
the result or rigidity of the respective common laws and equity was devised by the king
to mitgate the hard-ships caused by the rigidity of law.
The decision of foreign courts of justice:
The countries of the commonwealth have legal systems which are based on
common law of England. So it is permissible for courts of the common law countries to
seek guidance from the decisions of courts of other countries. But here the decisions of
foreign courts have persuasive force only and are not binding as such.
7.3 SUGGESTED QUESTIONS
1. State briefly the various sources of Law.

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LESSON-8

LEGAL AND FORMAL SOURCES

STRUCTURE
8.1 CUSTOM
8.2 OUTSTANDING FEATURE OF CUSTOM
8.3 CLASSIFICATION OF CUSTOMS
8.4 APPLICATION OF CUSTOM
8.5 JUDICIAL TESTS OF VALID CUSTOM
8.6 JUDICIAL PRECEDENT
8.7 CLASSIFICATION OF PRECEDENTS
8.8 OPERATIONS OF THE DOCTRINE OF PRECEDENT IN INDIA
8.9 CIRCUMSTANCES DESTROYING AND WEAKENING THE BINDING FORCE OF A
JUDICIAL PRECEDENTS
8.10 RATIO DECEDENT AND OBITER DICTA
8.11 DOCTRINE OF PROSPECTIVE RULING
8.12 SUBORDINATE LEGISLATION
8.13 PRINCIPLES OF INTERPRETATION OF STATUE
8.14 THE MISCHIEF RULE OR THE RULE IN THE HYDON’S CASE
8.15 SUBSIDIARY RULE OF INTERPRETATION
8.16 SUGGESTED QUESTIONS
We saw in the last chapter the legal sources are those sources which are binding
perse i.e. their authority is complete. We will take up the first three sources of law for
analysis under this chapter reserving the conventional law for a later discussion.
8.1 CUSTOM
All creatures are creatures of habit. In the lower forms of life habitual behaviour,
mysterious in origin and operations is called instinct. Only a fine line divides the
instinctive behaviour of certain higher organisms and that of primitive man. At a certain
stage of his development man while retaining some instinctive reactions comes to
possess an increasing degree of choice in his habit and customs. The mere existence of
a society, the mere plurality of individuals give rise to customs from which no single
member of the totality can completely divorce himself. Our highly developed societies of
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modern world are just as replete with social customs as the primitive societies of the
past. These customs are doubtless more rationalized and for the most part less
superstitious than once they were but they are quite as numerous and quite as
powerful. In varying degrees they all possess a sanction. To disregard them involves
some kind of penalty.
In all legal systems custom plays a very important role in the development of law.
When a person has been doing a thing regularly over a substantial period of time it is
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usual to say that he has accustomed to it. This habit of his may not concern anyone but
himself or it may affect only those who are in the immediate circle. But when a large
section of the people are in the habit of doing a thing over much longer period it may
become necessary for the courts to take notice of it.
The beginnings of law in custom according to Maine. In the 19 th century
anthropologists who studied primitive societies assumed that law and custom were two
different conceptions. Law belonging to developed societies while custom belongs to
primitive societies. In the primitive societies, custom was conceived to be very rigid,
obedience being secured by group sentiment, fortified, by religions and magic. It was
impossible to differentiate between religious rituals from legal rules.
Twentieth century field research by anthropologists among primitive societies
gave a more profound understanding of the working of the customary rules within the
society. Researches by scholars established that primitive people possessed a system of
law in a genuine sense. Amongst the scholars who made substantial contribution to the
study of custom in primitive societies, mention could be made of the writing of Lowie,
Malinowski, Hoebel, Gluckman and Diamond.
8.2 OUTSTANDING FEATURE OF CUSTOM
The characteristic feature of great majority of customs is that they are essentially
non-litigous in origin. They arise not from any conflict of rights adjusted by a supreme
arbiter but from practices prompted by the convenience of society and of the individual.
So the starting point of all customs is convention rather than conflict just as the
starting point of all society is co-operation rather than dissension.
Custom is the embodiment of these principles which have commended themselves
to the national consciousness, justice and public utility. Existence of an established
usage forms the basis of rational expectation of its continuance in the future. To the
historical jurists custom carried its own justification, because it would not exist at all
unless some deep seated need of the people or some native quality of temperament gave
rise to it. To these jurists all law is essentially the product of natural forces associated
with the spirit of each particular people and nothing is more representative of these
evolutionary processes than the customs which are found to exist in each community
and which are as indigeneous as its flora and fauna. Custom is the badge and not a
ground of origin of positive law. Puchta, Savigny’s disciple carried this principle still
further. To him, custom was not only self sufficient and independent of legislative
authority but was a condition precedent of all sound legislation. He found the basis of
customary law in the collective purposes of the nation and express legislation could be

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useful only in as far as it embodied this purpose as already manifested in custom. The
starting point according to all historical jurists is the Volkageist which exists defacto and
which must be accepted without any attempt to explain it as a rational phenomenon. It
is primarily a sociological not a legal fact. Law is one among many of its manifestations.
But custom comes early among the sefestations and is a reflection of the convictions of
the people. In itself it creates nothing. It is not the hammer. It is the spark stauck from
the anvil. Its effect is to make known the existing spirit of the people. All law whether
applied by judges or made by legislators must accord with this native Volkageist.
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A closer scrutiny of these opinions of the historical jurists will reveal that many
customs which have taken deep root in the society do not appear to be based on any
general conviction of their righteousness or necessity or upon any real and voluntary
consensus. Slavery was almost the universal practice of the ancient world. It was not
accepted without such criticism from those who concerned themselves with its moral
also posed to its merely utilitarian aspects. The truth is that slavery was custom based
not upon the needs of the popular majority but of a ruling minority. Thus customs
establish themselves not because they correspond with and conscious, widespread
necessity but because they fit the economic convenience of the most powerful caste.
Moreover, many customs are so essentially local in origin they cannot be said to arise
from any widespread conviction.
Customs may in a greater or lesser degree, be rational in their inception, but it
often happens that once they have been inaugurated elements of non-rational character
enter in. Thus customs are apt to develop into traditions which are stronger than law
and remain unchallenged long after the reason for them has disappeared. It is a very
characteristic quality of custom that the mere fact of its practice and repetition invest it
with a sanctity which is often more compelling than reason, logic or utility. To find out
the reason it is necessary to deal with the part played by sheer imitation in social
customs. Imitation is one of the commonest and most influential elements in the life of
every individual and every society.
The most systematic attempt which has been made so far to examine the working
of the imitative faculty in man and society is Tarde’s Laws of imitation’. According to
Trade imitation is not mere curiosity of psychology, but one of the primary laws of
nature. Nature perpetuates itself by repetition, and the three fundamental forms of
repetition are rhythm or undulation generation and imitation. Applying them to the
evolution of human societies Trade sees imitation as one of the necessary inherent
principles by which society perpetuates itself. It is not mere casual phenomenon
recurring with unaccountable frequency; it is wholly indispensable quality in the
continuity of a society. Custom by its imitative influence is forever striving to maintain
the copies of the same model and thereby acts as a great stabilizing factor in the society.
Many of the influences which contribute to the force of imitation are extra logical and are
not concerned with reason but with feeling and instinct. So custom as a legal and social
phenomenon grows up by forces inherent in the society forces partly of reason and
necessity and partly of suggestion and imitation.
8.3 CLASSIFICATION OF CUSTOMS
Legal custom and conventional custom: A legal custom is one whose legal
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authority is absolute one which is itself and (proprio vigore) possess the force of law. The
second consists of custom which operates only indirectly and through the medium of
agreements whereby it is accepted and adopted in individual instances as conventional
law between the parties. The authority of conventional custom is conditional on its
acceptance and incorporation in agreements between the parties to be bound by it.
Legal custom can be divided into two types. Local custom and general custom.
Local custom prevails and has the force of law in a particular locality only whereas
 56
general custom has the force of law throughout the country. In the language of the
English law the term custom is more commonly confined to legal custom exclusively
while conventional custom is distinguished as usage.
8.4 APPLICATION OF CUSTOM
The scope of custom diminished as the formulation of the legal rules becomes
more explicit and as a more elaborate machinery set up for the making and
administration of law. Ancient customs, however are still integral part of law of the land
and the courts frequently have to deal with them.
The primary function of modern judicial analysis is to examine the nature and
reality of existing custom not to invent new customs or arbitrarily to abolish those which
are proved to exist in immemorial practice. Custom is self contained, self sufficient self
justified law and if a custom proved in a court by satisfactory evidence to exist and to be
observed the function of the court is merely to declare the custom operative law. In other
words the custom does not derive its inherent validity from the authority of the court
and then sanction of the court is declaratory rather than constitutive. But in order to
merit recognition the custom has to satisfy certain tests all of which tend in one
direction proof of the actual existence and operation of custom.
8.5 JUDICIAL TESTS OF VALID CUSTOM
In order that a custom or practice may be valid and operative as a source of law it
must conform to certain requirements laid down by law. The views of Blackst one on
this topic is accepted by all jurists and let us consider his views.
1. Antiquity: The custom must have existed from time immemorial. It must have
existed for such a long time that in the language of the law the memory of man runneth
not to the contrary. But antiquity is a relative term and if it were applied as a test
without qualification every custom would necessitate indefinite archaeological research.
So English Law set an arbitrary limit to legal memory fixing it at 1181 A.D. However, in
India there is no such time limit. What is required is that it must be of ancient origin.
The onus of antiquity is upon the person who sets upon the customs.
2. Continuance: Blackstone’s next rule is that of continuance. It must have been
practiced continuously, interruption with in legal memory defeats the customs. He
draws a necessary distinction between interruption of the right and the mere possession
of the thing over which the right is asserted. The discontinuance of the right even for a
day shall put the custom to an end but where there is mere disturbance of possession
and of a claim to enjoy the custom its validity is not affected.
3. Peaceable enjoyment: The next rule is that the custom must have been enjoyed
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peaceably and the right claimed must have been exercised neither by stealth nor by
revocable licence. It is sufficiently obvious that a custom which has only been rested
from the public by the strong hand is not a custom at all. As customs owe their origin to
common consent of their existence being immemorially disputed is a proof that such
consent is wanting. A secret legal custom clearly cannot have any real existence.
4. Opined Necessitatis: Custom must be supported by the opinion necessitates.
The public which is affected by the usage must regard it as obligatory not merely as
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facultative. It refers to the conviction on the part of the persons bound to regard this as
binding and not merely optional.
5. Certainity: The custom must be certain. This is purely a rule of evidence. The
court must be satisfied by clear proof that custom exists as a matter of fact or legal
presumption of fact. Alleged custom should not be indefinite or uncertain.
6. Consistency: Customs must be consistent with each other. One custom cannot
be set up in opposition to another custom.
7. Reasonableness: A custom must be reasonable. The authority or usage is not
absolute but conditional on a certain measure of conformity with justice and public
utility. It is not meant by this that the courts are at liberty to disregard a custom
whenever they are not satisfied as to its absolute rectitude and wisdom or whenever they
think that a better rule can be formulated in the exercise of their own judgement. The
true rule is that a custom in order to be deprived of legal efficiency must be so obviously
and seriously, repugnant to right and reason that to enforce it, as law would do more
mischief than that would result from the overturning of the expectations any
arrangements based on its presumed continuance and legal validity. So the rule can be
stated as follows: a custom will be admitted unless it is unreasonable.
8. Conformity with statute law: A custom must not be contrary to statute law i.e.
Act of legislatures, since no custom or prescription can take away the force of an Act of
legislature By no length of desuetude can statute become absolute and inoperative in law
and by no length of country usage can its provision be modified in the smallest
particular.
9. Should not be immoral: Custom should not be opposed to decency or morality.
10. Public policy: Custom should not opposed to public policy.
8.6 JUDICIAL PRECEDENT
In the broadest sense a precedent is any pattern upon which future conduct may
be based. It is a device which is in constant use and widely employed in law. The broad
meaning of the precedent in the sense of past decisions which are used as guides in the
moulding of future decisions is in no way peculiar to common law systems for it is found
in all the developed systems of law. The peculiarity of the law lies in the special mode in
which it employs this device with precedents in certain circumstances have the quality of
being laws in themselves and are also binding on the inferior courts which mean that
they have to be followed or distinguished. A convenient nomenclature for this common
law doctrine is stare decisis et non quieta movere.

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The doctrine of precedent is based upon the moral principle of justice. If people
are required to settle disputes by peaceful process rather than by resorting to self help
such process should not dispense with what they feels justice in a situation complained
of being unjust. Inorder to do this it is essential to foster confidence in its impartiality
and in the judges who administer it; and this has given rise to the fundamental principle
that like cases should be treated alike. Since judgements are pronounced on facts of
individual cases and like cases should be treated alike to reduce arbitrariness and
caprice it becomes necessary to use previous cases as paradigms which furnish broad
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type situations. Thus the principle of justice inevitably gives rise to precedents wherever
regular judicial process is established.
In the absence of a code in England the judges had to rely upon individual
decisions to achieve consistency and to systematize the law they devised the doctrine of
stare decisis to give direction to legal growth. However, before this doctrine could operate
with full force two other conditions had to be fulfilled viz a well established hierarchy of
courts and reliable system of law reports. Both these conditions were fulfilled in England
by the end of the 16th century when the doctrine was operating with full force.
8.7 CLASSIFICATION OF PRECEDENTS
Declaratory and original precedents: Declaratory precedents are those which
affirm an already existing rule without creating anything new, whereas an original
precedent is one which created for the first time a new rule or a principle.
Authoritative and persuasive. An authoritative precedent is one which judges
must follow whether they approve of it or not. A persuasive precedent is one which the
judges are under no obligation to follow, but such they will take into consideration and
to which they attach such weight as it seems to them to deserve.
Authoritative precedents are further divided into conditionally authoritative and
absolutely authoritative. Absolutely authoritative precedent is one which is absolutely
binding and so has to be followed by the court before which it is cited even though it is
erroneous. A conditionally authoritative precedent is one which is binding in all ordinary
cases but in one special case its authority may be lawfully denied. It may be overruled or
dissented from when it is not merely wrong but so clearly and seriously wrong that its
reversal is demanded in the interests of sound administration of justice. Otherwise it
must be followed even though the court which follows it, is persuaded that it is
erroneous or unreasonable.
Where a precedent is disregarded it may take two form. The court to which it is
cited may either overrule it or merely refuse to follow it. Overruling is an act of superior
jurisdiction. A precedent overruled is formally deprived of all authority. It becomes null
and void like a repealed statute and a new principle is authoritatively substituted for the
old. A refusal to follow a precedent on the other hand is an act of coordinate, not of
superior jurisdiction. Two courts of equal authority have no power to overrule each
other’s decisions. Where a precedent is not followed the result is not that the later
authority is substituted for the earlier but that the two stand side by side conflicting
with each other. The legal antinomy thus produced must be solved by the act of a higher
authority. In the meantime the state of law remains uncertain.
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8.8 OPERATIONS OF THE DOCTRINE OF PRECEDENT IN INDIA
This common law doctrine was introduced into India by the English judges when
they were appointed as judges of the High courts established at the presidency towns of
Madras, Bombay and Calcutta under the High Court Act of 1861. These English judges
who were barristers by their training borrowed the English legal techniques wherever
feasible to supplement the Indian law. Naturally they borrowed this doctrine of stare
decisis along with other doctrines. Ultimately this doctrine was granted official
recognition through Article 212 of the Government of India Act of 1935. Later Article
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141 of the Indian Constitution reiterated this view. The following is the overall position
with respect to operation of the doctrine of precedent in India.
2. The law declared by the Supreme Court shall be binding on all the court within
the territory of India.
3. The Supreme court itself is not bound by its own decisions.
4. The Supreme Court itself is not bound by the decision of Privy Council or Federal
Court.
5. Even a majority decision of the Supreme court can be reconsidered when a proper
occasion comes before the court.
6. In practice the unanimous opinions of the supreme court enjoys better authority
than majority decisions.
7. The High Court are bound by the decisions of the Supreme Court.
8. The High Court are still bound by decisions of the Federal Court or Privy Council
unless reversed or overruled by the Supreme court of India or by appropriate
legislature.
9. Decisions of High Court are binding all inferior courts within the state.
10. Since High Courts are of co-ordinate jurisdiction one High Court cannot bind
another High Court. Their decisions have persuasive force only.
8.9 CIRCUMSTANCES DESTROYING AND WEAKENING THE BINDING FORCE OF A
JUDICIAL PRECEDENTS
We have seen that a precedent that is overruled is deprived of all authority. We
shall consider the various ways in which a precedent may lose all or much of its binding
force.
1. Abrogated decisions :
a) A decision may lose its effectiveness if a statute in consistent with it is enacted
subsequently. This is legislative abrogation. Statutory abrogation of precedent may be
express or implied, Examples of legislative abrogation.
Dwarakdas Srinivas V. Sholapur Spinning and Weaving Co, State of west Bengal
Vs. Subodh Gopal
Both these cases have been abrogated by 24th amendment Act of the
Constitution.
b) A decision may also lose its effectiveness when it is reversed or overruled by a
higher court. Reversal occurs when the same decision is taken on appeal and is reversed
by the appellate court. Overruling occurs when the higher court declares in another case
that the precedent case was wrongly decided and so it must not be followed.

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Since overruling is an act of superior authority a case is not overruled merely
because there exists some later opposing precedent of the same court or a court of
coordinate jurisdiction. In such circumstances a court is free to follow either precedent
whereas when a case is overruled in the full sense of the word, the courts become bound
by the overruling case not merely to disregard the overruled case, but to decide the law
in the opposite way.
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2. Reversal on different ground
Very often it happens that a decision is reversed or affirmed on appeal on
different grounds. According to Jessell M.R. where judgement of the lower court is
affirmed or reversed on different grounds by the appellate court by giving the reasons
that it does not agree with the grounds given below it is then deprived of all authority. In
other words, the higher court relieved itself of the disagreeable necessity of overruling the
court below by finding another ground on which judgement of the lower court can be
supported.
The true view according to Salmond is that a decision either affirmed or reversed
on another point is deprived of any absolute binding force it might otherwise have had.
But it remains an authority which may be followed by a court that thinks the particular
point to have been rightly decided.
3. Ignorance of a statute
A precedent is not binding if it was rendered in ignorance of a statute or a rule
having the force of a statute. This rule was laid down by Lord Halsbury in the leading
House of Lords case London Street Tramways Vs. London Country Council. This rule
also applies even though the earlier court knew of the statute in question if it did not
refer to and had not present to its mind the precise terms of the statute. Similarly a
court may know of the existence of a statute and yet not appreciate its relevance to the
matter in hand.
Inconsistency with earlier decisions of higher courts: It is clear law that a
precedent loses its binding force if the court that decided it overlooked an inconsistent
decision of a higher court.
5. Inconsistency between earlier decisions of same rank: A court is not bound by
its own previous decisions if they are in conflict with each other. This might happen
when conflicting decisions may start from a time before the binding authority of the
precedent was acknowledged. Secondly the conflict may have come through inadvertence
as the earlier decision was omitted from being cited in the later. Owing to the vast
number of precedents and the heterogeneous way in which they are reported it is easy to
miss the relevant authority. Whenever a relevant prior decision is not cited before the
court or mentioned in the judgement it must be assumed that the court has acted in
ignorance of it. If the new decision is in conflict with the old it is given per incuriam and
is not binding on a later court.
Although the later court is not bound by the decision so given per incuriam, this
does not mean that it is bound by the first case Perhaps in strict logic the first case

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should be binding since it should have never been departed from and was only departed
from per incuriam. However this is not the rule. The rule is that where there are previous
inconsistent decisions of its own the court is free to follow either. It can follow the earlier
but equally if it thinks fit it can follow the later.
6. Precedents sub silentio or not fully argued: This is a more subtle attack upon
the authority of the precedent. When a particular point of law involved in a decision has
gone unnoticed and unargued by the counsel, the court may decide in favour of one
party, but if all the points have been put forth the decision might have gone in favour of
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the other party. In such conditions though the case has a specific result the decision is
not an authority on the point. This point is said to pass sub silentio. The particular
point of law involved in the decision is not perceived by the court or present to its mind.
A good illustration is Gerard Vs. Worth of Paris Ltd. In this case a discharged
employee of a company who had obtained damages against the company for wrongful
dismissal applied for a garnishee order on a bank account standing in the name of the
liquidator of the company. The only point argued was on the question of the priority of
the claimants debt and on this argument the court granted the decree. No consideration
was given to the question whether a garnishee order could properly be made on an
account standing in the name of the liquidator. When therefore this very point was
argued in a subsequent case before the appellate court, the court held it was not bound
by its previous decisions.
We must now turn to the wider question whether a precedent is deprived of its
authoritative force by the fact that it was not argued or not fully argued by the losing
party. One of the chief reasons for the doctrine of precedent is that a matter that has
once been fully argued and decided should not be allowed to be reopened. Where a
judgement is given without all the factors not being fully discussed or argued before the
court the decision cannot be regarded as possessing absolute authority.
8.10 RATIO DECEDENT (i) AND OBITER DICTA
What constitutes a decision in a case? What is that which is actually binding on
later court? In the course of the judgement the judge may remark or make observations
which are not precisely relevant to the issue before him. He may illustrate his general
reasoning by reference to hypothetical cases. Here the issue is not the one which arises
between the parties. Full argument will not be possible and it will be unwise to accord to
the actual decision. These observations by way of obiter dicta are without any binding
authority.
Ratio decidendi as opposed to obiter dicta is the rule acted upon by the courts in
the case. It simply means reasons for the decision of the case. It is binding principle of
the case. It is the role of law applied by and acted by the court or the rule which the
court regards as governing the case.
Common law requires that courts should explain and justify their decisions. So
normally we can find the rule which is applied stated in the judgement of the court.
Later courts however, are not content to be completely fettered by the predecessors.
When a court first states a rule it cannot have before it all possible situations to which
the rule as stated may cover and there may be situations to which it would be quite
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undesirable that it should apply. If such a situation should come before a later court
that court might well take the view that the original rule has been too widely stated and
must be restricted in application. Or again the original court where stating the rule is
neither concerned nor obliged to formulate all possible exceptions to it. Such exceptions
must be dealt with as and when they arise by later courts. This freedom on the part of
the later court to distinguish previous decisions makes the operation of precedent more
flexible and it has given rise to the view that ratio decidendi of a case is in fact what later
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cases consider it to be because it is always possible that a later court may hold that the
rule stated and acted on by the judge in a case is wider than necessary for the decision.
How to locate the Ratio Decidendi?
While it is fairly simple to describe what is meant by the term ratio decidendi, it is
far less easy to explain how to determine the ratio of any particular case. Though we
know it is the rule acted upon by the judge we cannot always tell for certain what that
rule was. In others we are furnished with lengthy judgements in which may be
embedded several different propositions all of which support the decision. Another
difficulty is that any general rule of law must relate to a whole class of facts similar to
those involved in the case itself, but what this class is will depend on how widely are
abstract the facts in question.
Various methods of determining the ratio have been advanced. Wambaugh’s
Reversal Test: The reversal test of Prof. Wambaugh suggested that we should take the
proposition of law put forward by the judge reverse it or negate it and then see if its
reversal or negation would have altered the actual decision. If so, then the proposition is
the ratio or part of it if the reversal would have made no difference it is not. In other
words the ratio is a general rule without which the case would have been decided
otherwise.
The Reversal test will not help us in cases where no proposition of law is given
and where all that is contained in the reports is a statement of the facts together with
the order that is made. Nor it is very helpful where a court gives several reasons for its
decision. In such cases we could reverse each decision separately and yet the decision
would remain unaltered since it could rest on other grounds. Quite often where a case is
argued upon several grounds the judge will decide it on one of these grounds, and
merely indicate his views on the remaining points so that his first proposition of law
alone will constitute the ratio.
Dr. Goodhart’s Material Facts Test: The better way to approach the problem is to
elucidate the ratio of the case from the facts themselves rather than the principle
enunciated by the court. The ratio can be determined by ascertaining the facts treated as
material by the judge together with his decision on these facts. This test directs us away
from what judges say towards what in fact they do and it is indeed the only way of
deriving a ratio in cases where no judgement is given. Where a judgement is given it is
from this we must discover which facts the judge deemed material and which is not. The
material facts test requires us first to determine the facts of the case as seen by the
judge and then to discover which of these facts he has found to be material for his

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judgement. The principle of the case is found in the conclusion, reached by the judge on
the basis of material facts to the exclusion of immaterial ones. Having established the
principle of the case and excluded all dicta the final step is to determine whether or not
it is a binding precedent for the succeeding case.
The material facts test is valuable in stressing that proposition of law are only
authoritative in so far as they are relevant to the facts in issue in a case; a judicial
statement of a law therefore must be read in the light of the facts of the case.
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The Rule of the Judges in the Judicial Process whether they make law or declare
existing law?
The process of judicial decision may be regarded as either deductive or inductive
and the function of the judge will differ widely according as one of the other of the two
views is adopted.
The first theory associated principally with the codified systems assumes that a
legal rule applicable to any particular case is fixed and certain from the beginning and
all that is required of the judge is to apply this rule as justice according to law demands
without reference to his own personal view. His decision is deducted directly from
general to particular from the general rule to the particular circumstances before him.
The second theory characteristic of English law starts with the same primary
object of finding the general rule applicable to the particular case; but its method is
wholly different. It does not conceive the rule as being applicable directly by simple
deduction. It works forward from the particular to the general. The judge has to reason
inductively and in that process he said to be bound by decisions of tribunals, higher
than his own.
The declaratory Theory or the Mechanical Jurisprudence. The theory was
propounded as early in 1713 by Sir Mathew Hale who said that the decisions of courts of
justice do not make law properly so called for that only the king and parliament can do.
Blackstone formally enunciated this theory “The judges”, Blackstone said are the
depositories of law the living oracles, who must decide in all cases of doubt and who are
bound by an oath to decide according to the law of the land.” This theory assumes that
laws already in existence and a court while deciding a case merely discovers it and
declares it.
The declaratory theory is the product of the following factors.
a) It is based on the false assumptions that there must be some rule which is always
waiting to be discovered and to be applied.
b) This doctrine is founded on assumption of Natural law of which common law is a
part.
c) It is an offshoot of the doctrine of separation of powers which maintains that the
legislative, judicial and executive organs of government should be kept separate,
each confined to its own allotted field. This calls upon the judiciary to exercise
judicial self-restraint because making law is the proper function of the courts .
d) Since judicial decisions pronounce upon the validity or legality of the issue after
the conduct has taken place it is not a sound principle of justice to make law with
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retrospective effect.
e) The syllogistic form of reasoning which implies that premises from which
conclusion is reached is are lady in existence.
The declaratory theory of Blackstone denied any creative function on the part of
the judges. All that the judge has to do when a dispute comes before him is to find out
the relevant rule applicable to the facts of the dispute and the decision will be
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automatically supplied by the rule. The judge performed merely a mechanical function.
This is expressed in the mathematical formula Rule + Fact = Decision.
This view is opposed by jurists like Pollock and Dicey. According to Pollock no
intelligent lawyer would pretend that decisions of courts do not make new law. Judge
made law is real law. According to Dicey nine tenths of the English law of contracts and
almost all the law of torts are made by the judges in England. So Blackstonian theory
is not acceptable.
Diametrically opposed to the Blackstonian theory is the school which is known as
the Free Law Finding School. The exponents of this school which is of continental in
origin maintain judges alone are real law makers and they should be given absolute
power to make law they pleased.
According to Ehrlich there should be free law finding in all cases except in cases
where law is clear and need not be found. Stampe demands a judicial right to alter the
law where law has produced what he calls a general calamity. Herman Isay maintains
that finding of law is an intuitive process directed by certain sentiments and prejudices
while logical argument is substituted as after thought. George Cohen rejecting traditional
jurisprudence of norms and concepts demands that law should be found in the
individual case without any ties of norms and rules. The view of this Free laws finds
expression in the Article I of the Swiss Civil Code of 1907.
“The statute governs all matters within the letter or the spirit of any of its
mandates. In default of an applicable statute the judge is to pronounce judgement
according to customary law and is default according to the rules which he would
establish if he were to assume the post of the legislator.
Some what from a different stand point the American Realists supported the view
of this school. The American realist movement maintained that the judges had a great
deal of freedom to make law. This was possible when the judges had to assess the facts
of the dispute and accommodate them under the relevant rules. Moreover the concept of
ratio decidendi itself is a fluid concept with no fixed means of ascertaining it. Through
these leeways of choice the judges give free play for their emotions, sentiments,
prejudices, etc. which ultimately influenced the decision. In short, the judges decided
first and reasoned later. In the words of Gray, Judges alone are the makers of law since
whoever has absolute authority not only to interpret the law but to say what the law is
truly the law giver.
We have seen the two conflicting theories on the role of the judges in the judicial
process, one contending that judges do not and should not make law (supported by
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Mathew Hale Blackstone. Austin and Bentham) and the other contending that judges
alone are makers of all law (supported by the Free Finding movement and the American
Realism). The truth appears to lie somewhere in between.
There are numerous instances where a judge may have to lay down a rule for the
first time without any assistance from any statute or a previous precedent. The Judge in
such circumstance may not have any guidance as to how to decide the dispute. He has
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to invent a new rule to meet the new situation. Under such circumstances he is
definitely making law bull only within the limits, well defined.
Compare now the function of the judge with that of the legislature in making law.
The legislature unlike the court is not confined to any particular dispute like the
judiciary. It is not confined to the past or the present but it can also deal with the future
situations. The legislature can manufacture entirely a new material where as the court is
confined to the facts of the dispute before it. Thus judges make law only in the derivative
or secondary sense. It is not an original act of creation. Every act of interpretation
shapes something new in a secondary sense. The creative power of the courts is limited
by existing material at their command. They find the material and shape whereas the
legislature as we saw already can manufacture entirely new material.
Conclusion: Judges to make law A scrutiny of the judicial process of the many
countries shows that the Blackstonian theory is unacceptable. The courts cannot
manufacture entirely new material, but it can fashion or shape the existing material
manufactured by the legislature. As Cardoza pointed out judges do not enjoy
untrammeled power of laying down abstract principles of law but they are influenced by
their knowledge which is gained by experience, study and reflection in other words from
the reading of the life itself. Perhaps the correct position was put forward by Justice
Holmes according to whom the judges legislate only interstitially i.e., within the gaps of
the legal system. He can intervene only to supplement the formal authorities and
intervening that sphere his discretion is limited.
Judges have enormous freedom in handling the precedents. The difficulty of
locating the ratio decidendi of a case enables the judges to make law if necessary.
8.11 DOCTRINE OF PROSPECTIVE RULING
Judicial precedents are retrospective in operation. In other words courts pronounce
upon the validity of acts or events or transactions after they have taken place. This is in
one sense opposed to principles of natural justice which requires that law should be
made known before it can be applied to particular type of situations or transactions. To
get over this difficulty the American courts have devised a new technique known as the
doctrine of prospective overruling i.e. the overruling of a well established precedent
limited to future situations and excluding application to situations which have arisen
before the decisions and are therefore presumed to be governed by reliance on the
overruled principle. This principle was first propounded by Justice Cardozo in Great
Northern Railway Vs. Sunburst. Oil. and Refining Co. Later this doctrine was reiterated
by the U.S. Supreme court in Linkletter Vs. Walker. This doctrine was borrowed by the

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Indian Supreme Court in the famous case Golaknath Vs. State of Punjab A.I.R.1965 S.C.
c) Legislation
The term legislation according to Salmond has three different meanings. First it is
used to refer to all methods of law making. To legislate is to make law in any fashion. In
this sense any act done with the effect of adding to or altering the law is an act of
legislative authority. As so used legislation includes all the sources of law. Thus when
judges establish a new principle by means of a judicial decision they may said to exercise
legislative and not merely judicial power. Second, in the strict sense legislation is the
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laying down of legal rule by a sovereign or subordinate legislator. Thirdly legislation
includes every expression of the will of the legislature whether directed to the making of
rules or not. In the sense every Act of Parliament is instance of legislation irrespective of
its purpose and effect.
Legislation is of two types. It is either supreme or subordinate. Supreme
legislation is that which proceeds from the supreme or sovereign power in the state and
which therefore is incapable of being repealed annulled or controlled by any other
legislative authority. Subordinate legislation is that which proceeds from any authority
other than the sovereign power and is, therefore, dependent for its continued existence
and validity on some superior or supreme authority. In other words, the sovereign
legislator is that which has no rival in the state.
8.12 SUBORDINATE LEGISLATION
Enactments of legislative bodies inferior to the sovereign constitutes subordinate
legislation. Such legislation is subordinate in that it can be repealed by and must give
way to sovereign legislation. In many cases, it is of derivative in nature, the power to
legislate having been delegated by the sovereign to the subordinate.
The chief forms of subordinate legislation are five in number
1) Colonial: The power of self government entrusted to the colonies and other
dependencies of the ruling state are subject to the control of the legislature of the ruling
state which can repeal, annual or modify and colonial enactment.
2) Executive: The essential function of the executive is to conduct the
administrative department of the stage, but it combines with this certain subordinate
legislative powers which have been expressly delegated to it by the legislatures. This has
given rise under modern conditions to what is called as the Delegated Legislation.
Delegated legislation depends for its validity upon the parent statute.
3) Judicial: Similar to delegated legislation, certain delegated legislative powers
are possessed by the Judiciary. The superior courts have the power of making rules for
the regulation of their own procedure.
4) Municipal: Municipal authorities are entrusted by the law with limited and
subordinate powers of establishing social law for the districts under the control. The
enactments so authorized are termed as by laws and this form of legislation may be
distinguished as municipal.
5) Autonomous: The great bulk of enacted law is promulgated by the state But in
exceptional cases, it has been found possible and expedient to entrust this power to the
private hands. The law gives to certain groups of private individuals limited legislative
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authority touching matters concerning them selves. A railway company is empowered to
make by laws for the regulation of its undertaking. A University may make statutes
binding upon its members. A registered company may after those articles of association
by which its constitution and management are determined. Legislation thus effected by
private persons and the law so created may be distinguished as autonomic.
Merits of Legislation over Judicial precedes
So great is the superiority of legislation over all other methods of legal evolution,
that the tendency of advancing civilization is to acknowledge its exclusive claim and to
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discard the other instrument as relics of the infancy of law. In considering the
advantages of legislation it will be convenient to contract it specially with its most
formidable rival namely precedent.
1) The first virtue of legislation lies in its abrogative power. It is not merely a
source of new law but is equally effective in abolishing that which already exists. But
precedent possess merely constitutive efficacy; it is capable of producing very good law
better in some respects than that which we obtain by way of legislation but its defect is
irreversible. Since legislation possesses constitutive and abrogative efficacy it is an
indispensable instrument of law reform.
2) The second aspect in which legislation is superior to precedent is that it allows
an advantageous decision of labour which results in increased efficiency. The legislature
becomes differentiated from the judiciary, the duty of the former being to make law while
that of the latter is to interpret and apply it. A legal system will be best administered
when those who administer it have this as their sole function. Precedent on the other
hand unites in same hand the business of making the law and that of enforcing it.
3) The third advantage of statute law is that the formal declaration of it before
the commission of the acts to which act applies is condition precedent to its application
in courts of justice. Case law on the contrary is created and declared in the very act of
applying and enforcing it. Legislation satisfies the requirement of natural justice that
laws shall be known before they are enforced. But case law applies retrospectively being
created and applied to facts which are prior in date to the law itself. However this
difficulty can be remedied by resorting to what is called as the doctrine of “Prospective
Overruling”.
4) legislation can be by way of anticipation make rules for cases that have not yet
arisen, whereas precedent must wait till actual concrete instance comes before the
courts for decision. Legal development through judicial precedent depends upon the
accidental course of litigation. A point of law must remain unsettled until by chance an
appropriate case arises. Legislation can fill up a vacancy or settle a doubt in the legal
system as soon as the existence of this defect is brought to the notice of the legislature.
Precedent, therefore, is incomplete, uncertain and unsystematic.
5) Legislation is greatly superior to case law in point of form. Legislation assumes
the form of abstract propositions while precedent is merged in the concrete details of the
actual cases. Statute law is brief, clear, easily accessible and knowable while case law is
buried from sight and knowledge in the mass of reports.
These are the advantages of legislation over judicial precedent. Now let us see the
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merits and defects of judge made law i.e. judicial precedent.
Merit: 1) Judge made law is the outcome of the practical need. Therefore, it is
more flexible than legislation or custom. It is in living contact with reason and justice of
the matter.
2) Judicial precedent is concrete because it is formulated to solve an actual
problem. So it avoids broad generalization.
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3) Case law is the best preparation for statute law, Mercantile law is nothing but
codified case law.
Defects 1) Possibility of overlooking essential decisions.
2) Unlike legislatures which are answerable to the people the courts are not
accountable to the people.
3) Courts are slow to respond to the social changes.
8.13 PRINCIPLES OF INTERPRETATION OF STATUTE
Interpretation is the process by which the courts seek to ascertain the meaning of
the words used by the legislature. Every statute is made up of two parts: Litera legis the
letter of law and Sentenia legis the intention of the legislature. The courts in applying a
statute do not have absolute freedom to interpret it. They are guided by the intention of
the legislature because the essence of law lies in the spirit and not in the letter. Normally
the courts will take the litera legis as conclusive proof of the sentential legis and will not
go behind it.
Interpretation is of two kinds; grammatical or logical and Literal or functional.
Grammatical Interpretation: Also known as the literal interpretation, plain
meaning rule it. According to this rule it the words used are plain and unambiguous we
are bound to construe them in the ordinary sense even though it leads to manifest
injustice or absurdity. This plain meaning doctrine signifies that statutory language has
a clear and obvious meaning and it is the duty of the court to give effect to that meaning
even though it leads to a conclusion which cannot be grounded on the policy of the
statute. Words and phrases must be construed according to ordinary rules of grammar
and commission must not be inferred. Every word in a statute must be given a meaning.
Legal or functional interpretation departs from the letter of law and seeks elsewhere
more satisfactory evidence of the true intension of the legislature.
The Golden Rule: “We must adhere to the ordinary meaning of the words used
and to the grammatical construction, unless that is at variance with the intention of the
legislature to be collected from the statute itself or leads to manifest absurdity or
injustice in which case the language can be modified or varied in order to avoid such
inconvenience but no further.”
- Parke, J. in Beeke Vs. Smith
8.14 THE MISCHIEF RULE OR THE RULE IN THE HYDON’S CASE
A statute may have no meaning at all or different parts of the statute are so
defective or repugnant no clue is available as to the intention of the legislature. under

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such circumstance the courts can apply this rule. According to that judge must ask the
following questions.
a. What was the state of law before the making of the Act?
b. What was the mischief and defect for which law did not provide?
c. What remedy the Parliament has devised to cure the discase of the common
wealth?
d. True reason for the remedy.
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The function of the judge is to make such interpretation so as to suppress the
mischief and advance the remedy.
Beneficial construction: A statute which purports to confer a benefit on individual
or a class of persons by relieving them of onerous obligation under contracts entered into
by them or which tend to protect persons against oppressive acts from individual with
whom they stand in certain relations is called beneficial legislation. In interpreting such
a statute the principle established is that there is room for taking a narrow view but that
the court is entitled to be generous towards persons on whom the benefit has been
conferred.
8.15 SUBSIDIARY RULE OF INTERPRETATION
a) Nosciture a Socis: Meaning of the words must be judged by the company it
keeps. When two or more words which are susceptible of analogues meaning are coupled
together they are supposed to be used in their cognate sense.
b) Ejusden Gederis Rule: When general words follow more specific, this rule
restricts the meaning of the general words to things or matters of same kind or genus.
c) Expressio unius et exclusio alterins: Mention of one or more things of a
particular class may be regarded as silently excluding all other members of the same
class.
d) Expressum fncit cessare tacitum: What is expressed makes what is silent to
cease and puts an end to implication.
e) Utres magis valeat Quam pereat: If the choice is between two interpretations
one narrow which fails to achieve the object of the legislature and the other broad
interpretation. Which achieves the legislature we should prefer the broader
interpretation since the presumption is that the legislature would have legislated only to
bring about an effective result.
f) Casus Omissi: Omission is a statute should not be inferred.
8.16 SUGGESTED QUESTIONS
1. What are the requisites of a valid custom.

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LESSON-9

RIGHTS AND DUTIES

STRUCTURE
9.1 INTRODUCTION
9.2 DISTINCTION BETWEEN RIGHT PRIVILAGE AND POWER
9.3 CLASSIFICATION OF LEGAL RIGHTS
9.4 SUGGESTED QUESTIONS
9.1 INTRODUCTION
The behaviour of one person is the substrata upon which the right of another is
founded. Many jurists have tried to define the word right from their individual view
points. Let us consider some of them.
1. Some jurists like the exponents of the natural law school maintain that
morality generates right. This school views that rights have a real metaphysical and
moral status. They are supra legal.
2. Another view of the right is based on an interest, its principal supporters being
Jhering and Salmond. Jhering defined rights as legally protected interests. Interests are
not the creations of the state for they exist in the very life of the community and the state
merely selects the interests which it will protect. This view of Jhering is supported by
Salmond but the latter attaches enforceability to it as on essential element of right.
3. According to Vinogradoff right is an attitude of claim or demand based upon
historical facts, i.e. demands or claims automatically give rise to rights it maintained for
a sufficient duration of time.
4. According to Lundstedt a right is simply a favourable position enjoyed by a
person in consequences of functioning of the legal machinery.
5. Holland and Gray explain rights in terms of the ability to enforce the correlative
duty. Holland defined a right as a capacity residing in a person to control the action of
others, Gray maintains that right is not the interest itself it is the means by which the
enjoyment of the interest is secured.
According to Rosco pound the word right as a noun had been used in five
different senses.
1. An interest which a person holds which must be recognized and secured.
2. Recognized claim to acts or forbearances by others to make the interest

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effective.
3. A capacity to create, divert or alter duties;
4. To designate certain conditions of general or special non-interference with
natural faculties of action.
5. As an adjective to mean that which accords with justice or that which
recognizes and gives effect to moral rights
The most outstanding achievement to Analytical jurisprudence was the resolution
of concepts Rights and Duty into a number of components. Simplification of legal
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relation, required their disintegration into simpler forms and working on the concept of
right analytical jurists were at pains to explain that the word right denoted not a single
idea as it was widely believed but a bundle of ideas. The indiscriminate use of such
chameleon hued words to different technical relations has often placed have not only
with logical consistency but also with substantial justice.
Austin suggested the setting of liberties from the term right by pointing out that a
liberty was the absence of legal restraint which facilitated individual’s natural freedom of
action, whereas a right was a faulty residing in a determinate person by virtue of a given
rule of law, which availed against some other persons and answered to a duty resting on
that person. It was in this sense of liberty the term right has been used in the medieval
charters and by the social contractarians like Hobbes and Locke.
Windsheld, John and Bierling’s distinguished claim liberty and powers. Salmond
adopting Bierling’s distinction introduced two other ideas disability (absence of power)
and liability (risk of exercise of power). Hohfeld employing Hegel’s dialection and basing
himself primarily on Salmond constructed an elaborate scheme of opposites and
correlatives introducing two new concepts, immunity and no right. For the sake of
convenience instead of rights and duties we will substitute the words legal advantages
and legal burdens. Kocourek prefers to use the terms dominant and servient
relationships.
When one of these legal advantages or legal burdens concerning a particular
subject matter and arising from a particular transaction is observed to there in a
particular person its correlative may be observed to inhere in some other persons. The
particular relation in short comprise both the correlatives and is incomplete without
either.
Hohfeldian scheme of jural relations can be expressed in the following tabular
form.
Right Contradictory Privilege
Claim Liberty
Correlative

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Duty No Right
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Power Immunity
Correlative

Liability Disability

The vertical arrows connect jural correlatives and may be read either way as the
Right/Powe r
presence of in one person ‘a’ implies the presence of its correlative
Privilege Immunity
[Duty / Liability]
in another person ‘s’ implies the presence of its correlative in
[ No Right / Disability]
another person ‘y’.
The diagonol arrows connect jural opposites or negation and may be read either
[Duty / Liability]
way as the presence of in one person ‘x’ implies the absence of it
[ No Right / Disability]
[Privilege / Immunity]
opposite in himself.
[ Right / Power]
The horizontal arrows connect jural contradictories and maybe read.
Privilege immunity in one person ‘x’ implies the absence of its contradictory Right
power in another person ‘y’.
With these formulate in mind the scheme may now he considered in detail.
1. Right: Characteristic of a legal right. According to Salmond, every legal right has
the following five characteristics.
a. It is vested in a person who is the owner of the right the person entitled or the
person of inherence.

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b. It avails against a person upon whom lies the correlative duty. He may be
distinguished as the person bound subject of duty or the person of incidence.
c. It obliges the person bound to an act or omission in favour of the person
entitled. This may be termed as the content of the right.
d. The act of omission relate to something which may be termed as the object of
the right.
e. Every legal right has a title, i.e. certain facts or events by reason of which the
right has become vested in the owner.
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The term claim was preferred by Hohfeld instead of the term right. In the strict
sence of the term, the word right is a sign that some other person is obliged to behave in
a certain way. So the clue to right lies in duty. Sometimes the party entitled to the
benefit of duty can bring action for damages sometimes cannot. Every right implies the
existence of a correlative duty but the reverse is not always true. So non-correlative
duties do not fit into this scheme. The correlation of right duty is not prefect.
2) Duty: Legal duty is a burden or a legal disadvantage, that which is owed or due
to another and which should be satisfied. They are prescriptive formulations of conduct
which by law should be done or observed. State of duties and imposition of sanctions for
failure is how law regulates conduct. Since content of legal duties varies with legal
systems it is not possible to catalogue exhaustively all the duties. The existence of duty
in a particular case is very important since it may transform conduct which is innocent
into a culpable one. The attitude of law whether of approval or disapproval is based on
the purpose to be achieved which in term may be governed by social values, morality,
justice etc. A duty prescribes a person’s behaviour primarily for some purpose other than
his own interest. It is the regulation of his conduct in the interest of others.
Enforceability is another idea associated with duty. It may mean two things.
a. Either compeling observance of the pattern of conduct enjoined by duty.
b. Indirect method of inflicting a penalty for failure to observe it.
Duty is legal whenever a sanction is attached to its breach. The corollary of this
view is that presence of sanction can be made the test of the existence of legal duty. But
the idea of duty and sanction must be kept separate. Normally a duty is supported by
sanction i.e. if law imposes a duty it will enforce it. But in an ideal society there will not
be any necessity for sanctions. The test to find out whether a duty exists or not is to
find out whether the court recognizes the duty and not whether it will enforce it. In
certain cases, the beneficiary of the duty may not be identifiable till the duty is breached.
Whether Rights and Duties are always correlatives?
The infringement of right is always a wrong. It is also the breach of a duty. Thus
we arrive at the fact that rights and duties are correlatives. However, there are two views
about this questions.
According to Salmond, they are necessarily correlatives and one cannot be
thought of without the other i.e., there cannot be a right without a corresponding duty
on some other person and there cannot be a duty without a corresponding right upon
some other person, just as there can be no husband without a wife or a father without

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a child. Every duty must be a duty, towards some person or persons upon whom a
correlative right is vested. And conversely every right must be a right against some
person or persons upon whom a correlative duty is imposed. Every right or duty involves
a Viculum Juris or a bond of legal obligation by which two or more persons are bound
together. Thus there can be no or more persons are bound together. Thus there can be
no duty unless there is someone to whom it is due and there can be no right unless
there is some one from whom it is claimed.
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The opposite school led by Austin distinguishes between relatives and absolute
duties. Relative duties are those which have rights corresponding to them while
absolute duties being those which had none. Austin catalogued absolute duties at
follows.
a. Duties towards the self.
b. Duties towards indeterminate persons
c. Duties towards God and Lower animals
d. Duties towards the Sovereign
Liberty Privilege: It is the freedom on the part of a person as against another to do
a given act or a legal freedom not to do a certain act. Liberties or privileges are benefits
which a person enjoys due to the absence of legal restraints. It is the residue left by
encroaching duties. So privilege begins where duty ends. It is the sphere of activity
within which law is content to leave one alone. It is something which law tolerates but
does not protect by imposing a corresponding duty upon-others. This sphere of
unrestrained activity recognized and allowed by law constitutes a special class which is
distinguishable from claims. Rights of the one class are things which others should do
for me whereas liberties or privileges are what I can do for myself.
4) No Right: The term no right is a manufactured word indicating the absence of
right against another in some particular respect. It is a negative concept invented by
Hohfeld. If no right is simply that which is not a right then the class of no rights
according to Kocourek must include elephants, angels and stars.
5) Power: Power is the ability conferred upon a person by law to alter by his own
will directed to that end, the rights, duties, liabilities or other legal relations, either of
himself or of other persons. The change in a legal relation, may be the consequence of a
fact or group of facts not under human control of the consequence of a fact or group of
which is subject to human control. Salmond divides power into public powers and
private powers. Public powers are those which are vested in a person as an agent or
instrument of the state whether legislative, executive or judicial. Public power coupled
with duty is ministerial power. Public power coupled with privilege is discretionary
power. Private powers are those which are vested in individuals to be exercised for their
own purposes and not as agents of the state. Power in the sense of ability to determine
the legal relations of others is authority. Power in the sense of ability to determine the
legal relations of one’s own is capacity. Bierlign distinguished power as follows.
a. those conferred by legal transactions
b. those directly conferred by law.
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9.2 DISTINCTION BETWEEN RIGHT, PRIVILAGE AND POWER
Right is what others should do for you, privilege is what you can do for yourself,
power is what you can do to others, right requires some other persons to conform to a
pattern of conduct whereas power is the ability to produce a certain result. RIght
restricts the liberty of others, Privilege indicates the absence of legal restraints. In the
case of power, law assists me in making my will effectives.
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6) Liability – The correlative of power liability. It implies the presence of power
vested in someone else as against the person with liability. It is the position of one whose
legal rights may be altered by the exercise of power. Hohfeld generalizes the term liability
so as to cover a choice of being benefited as well as suffering a loss. In this sense the
word contrary a meaning quite contrary to usage.
7) Immunity – Is one freedom on the part of the person against a given legal
relation altered by a given act on omission on the part of another person Immunity like
liberty is not protected by a corresponding duty not to violate it. It is merely exception
from the exercise of power vested in another person.
8) Disability – The absence of power could have been simply styled as no power
similar to no right. But Hohfeld prefers the term disability in cheating a legal situation
where no power exists. Pound suggested the term inability instead of the term disability.
9.3 CLASSIFICATION OF LEGAL RIGHTS
Right and their correlatives duties maybe distinguished in various ways.
1) Perfect and Imperfect Rights – A perfect right is one which corresponds to a
perfect duty. A perfect duty is one which is not merely recognized by law but enforced.
A duty is enforceable when an action or other legal proceedings will be for the breach of
it and when judgement will be executed against the defendant through the physical force
on the state. In all fully developed legal systems, however there are rights and duties
though recognized by law yet fall short of this typical and perfect form i.e. they may not
be enforceable. Examples of such imperfect legal rights are certain claims barred by
lapse of time, claims unenforceable due to lack of requisite proof or claims against
foreign states etc. In all those cases, the duties and the correlative rights are imperfect
No action will lie for their maintenance. But nevertheless they are recognized as rights
and duties by law. The statute of limitations does not provide that after a certain time a
debt shall become extinct but merely that no action shall be brought for its recovery.
Laps of time does not destroy the right but merely reduces it from the rank of one which
is perfect to that of one which is imperfect. It remains valid for all purposes save that of
enforcement. It may be a good ground of defence and may posses the capacity of
becoming a perfect right. The customary union between the right and the right of action
has been severed but the right survives.
The rights of the subjects against the state are sometimes classified as imperfect
rights. Even where a system of law allows the subject to sue the state and obtain
judgement recognizing his rights the judgment cannot be enforced. Because of
unenforceability these rights are sometimes termed as imperfect. The ordinary imperfect
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right is unenforceable because some rule of law declares it to be so. A person’s right
against the state are unenforceable not in this legal sense but in the sense that the
strength of the law is none other than the strength of the state and cannot be turned or
used against the state whose strength it is.
2) Positive and Negative Rights: A positive right corresponds to a positive duty
and a negative right to a negative duty. A positive duty is one in consequence of which
the person bound by it is compelled to perform some positive act in favour of the person
in whom the right resides. A negative right corresponds to a negative duty and is a right
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that the person bound shall refrain from some act which would operate to the prejudice
of the person entitled. Positive right is infringed by omission to the something whereas a
negative right is infringed by commission of some act. The former is a right to be
positively benefited, the latter is merely a right not to be harmed. Ordinarily the law is
content to direct persons to refrain from performing wrongful acts rather than to direct
them to acts perform worthy of praise or reward. Therefore, the majority of rights
conferred and duties imposed by law are negative. Rights arising out of contract,
however, are frequently positive.
3) Right in rem and Rights in personam : A right in rems some times called a real
right corresponds to a duty imposed upon persons in general a right in personam
sometimes called a personal right corresponds to a duty imposed upon determinate
individuals. A right in rem is available against the world at large whereas a right in
personam is available only against particular persons. A right in rem is an interest
protected against the world at large, a right in personam is an interest protected solely
against determinate individuals.
Almost all rights in rem are negative whereas most rights in personam normally
are positive. Since a right in rem is available against all, other persons can be in general
nothing more than a right to be left alone by others, a right to their passive non-
interference. No person is in general given a legal right to the active assistance of all the
world. On the other hand, almost all personal rights are positive.
4) Proprietary and personal rights: The aggregate of a person’s proprietary rights
constitutes his estate. The sum total of a person’s personal rights constitutes his status
or personal condition as opposed to his estate. The difference between these two rights
lies in the fact that proprietary rights are valuable while personal rights are not valuable.
The former are the elements of a man’s wealth, the latter are merely elements in his well
being.
Although the term estate includes only rights the term status includes not only
rights but also duties, rights, subjections and disabilities. Status is used by some writers
to signify a person’s personal legal condition so far only as it is imposed upon him by the
law without his consent or opposed to the condition which he has acquired for himself
by agreement.
5) Rights in re propria and rights in re aliena: The Roman jurists divided rights into
two kinds, jurs in re propri and jura in re aliena. The latter can be conveniently termed
as encumbrances. A right in re aliena or an encumbrance in one which limits or
derogates from same more general right belonging to some other person in respect of the
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same subject matter. All others are jura in re proprla. It frequently happens that a right
vested in one person becomes subject or subordinate to an adverse right vested in
another. It no longer possesses it full scope part of it being cut off to make room for the
limiting and superior right which derogates from it. Thus, the right of a landowner may
be subject to and limited by that of a tenant to the temporary use of the property. A right
subject to an encumbrance may be designated as servient while the encumbrance which
derogates from it may be contrasted as dominant.
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6) Principal and accessory rights- The relation between principal and accessory
right is reverse of the relation between right in repropria and right re aliena. Every right
is capable of being affected to some extent by the existence of their rights. Thus, the
influence exercised by one upon the other is either adverse or beneficial. It is adverse
when one right is limited or qualified by another right vested in a different owner. It is
beneficial on the other hand when one right has added to it a supplementary right vested
in the same owner. The right so augmented may be termed as principal while the one so
appurtenant to it is the necessary right.
7) Primary and sanctioning rights: - A sanctioning right is one which arises out of
the violation of another right. All other rights are primary. They are right which have
some other sources than wrongs. Thus a person’s right not to be assaulted is a primary
right, whereas his right to claim damages for assault is a sanctioning right. It should be
noted that a primary right can be either a right in rem or a right in personam. But the
sanctioning, right which arises from the violation of a primary right will in all cases be a
right in personam.
8) Legal and equitable rights – The dualism between common law and equity in
England gave rise to two classes of right those recognized by common law called as legal
rights and those recognized by the courts of Equity called as equitable rights. This
dualism was brought to an end by the passing of the Judicature Act of 1873. However,
the distinction is of some importance since the methods of their creation and disposition
are different.
9) Vested and contingent rights – A right vests when all the facts have occurred
which must be law should occur in order for the person in question to have the right. A
right is contingent when some but not all of the vestitive facts have occurred.
9.4 SUGGESTED QUESTIONS
1. Distinguish between Right, Privilege and Power?
2. Discuss the various classification of legal rights?

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LESSON-10

PERSONS

STRUCTURE
10.1 INTRODUCTION
10.2 LEGAL STATUS OF LOWER ANIMALS
10.3 CORPORATION
10.4 THEORIES OF CORPORATE PERSONALITY
10.4.1 Fiction theory
10.4.2 Concession theory
10.4.3 Bracket or symbolist theory
10.4.4 Purpose theory
10.4.5 Honfield’s theory
10.4. 6 Kelsens theory
10.4.7 Realist theory
10.4.8 Organism theory
10.5 ACT AND LIABILITIES OF CORPORATION
10.6 SUGGESTED QUESTIONS
10.1 INTRODUCTION
The word person is derived from the Latin word persons This term has a long and
interesting history. Originally it meant simply a mask. Later it dented the part played by
a man in life and still later the man who plays it. In the sense every human being has a
persons. In later Roman law the, term acquires a more specialized meaning, being
synonymous with caput or capacity. Finally the term came to denote a being capable of
sustaining legal rights and duties. These changes in the meaning of the word are
reflected in the history of law. Early law regarded all human being and human beings
alone as possessing personality. As law and legal system developed certain changes
were necessitated. Some human beings like slaves ceased to have any persons while
things and groups of people acquire one.
For the purposes of legal theory a person is any being whom the law regards as
capable of rights or duties. Persons are divided into two kinds distinguishable as natural
and artificial (legal). A natural person is a human being. Legal persons are beings real or

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imaginary who for the purposes of legal reasoning are treated in greater or less degree
in the same way as human beings. This led Salmond to remark “In law there may be
men who are not persons and conversely persons who are not men.”
10.2 LEGAL STATUS OF LOWER ANIMALS
The only nature persons are human beings. Beasts are not person either natural
or legal. However in primitive legal systems they have been end owned with rights and
duties. For example, in Greek law animals were tried for offences to human beings. In
the middle ages, trial of animals continued. In all these cases the animal is considered to
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be capable of sustaining duties and, therefore, to this extent a legal person. The same
idea is reflected in Jewish law where it is provided derived from early Aryan custom, the
conception that the animal which has occasioned the serious injury or death to a human
being must be surrendered to the vengence of the injured party or his relatives.
However, under modern law beasts are not deemed to possess personality. They
are merely things often the objects of legal rights and duties but never the subjects of
them. Beasts like man are capable of acts and possess interest Yet these acts are neither
lawful, nor unlawful. They are not recognized by law as the appropriate subject matter
either of permission or of prohibition.
A beast is incapable of possessing rights and it cannot be subject to duties also
its interests receive no recognition from the law. The law is made for men and allows no
fellowships or bonds of obligation between them and the lower animals.
There are, however, two cases in which the beasts may be thought to possess
legal rights. In the first place cruelty to animals is a criminal offence. In the second
place, a trust for the benefit of particular classes of animals as opposed to one for
individual animals is valid and enforceable as a valid trust. Does this imply that beasts
have legal rights and therefore legal personality? These duties towards animals are
conceived by law as duties towards society itself. They correspond not to private rights
vested in the immediate beneficiaries but to public rights vested in the community at
large, for the community has a rightful interest, legally recognized in the well being of the
animals.
Legal Status of dead men: Ordinarily speaking the personality of a human being
may be said to commence existence on birth and cease to exist at death. Dead men are
no longer persons in the eyes of law. Their legal personality comes to an end at their
death and are destitute of rights and liabilities. They have no rights because, they have
no interests. Yet although all the rights of a human being perish with him law without
conferring rights upon the dead does in some degree recognizes and takes into account
his desires and interests. There are three things in respect of which the anxieties of
living men extend beyond the period of their deaths and which law will take notice of.
Firstly, with respect to a person’s body. Law deems that a living man is interested in
the treatment to be awarded to his own dead body. Law secures his desire through
criminal law which makes it an offence to violate the grave. Every body has right to a
decent burial.
Secondly, the reputation of the dead receives some degree of protection from
criminal law. A libel upon a dead man will be punished by law.
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Thirdly, the most important matter in which the desires of dead man are followed
by law to regulate the actions of the living is that of testmentary succession. Many years
after his death his wishes continue to regulate and determine the disposition and
enjoyment of the property which he owned while living.
Legal Status of Unborn Persons: Though the dead possess no legal personality it
is otherwise with the unborn. There is nothing in law to prevent a man from owning
property before be is born. His ownership is necessarily contingent for he may never be
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born at all; but it is nevertheless a real and present ownership. A man may settle
property upon his wife and children to be born of her.
A child in the mother’s womb is for many purposes regarded by legal fiction as
already born. Thus in the law of property there is a fiction that a child in the mother’s
womb is a person in being for purposes of 1) acquisition of property by the child itself 2)
or being a life chosen to form part of the period in the rule against perpetuities.
To what extent unborn person can possess personal as well as proprietary right is
an unsettled question. In R. Vs. Senior it was held that willful or negligent injury
inflicted on a child in the womb by reason of which is dies after having been born alive
amounts to murder or manslaughter. In Walker Vs., Grear Northern Railway of Ireland
it was held by the Irish Court with respect to a claim made by a female infant against a
railway company for injuries inflicted on her while in her mother’s womb through a
colesion due to the defendance’s negligence, that no cause of action was disclosed and
the child had no right. However the decision of the judges was based upon the ground
that the company owed no duty of care towards a person whose existence was unknown
to them and not upon the ground that an unborn child had no cause of action for
personal harm. In Montreal Tramways Vs. Levelie where facts were similar to the Irish
case, the Canadian Court conceded the right of the mother’s womb to bring a successful
action for negligence against the respondent company.
Legal Persons: A legal person is any subject matter other than a human being to
which the law attributes personality. The extension for the conception of personality
beyond the class of human being is one of the note worthy facts of the legal imagination.
legal persons are artificial creations of law and may be as many kinds as the law pleases.
There are several distinct varieties of legal persons of which three may be selected
for special mention. They are distinguished by reference to different kinds of things
which the law selects for personification.
1) The first class of legal Persons consists of corporations which are constituted
by the personification of groups or series of individuals. the individuals who form the
corpus, of the legal persons are termed its members.
2) The second class is that in which the corpus or the object selected for
personification is not a group or series of persons but an institution. The law if it
pleases regard a church, a hospital or an university as a person.
3) The third kind of legal person is that in which the corpus is some fund or
estate devoted to special uses, a charitable fund.

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10.3 CORPORATION
Corporations are of two kinds distinguished in English law as corporations
aggregate and corporations sole. A corporation aggregate is an incorporated group of co-
existing persons and a corporation sole is an incorporated series of successive persons.
The former is that which has several members at a time while the latter is that which
has only one member at a time. Corporation aggregate are more important e.g., a
registered company. Corporations sole are found only when the successive holders of
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some public offices are incorporated so as to constitute a single permanent and legal
person. The sovereign is said to be a corporation of the kind to common law.
A company is in law something different from its shareholders or members. The
property of the company is not in law the property of the shareholders. The debts and
liabilities of the company are not attributed in law to its members. The company may
become insolvent while the members may remain rich. This position was affirmed by the
House of Lords in the famous case. Solaman Vs. Solaman and Co. Ltd. The facts of the
case are as follows. Mr. Soloman was the owner of a business which he turned into a
limited liability company. The other members of the company were his wife and children.
The total number of share issued were 20,007 of which Soloman took 20,001 and his
family members took the remaining six. Soloman also took mortgage debentures to the
amount of £10,000 in part payment of the business, Later the company became
insolvent. The lower courts held the creditors had prior claims over the assets of the
company since the company was merely a same transaction and was not different from
the share holders. But the house of Lords reversing the decision of the lower courts held
the company was in law a person distinct from Soloman and the latter has priority in
payments of debts over the claims of the other creditors. The leading American case on
the point is People’s Pleasure Park Vs. Rohleber where the question was whether a
restrictive covenant which prohibited the transfer of land to coloured persons was
applicable to a company of which all the members were blacks. It was held following
Solaman Vs Salaman & Co that the company was distinct from its members and the
transfer was valid.
In this vital aspect a corporation is essentially different from an unincorporated
partnership. A Partnership firm is not a person in the eye of the law: It is nothing else
than the sum of its individual members. There is no legal entity standing above the
partners as a company stands over the shareholders. The property and debts of the firm
are nothing else than those of the partners. A change in the list of partners is the
substituting of a new firm for the old one and there is no permanent legal unity as in
the case of the company. Moreover, the chief merit of a registered company is that
liabilities of the shareholders are limited.
10.4 THEORIES OF CORPORATE PERSONALITY
10.4.1 Fiction theory
Savigny, Salmond and Holland are the main exponents of this theory. According
to this theory a group has reality or existence, but it has no real personality in the sense
that it has no mind and no will Such an, entity to whom the law attributes legal
personality of a corporation is merely a fiction, a figment, of imagination created for the
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purposes of suing and being such on behalf of its members and representing their
interests. This theory starts on the assumption that human beings alone are person
properly so called. Then it concedes that some groups or institutions, are regarded as if
they are persons. The corporation may be considered as if it is a person distinct from the
human being who constitute it and yet if need be a departure may be made from this
view. Since a corporation can survive to the last of its members all the members of a
company may die and yet the company will survive till it is wound up under the law:
Professor Gower cites the example of a case where all the members of a corporation were
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killed in a bomb blast and still it left unaffected the continued existence of the company.
The exponents of fiction theory point out that such a thing is possible only if the
corporate personality is the fiction of the law.
Criticism of fiction theory: a) Now being a real person the corporation cannot have
any personality of its own, it has no will, no mind or ability to act. It can have only so
much of will, mind or ability as the law imputes to it by fiction. Naturally, it follows, that
a corporation cannot do an unlawful act.
b) Right connotes a subject and a fictitious subject cannot have rights.
c) This theory has led to unfortunate political results. For example confiscation
of church property has been justified by arguing that as ecclesiastical bodies were
fictitious being they could be deprived of legal existence and their legal capacities by the
same authority. Their property then became bona vacantia and passed on to the state.
10.4.2 Concession theory
This is closely allied to fiction theory. The chief exponents of this theory is Savigny
and Dicey. This a concession or privilege granted or conceded by the state to the group
or association. As a corollary it follows that no group or association can have legal
personality without the permission of the state since legal personality is a creation of law
and state. Grant of legal personality is a matter of discretion for the state. For this
theory identification of law and state is necessary whereas for this fiction theory it is not
necessary. This theory is the product of the era of the power of the national state which
superseded Holy Roman Empire.
Criticism of Concession Theory : This theory has been used for political purposes
to strengthen the state and to suppress autonomous bodies or groups within state.
Maitland remarks that the object of this theory is to keep legal personality under lock
and key.
10.4.3 Bracket or symbolist theory
The chief exponent of this theory is Jhering. This theory maintains that juristic
personality is a symbol to help in effecting the purpose of the group. It amounts to
putting a bracket around the members in order to regard them as a unit. Legal
personality is a convenient device of law which establishes a new unit and makes
possible a clear distinction between property rights and duties of the corporation on the
one hand and members of the corporation on the other. It also enables very complex
jural relations to be comprehended more simply. This theory rests on the assumption
that only human beings can have rights and interests and to discover the real state of
affairs the bracket can be removed.
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Criticism : It is legally untrue that only individuals can be holders of rights and
subject to duties.
10.4.4 Purpose theory
This theory is developed by Brinz in Germany and Barker in England. According
to this theory only human beings can have legal personality and they alone can have
rights and duties. The so called juristic persons are not persons at all. The property
owned by juristic persons do not belong to any one but it belongs to a purpose. All
juristic persons are merely legal devices for protecting or giving effect to some purposes.
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Such juristic persons are distinct from their human substratum and are treated a
subjectless properties without owners. This theory finds practical applications to many
charitable organizations or trade unions.
10.4.5 Honfield’s theory
Hohfeld draws a distinction between human beings and juristic persons the latter
being creation of arbitrary rules of procedure. Transactions are conducted by men and it
is they who become entitled and responsible ultimately. The corporate person is only a
procedural form which is used to work out in a convenient way the mass of jural relation
of a large number of individuals and to postpone the detailed functioning out of these
relations among the individuals inter se for a later more appropriate action.
10.4. 6 Kelsens theory
Kelsen adopts a purely formal approach and recognizes no distinction between
human beings and natural persons on the one hand and juristic persons on the other.
Any such distinction is irrelevant since all legal personality is artificial and derives its
legal validity from a superior norm. Personality according to him is only a technical
personification of a complex of norms of focal point of imputation which gives a unity to
a certain complex of rights and duties.
10.4.7 Realist theory
Supporters of this theory are Glerke and Maitland. According to this theory
juristic persons enjoy a real existence in a group. The personality of the corporation is
not a fiction of the law but real. So there is no distinction between juristic person and
real persons. Gierke maintains that a group has a will of its own, independent of the will
of the members who compose it. Their existence does not depend upon the permission of
the state or law. What is necessary for legal personality is that there should be a group
which will automatically develop a group will.
The chief merit of this theory lies in the fact that it represents a reaction against
the omnipotence of the state implied in the fiction and concession theories and
maintains that legal personality does not depend upon state recognition of concessions
and it has a separate independent existence that of the state.
Criticism : a) Realist Theory asserts that groups have a real life. But this is not
possible practically. As Professor Wolff points out that if it is true a contract between
two companies whereby one is to go into voluntary liquidation should be punishable as
an agreement to commit suicide.
b) It is said groups have group will, which is independent of the wills of its
component members. But in reality s Professor Wolff points out that the group will is

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only the result of mutually influenced wills. If groups are automatically legal persons
then every group viz’ a family association should automatically be legal persons. In law
this, is not so.
10.4.8 Organism theory
This theory is closely allied to realist theory. According to this theory groups are
persons because they correspond biologically to human beings and they are treated as
organisms. But this theory based on a special use of the term organism and
implications of such biological comparison leads only to difficulties.
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10.5 ACT AND LIABILITIES OF CORPORATION
An important rule in connection with companies incorporated by special statutes
and under the Companies Act is that their powers are restricted by law in a way that
the powers of a human being are not. Any act which lies beyond these legally appointed
limits will not be imputed to the corporation even though done in its name and on its
behalf. It is said to be ultra vires of the corporation and as a corporate act it is null and
void. Speaking generally such corporations can do those things only which are incidental
to the fulfillment of the purposes, for which the law created it. All its act must be
directed to its legally appointed end. The memorandum of association of a company
registered under the companies Act must set forth the purpose for which it is
established.
As far as criminal liability of the corporation is concerned legal theory encounters
some hurdles. A corporation has neither a soul to be damned nor a body to be kicked,
so how to punish if at all we can hold the corporation guilty. In a number of cases,
however, contrary to the earlier views of the courts which had maintained that since the
corporations do not have the guilty mind they cannot be found guilty of crimes, the
courts have held that corporations are liable for many offences. Thus in D.D.P. Vs. Kent
and Sussex Contactors the transport manager of a company had sent in false returns
for the purpose of obtaining petrol coupons. The Court held that the company had
through its agents committed the offence. In R. Vs. C. R. Haulage the court held a
company guilty of common law conspiracy to defraud where in managing director and
nine others had conspired to charges another for a quantity of goods in excess of that
which was in fact delivered. In Moore Vs. Breslor. a company was convicted for acts,
committed by the secretary of the company who was a branch manager, not authorized
by the Board of Director. In Lennard’s Carrying Co. Vs. Asiatic Petroleum Co. the English
court of appeal raid down the rest to find out when the act of the agent can be imputed
to the corporation. The test according to Lord Haldane is to find out whether the agent
constituted the after ego of the company or merely a servant. At present, there appears
to be no difficulty in attaching criminal liability to the corporations.
10.6 SUGGESTED QUESTIONS
1. Explain the concept of personality and examine the legal status of animals and
urban child.

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LESSON-11

TITLES

STRUCTURE
11.1 INTRODUCTION
11.2 THEORIES OF CONTRACT
11.3 KINDS OF AGREEMENT
11.4 SUGGESTED QUESTIONS
11.1 INTRODUCTION
While dealing with rights and duties we saw that every right involves a title or
source from which it is derived. If the law confers a right upon one man which it does
not confer upon another the reason is that certain facts are true of him which are not
true of another and these facts are the title of the right. These facts which give rise to a
title are also called as vestitive facts.
Investitive Original Creation of
facts titles Rights
or Titles
Vestitive facts Derivative title Transfer of
Divertitive Alienative facts Right
facts Extinctive facts Destruction of
Rights
The facts which confer rights upon a person are called investitive facts or titles,
whereas facts which cause the loss of rights may be called as divertitive facts. The term
title used a as generic term to include both investitive as well as a divertitive facts. So a
vestitive fact is one which determined positively or negatively the vesting of a right in its
owner.
Vestitive facts or titles are of two kinds, being either original or derivative. The
former are those which create a right de novo the latter are those which transfer an
already existing right to a new owner. The catching of a fish by a fisherman in the ocean
is an act of appropriation by which he acquires ownership over a thing which is res
nullius. If he takes the fish to the market and sells it then he is transferring an existing
due to another person. In the first instance a right is created denovo whereas in the
latter instance an existing right is transferred.
Just as titles are of two kinds, divestive facts are also of two kinds. They are
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either extinctive or alienative. The former are those which divest a right by transferring it
to some other owner. The receipt of payment by the seller for goods sold is divestitive of
the rights of the seller over his goods.
It is plain that derivative title and alienative facts are not two different classes of
facts but are merely the same facts, looked at from two different points of view. The
transfer of a right is an event which has a double aspect. It is the acquisition of a right
by the transferee and the loss of the right by the transferor. The vestitive act if
considered with reference to the transferee is a derivative title while from the point of
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view of the transferor it is an alienative fact. Purchase is a derivative title but sale is an
alienative fact. yet they are merely two different side of the same event.
These different classes of vestitive facts correspond to the three chief events in
the life history of a right viz, its creation, its extinction and its transfer. By an original
title a right first comes into existence; by an extinctive fact it is wholly destroyed; by
detrivative titles and alienative facts on the other hand rights are transferred from one
owner or another owner.
Acts in the law: Vestitive facts are divisible into two fundamentally distinct
classes, accordingly as they operate in pursuance of the will of the parties concerned or
independently of it. That is to say the creation, transfer and extinction of right are either
voluntary or involuntary. In many cases law allows a man in acquire or loss his rights
by a manifestation or declaration of his will and intent directed to that end. In other
cases it confers rights upon him or takes them away without regard to any purpose or
consent of his at all. The distinction between these two classes of vestitive facts can be
expressed as act of the party and act of the law. An act of the party is any expression of
the will or intention of the person concerned, directed to the creation, transfer or
extinction of the right and effective law for that purpose. An act of the law on the other
hand is the creation, extinction or transfer of a right by operation of law itself
independent of any consent there to on the part of him concerned.
The expression act of the party is one of some awkwardness and it is more
convenient in general to substitute for it the technical term act in the law. So the term
act in law is substituted for act of the party by Salmond. Acts in the law are of two kinds
which may be distinguished as unilateral and bilateral. An unilateral act is one in which
there is only one party whose will is operative, e.g. testamentary disposition. A bilateral
act on the other hand is one which involves the consenting wills of two or more distinct
parties, e.g. contract. Bilateral acts in the law are called agreements.
Unilateral acts in the law are divisible into two kinds in respect of their relation to
the other party concerned. For in some instances they are adverse to him that, is to say
they take effect not only without his consent but notwithstanding his dissent. His will is
wholly inoperative and powerless in the matter.
Agreements
Of all vestitive facts, acts in law are the most important and among acts the
law, agreements are entitled to the chief place. The importance of agreement as a
vestitive fact lies in the universality of its operations. There are few rights which cannot
be acquired through the assent of the persons upon whom the correlative duties are
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imposed. There are few rights which cannot be transferred to another by the will of him
in whom they are presently vested. There are few which are not extinguished when their
owner no longer desires to retain them.
By what reasons then is law induced to allow this far reaching operation to the
fact of agreement or contract? Why should be mere consent of the parties be permitted
in this manner to stand for a title of a right? Why should promises be enforced? What is
the justification of contract law?
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11.2 THEORIES OF CONTRACT
11.2.1 The intuitionists view:
The simplest answer to the question why agreements or contracts should be
enforced is that of the intuitionists. According to these scholars promises are sacred
perse and that there is something, inherently despicable about not keeping a promise
which a properly organized society should not tolerate. There is no doubt from the
practical point of view the ability to rely on the promises of others, adds to the
confidence necessary for social intercourse and enterprise. But as absolute proposition
this is untenable. Some freedom to change one’s mind is necessary for social intercourse
between those who lack omniscience.
11.2.2 The will theory of contract
According to the classical view the law of contract gives expression to and
protects the will of the parties for the will is something inherently worthy of respect.
Hence Savigny, Windshied, Potheir, Pollock and Salmond hold that the first essential of a
contract is the agreement of wills or the meeting of the minds.
The important objections to this theory are as follows. Firstly minds or wills are
metaphysical entitles difficult to recognize. So there is an element of fiction in this
theory. Secondly every contract express the consensus or agreed wills to the two parties.
But in fact most litigation in this field arises precisely because of the advent of
conditions that the two parties did not foresees when they entered into the transaction.
Litigation usually reveals the absence of genuine agreement between the parties abinitio.
If both parties had foreseen the difficulty, provision would have been made for it in the
beginning when the contract was drawn up. When the courts proceed to interpret the
terms of the contract they are not merely seeking to discover the actual past meanings,
but more generally they decide the equities, rights and obligations of parties in such
circumstances and these legal relations are determined by the courts and jural system
and not by the agreed will of the contesting.
11.2. 3 The Injuriance Reliance theory:
According to this theory contractual liability arises only where some one makes a
promise explicitely in words or impliedly by some act; someone else relies on it and
suffers some loss thereby. This theory appeals to the general moral feeling that not only
ought promises be kept but anyone innocently injured by relying on them is entitled to
have his-loss made good by the one who has caused it. This theory also appeal
powerfully to modern legal theorists because it seems to be entirely objective and social.
It does not ask the court to examine the intention of the promisor. Instead the court is
asked to consider whether what the defendant has said or done is such that reasonable

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people generally do rely on it under the circumstances. The resulting loss can be directly
proved and to some extent, even measured. In emphasizing the element of injury
resulting from the breach the whole question of contract is integrated in the larger realm
of obligations and this tends to put the issues in the right perspective and to correct the
misleading artificial distinctions between breach of contract and other civil wrong or
torts.
Nevertheless this theory is not entirely consistent with existing law. Contractual
obligation is not co-extensive with injurious reliance because there are instance of both
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injury and reliance for which there is no contractual obligation and these cases of such
obligation where there is no reliance or injury. Moreover, the recovery that the law
allows to the injured promises is determined not by what he lost in relying on the
promise but what he would have gained if the promise had been kept.
11.2.4 The Equivalent theory
According to this theory popular sentiment generally favours the enforcement of
those promises which involve some quid pro quo. It is generally considered unfair that
after A has given something of value or rendered ‘B’ some service. B should fail to render
anything in return. Even if what ‘A’ induces by way of gift, ‘B’ owes him gratitude and
should express it some appropriate way. The demand for justice behind the law is but an
elaboration of such feelings of fair and unfair.
11.3 KINDS OF AGREEMENT
Classes of Agreement: Agreements are divisible into three classes for they either
create rights or transfer them, or extinguish them. Those which create rights are
themselves distinguishable as contracts and grants. A contract is an agreement which
creates obligation or right in personam between the parties to it. A grant is an
agreement which creates a right of any other description. Examples being grants of
leases, easements, charges, patents, franchises etc. An agreements which transfers a
right may be termed generally as an assignments. One which extinguishes a right is a
release, discharge or surrender.
As already indicated a contract is an agreement intended to create a right in
personam between the contracting parties. No agreement is a contract unless its effect
is to bind the parties to each other by the vinculam juris of a newly created personal
right It commonly takes the form of a promise or set of promises. That is to say
declaration of the consenting wills of two persons that one of them shall be henceforth be
under an obligation to the other assumes the form of an undertaking by the one with the
other to fulfil the obligation so created. Not every promise however amounts to a
contract. To constitute a contract there must be not merely a promise to do a certain act
but a promise express or implied to do this act as a legal duty.
There are four distinct kinds agreements.
1. Contracts ; creating rights in personem,
2. Grants – creating rights of any other kind
3. Assignments – transferring rights
4. Releases – extinguishing rights.
It often happens than an agreements is of a mixed nature and so falls within two
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or more of these classes at the same tie. Thus the sale of a specific chattel is both a
contract and an assignment for it transfers the ownership of the chattel and at the same
time creates and obligation to pay the price.
Void and Voidable Agreement
In respect of their legal efficacy agreements are of three kinds being either valid,
void or voidable. A agreement is one which is fully operative in accordance with the
intent of the parties. A void agreement is one which entirely fails to receive legal
recognition or sanction, the declared will of the parties being wholly destitute of legal
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efficacy. A voidable agreement stands midway between these two cases. It is not a nullity
but its operation is conditional and not absolute. By reason of some defect in its origin it
is liable to be destroyed or cancelled, at the option of one of parties to it. On the exercise
of this power the agreements not only ceases to have any efficacy but is deem to have
been void ab initio. The avoidance of it relates back to the making of it. In other words a
voidable agreement is one which is void or valid at the election of one of the parties to it.
A lease determinable on notice or on reentry for reach of convenant is not for that
reason voidable because when determined it is destroyed not ab initio but merely from
then onwards.
Void and voidable agreements may be classified as invalid. The most important
causes of invalidity are six in number.
1) Incapacity: Certain classes of person are wholly or partially destitute of the
power of determining their rights and liabilities by way of consents. Minors, lunatics etc
are said to suffer from incapacity which precludes them from entering into contracts.
Similarly agreements of an incorporated company may be invalid because of ultiavries
rule.
2) Informality: Agreements are of two kinds which may be distinguished as simple
and formal. A simple agreement is one in which nothing is required for its effective
operation beyond the manifestation of the consenting wills of the parties. A formal
agreement on the other hand is one in which the law requires not merely that consent
shall exist but that it shall be manifested in some particular form in default of which it is
held of no account. Thus the intent of the parties may be held effective only it expressed
in writing signed by them to it must be acknowledged by writnesses etc. The leading
purpose of such forms is two fold. They are in the first place designed as preappointed
evidence of the fact of consent and of its terms, to the intent that this method of
determing rights and liabilities may be provided with the safeguards of permanence,
certainty and publicity. In the second place their purpose is that all agreements may be
their help be the outcome of adequate reflection. Any necessary formality has the effect
of drawing a sharp line between the preliminary negotiations and the actual agreement
and so prevents the parties from drifting by inadevertance into unconsidered consent.
3) Illegality: In the third place an agreement may be invalid by reason of the
purposes with which it is made. To a very large extent men are free to agree together

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upon any matter as they please; but this autonomous liberty is not absolute. Limitations
are imposed upon it partly in the interest of the parties themselves and partly on behalf
of the public. There cannot be any valid contract if it is for a purpose or object prohibited
by law.
4) Error or mistake: Error or mistake as a ground of invalidity is of two kinds
which are distinguishable as essential and unessential. Essential error is that which is of
such a nature as to prevent the existence of any real consent and therefore of any real
agreement. The parties have not in reality meant the same thing and therefore have not
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in reality agreed to anything. Their agreement exists in appearance only and not in
reality. The effect of error of this kind is to make the agreement wholly void.
Unessential error on the other hand is that which does relate to the nature or
contents of the agreements but only to some external circumstance serving as one of the
inducements which led to the making of it. The parties have not agreed to the something
in the same sense though one of them would not have made that agreement had he not
been under a mistake. The general rule is the unessential error has no effect on the
validity of an agreement. This rule however is subject to an important exception for even
an unessential error will in general make an agreement voidable at the option of the
mistaken party if it had been cashed by the misrepresentation of the other party.
5) Coercion: In order that consent may be firstly allowed as a title of right it must
be free. It much not be the product of any form of compulsion or undue influence
otherwise basis of its legal operation fails.
6) Want of consideration: A further condition very commonly required by English
law for the existence of fully efficacious consent is that which is known by the technical
name of consideration. This requirement is however is almost wholly confined to the law
of contract, other forms of agreement being generally exempt from it. A consideration in
its widest sense is the reason, motive or inducement by which a man is moved to bind
himself by an agreement.
11.4 SUGGESTED QUESTIONS
1. Define title what are the various modes of acquiring it.

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LESSON-12

PROPERTY

STRUCTURE
12.1 INTRODUCTION
12.2 THEORIES OF PROPERTY
12.2.1 Occupation theory
12.2.2 The labour theory
12.2.3 The personality theory
12.2.4 Functional theory
12.3 MOVABLE AND IMMOVABLE THINGS
12.4 PRESCRIPTION
12.5 SUGGESTED QUESTIONS
12.1 INTRODUCTION
The term property according to Salmond possesses a singular variety of different
applications having different degrees of generality. These are.
1) All legal rights: In its widest sense property includes all the legal rights of a
person, of whatever description. A man’s property is that is his in law. Thus Blackstone
speaks of the property which a master has in the person of his servant and a father in
the person of his child.
2) Proprietary rights: In a second and narrower sense property includes not all the
rights of a person but only his proprietary as opposed to his personal rights. The former
constitutes his estate or property while the latter constitutes his status or his personal
condition. In this sense a man’s land, chattels, shares and debts due to him are his
property but not his life, liberty or reputation.
3) Proprietary rights in rem: The third meaning of this term includes only those
rights which are both proprietary as well as in rem. The law of property is the law of
proprietary right in rem while the law of proprietary rights in personam being
distinguished from it as the law of obligations.
4) Corporeal property: Finally in the narrowest use of the term it includes nothing
more than corporeal property that is to say the right of ownership in a material object or
the object itself.

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12.2 THEORIES OF PROPERTY
There are two types of theories of property, one attempts to explain how property
came to be, to describe the facts; the other passes an ethical judgement on those facts
and attempts to justify or condemn the institution of private property. Sometimes,
however these two aims are combined for e.g. a writer argues that property arose to
reward private enterprise and that therefore it is ethically justifiable.
12.2.1 Occupation theory
The oldest and until recently the most influential defence of private property was
based on the assumed right of the original discoverer and occupant to dispose of that
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which thus became his. He who first reduces into possession a piece of property has the
best of justification for remaining in control. This view dominated the thought of Roman
jurists and of modern philosophers from Grotius to Katn so much so the right of the
labourer to the produce of his work was sometimes defended on the ground that the
labourer occupied the material that he fashioned in to the finished product.
Criticism: a) Maine suggests that the doctrine of occupation conferring title is the
result of later thought. It is only when the rights or property have gained a sanction from
long practical in viability and when vast majority of the objects of employment have
subjected to private ownership that mere possession is allowed to invest the first
possessor with dominium over commodities in which no prior proprietorship has been
asserted.
b) According to Cohen few accumulations of great wealth are ever simply found.
Rather they were acquired by the labour of many by conquest, by business manipulation
and by other means. It is obvious that today at any rate few economic goods can be
acquired by discovery and first occupancy. Moreover even if we were to grant that the
original finder or occupier should have possession as against any one else, it by no
means follows that he may use it arbitrarily or that his rule shall prevail indefinitely after
his death. The right of others to acquire the property from him, by bargain, by
inheritance or by testamentary disposition is not determined by the principle of
occupation.
12.2.2 The labour theory
This theory regards property as the result of individual labour. Industry should be
encouraged by granting to a worker the ownership of any res which is created by his toil.
But this doctrine seems to imagine a simple state of society in which each man create
his own products. Things must be created out of something if the material be a res
nullius there is something to be said for rewarding the work of the creator. However, in
modern societies economic goods are never the result of any one man’s unaided labour.
How shall we determine what part of the value of a table should belong to the carpenter,
to the lumberman, to the transport worker, to the policeman who guarded the place
while the work was being done and to the indefinitely large number of others whose co-
operation was necessary., Moreover much wealth is not the result of labour at all but of
some fortunate accident.
12.2.3 The personality theory of property
Hegal, Ahrens Lorimer and other idealists have tried to deduce the right of
property from the individual rights to act as a free personality. To be free one must have

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a sphere of self assertion in the external world. A person’s private property provides such
an opportunity. The community has slowly evolved from status to contract from group
holding to individual property, liberty having grown in the process and it is the control of
property that makes men free. He who is wholly dependent on property controlled by the
others in their own interest can hardly live the life of the free. This theory leads to
conclusion that society should be so organized that every member can be toil within this
powers acquire such property as is necessary for true self realization.
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12.2.4 The theory property is the creation of the State
According to this theory private property is the creation of the state achieved only
after a long struggle with the clan. If we regard as the essential characteristic of private
property the right to exclude others, it is true that the state has provided the machinery
by which these rights are enjoyed. According to Bentham property and law are born
together and if law is taken away property also ceases to exist.
12.2.5 The Functional Theory
The increasing tendency of modern times is not to attempt to justify the
institutions of private property by prior theory but to build doctrines on an analysis of
the functioning and social effects of the institution. This approach is sometimes called
the functional theory and it lays down that property which is the result of effort or
involves the giving of service is ethically justifiable but property which is an undeserved
claim on the wealth produced by others is not. If property is to be effective in
encouraging production then society should see that it is distributed on proper
principles.
12.2.6 Property and Sovereignty
Property is a relation not between an owner and a thing but between an owner
and other individuals in reference to things. A right is always against one or more
individuals. So the essence of private property is always the right to exclude others. The
law helps me to exclude others from using the things that it assigns to me. If somebody
else wants to use the food, the house or the land or the plough that the law call mine he
has to get my consent. To the extent that these things are necessary to the life of my
neighbour, the law confers on me a power to do him what I want. This character of
property as sovereign power compelling service and obedience may be obscured for us in
a commercial economy by the fiction of the so called labour contract as a free bargain
and by the frequency with which service rendered indirectly through a money payment.
In this context Renner’s (a Austrian jurist) analysis of property in capitalist
society is worth considering Renner chooses the legal institution of ownership as the
basis of investigation of the extent to which legal order corresponds to the social function
of an institution. According to Renner, originally in medieval society ownership which in
law means the absolute power of disposing of a thing symbolisers a unit of which the
family farm is typical. It comprises a complex of things not only the house, the
implements of work etc., but also the place of work and production the place of
consumption the market and the family. In that stage, the legal conception of ownership
represents on the whole adequately is economic substratum. But economic evolution
gradually alters the function of ownership. Ownership of complex of things now regarded
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as capital not coincides longer with the substrata of personal work; it becomes a source
of a new power of command. By means of the power the capitalist exercises a quasi
public authority over those who are lied to him by the contract of service. The juristic
institution is still the same as at the time when the worker also owned the means of
production but its function has changed. The owner of certain things can use his
ownership to control other persons. Legally this is done by the use of ownership as the
center of a number of complementary legal institution such as sale, loan, tenancy, hire
and contract of service. By means of contract of service, the worker agrees to hand over
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the substrats of work to the owner of the capital. Formally this contract an institution of
private law is concluded between equals. In fact the liberty of those who do not own the
means of production is confined to a certain choice between those to whom they are
compelled to transfer by contract their share of the product. Behind the fiction of
equality there stands the reality of the capitalist, exercising a delegated public power of
command. Another change of function takes place. The unity of ownership typical of the
former economic conditions is broken up as specialization in the various function of
ownership develops.
Property now becomes a source of power. At the same time the legal ownership
ceases to represent the real control of the thing. The complementary legal institutions
assumes the real functions of ownership which becomes an empty legal form. Thus
ownership has ceased to be what it was. While remaining the legal form an institution of
private law implying the total power of doing with the thing what one likes it has infact
become an institution of public law.
Kinds of property
All property according to Salmond is either corporeal or incorporeal. Corporeal
property is the right of ownership in material things, incorporeal property is any other
proprietary rights in rem. Incorporeal right of property is itself of two kinds viz.
1) Jura in rea liena or encumbrances : whether over material or immaterial things
and 2) Jura in repropria over immaterial things. The resulting classification of property
appears in the following table.
Material Land
Jura in things
re-propria chattels Corporeal
Property Immaterial
things Patents
Copyrights
Incorporeal
Jura in Leases trade marks
re aliena Servitude etc.
Securities
Ownership of Material things
The ownership of a material object is he who owns a right to the aggregate of its
uses. He who has merely a special and definitely limited right to the use of it, such as
right of way or other servitude is not an owner of the thing but merely on encumbrance

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of it. This definition however must not be misunderstood. Ownership is the right of
general use not that of absolute or unlimited use. We see more about the incidents of
ownership later.
12.3 MOVABLE AND IMMOVABLE PROPERTY
Among material things the most important distinction is that between movables
and immovables or to use the familiar form between chattels and land considered in its
legal aspect an immovable property includes the following elements.
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a) A determinate portion of the earth’s surface.
b) The ground beneath the surface down to its center of the world.
c) Possibly the column of spare above the surface adinfinitum.
d) All objects which are on or under the surface in its natural state e.g. minerals
and natural vegetation.
e) Lastly all objects placed by human agency on or under surface with the
intention of permanent annexation. These become part of the land and lost
their identity as separate movables or chattels.
12.4 PRESCRIPTION
The subject matter of a right of property is either a material or an immaterial
thing. A material thing, is a physical object an immaterial thing is anything else which
may be the subject matter of a right. In the great majority of cases a right of property is a
right to the uses of a material object. The only immaterial things which are recognized
by law as the subject matter of rights are the various immaterial products of human skill
and labour. The immaterial product of a man’s brains may be as valuable as his land or
his goods. The law therefore gives him a proprietary right in it and the unauthorized use
of it by other persons is a violation of his ownership. These immaterial forms of property
are of five kinds.
1. Patents: The subject matter of a patent right is an invention. He whose skill or
labour produces the idea of a new process, instrument or manufacture has that idea as
his own in law. He alone is entitled to use it and to draw from it the profit inherent in it.
2. Literary Copyright: The subject matter of this right is the literary expression of
facts or thoughts. He too whose skill or labour this expression is due has in it a
proprietary right of exclusive use.
3. Artistic Copyright: Artistic design in all its various forms such as drawing,
painting, sculpture and photography is the subject matter of a right of exclusive use
analogous to literary copyright. The creations of an artist’s skill or of a photographer’s
labour are his exclusive property. The object of this right is not the material thing
produced but the form impressed upon it by the market.
4. Musical and dramatic copyright. The immaterial product of skill of the
musician or the play right is the subject matter of a proprietary right of exclusive use
which is infringed by any unauthorized performance or representation.
5. Commercial goodwill trade marks and trade names: He who by his skill and
labour establishes a business acquires thereby an interest in the goodwill of it that is to
say in the established disposition of customers to resort to him. To this goodwill he has
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an exclusive right which is violated by any one who seeks to make use of it for his own
advantage as by falsely representing to the public that he is himself carrying on the
business in question. Special forms of this right of commercial good will are rights to
trade names and trade marks. Every man has an exclusive right to the name under
which he carries on business of sells his goods, to this extent atleast that no one is at
liberty to use that name for the purpose of deceiving the public and so injuring the
owner of it. He has a similar right to the exclusive use of the marks, which he impresses
upon his goods and by which they are known and identified in the market as his.
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Having considered the different kinds of rights in re propria which fall within the
law of property we proceed to deal with the various rights in re aliena to which they may
be subject. They are four in nature viz., leases, servitudes, securities and trusts. The
nature of trust will be death with under ownership and it is necessary here to consider
the other three types only.
Leases: A lease is a form of encumbrance which consists, in a right to the
possession and use of property owned by some other persons. It is the outcome of
separation of ownership and possession. This separation of ownership and possession
may be either rightful or wrongful and if it is rightful it is an encumbrance of the owner’s
title.
The right which is thus encumbered by a lease is usually the ownership of a
material object and more particularly the ownership of land. The lessee of the land is he
who right fully possesses it but does not own it. The lessor of land is he who owns it but
who has transferred the possession of it to another. Encumbrance by way of lease is not
confined however to the right of ownership of a material object. All right may be leased
which can be possessed that is to say which admit of continuing exercise and no rights
can be leased which cannot be possessed that is to say which extinguished by their
exercise.
Servitudes: A servitude is that from of encumbrance which consists in a right to
the limited use of a piece of land without the possessing of it for (e.g.) a right of way over
it, a right to the passage of right across it to the windows of a house on the adjoining
land etc. It is an essential characteristics of servitude that it does not involve the
possession of land over which it exists. This is the difference between a servitude and a
lease. A lease of land is the rightful possession and use without the ownership of it.
While a servitude over land is the rightful use without either the ownership or the
possession of it. Servitudes are of two kinds which may be distinguished as private and
public. A private servitude is one vested in a determinate individual. For e.g. a right of
way vested in the owner of one piece of land over an adjoining piece or a right granted to
one person of fishing in the water of another. A public servitude is one vested in the
public at large or in some class of indeterminate individuals; for e.g. the right of the
public to a highway overland in private ownership, the right of the public of navigate a
river of which the bed belongs to some private person etc.
Servitudes are distinguishable as being in appurtenant or in gross. A servitude
appurtenant is one which is not merely an encumbrance of one piece of land but is also
accessory to another piece. It is a right of using one piece for the benefit of another. The
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land which is burdened with such a servitude is called the servient tenement, that
which has the benefit of it is called the dominant land or tenement. A servitude is said to
be in gross when it is not so attached and accessory to any dominant tenement for
whose benefit it exists.
Securities: A security is an encumbrance the purpose of which is to ensure or
facilitate the fulfilment or enjoyment of some other right vested in the same person. Such
securities are of two kinds which may be distinguished as mortgages and liens. A
mortgage, is sometimes said as a security created by the transfer of the debtor’s property
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to the creditor while a lien is merely an encumbrance of some sort created in favour of
the creditor over property which remains vested in the debtor; a mortgage is the owner of
the property while a lienee is merely an encumbrancer of it. In as much as a mortgage
is not necessarily the transfer of the property to the creditor what is its essential
characteristics. A is a right which in its own nature a security for a debt and nothing
more e.g., a right to retain possession of a chattel until payment, a right to distrain for
rent or a right to receive payment out of a certain fund. A mortgage on the contrary is
a right which is in its own nature an independent or principal right and not a more
security for another right but which is artificially cut down and limited so that it may
serve in the particular case as a security and nothing more; for e.g., a lease of land for a
term of years. The right of the licene is vested in his absolutely and not merely by way
of security. The right of a mortgage on the contrary is vested in him conditionally and by
way of security only, for it is in itself something more than a mere security. A lien cannot
survive the debt secured; it ceases and determines ispo jure on the extinction of the
debt. In its merely the shadow cast by the debt upon the property of the debtor. But the
right vested in a mortgage has an independent existence. It will or may remain
outstanding in the independent existence. It will or may remain outstanding in the
mortgage even after the extinction of the debt. When thus left outstanding it must be
retransferred or surrendered to the mortgagor and the right of the mortgagor to this
reassignment or surrender is called his right or equity of redemption. The existence of
such an equity of redemption is therefore the test of a mortgage. In liens there is no such
right for there is nothing to redeem. The creditor owns no right which can be bound to
give back or surrender to his debtor. For his right of security has come to its natural
and necessary termination with the termination of the right secured.
Mortgages are created either by the transfer of the debtor’s right of the creditor or
by the encumbrance of it in his favour. The first of these methods is peculiar to
mortgages for liens can be created only by way of encumbrance. Whenever a debtor
transfer his right to the creditor by way of security the result is necessarily a mortgage.
For there can be no connection between the duration of the debt so secured and the
natural duration of the rights so transferred. The right transferred may survive the debt
and the debtor therefore retains the right of redemption which is the infallible test of the
mortgage. When on the other hand, a debtor encumbers his right in favour of the
creditor the security so created is either a mortgage or a lien according to the
circumstances.
In a mortgage by way of transfer the debtor though he assigns the property to his
creditor remains nonetheless the beneficial or equitable owner of it himself. A mortgagor
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by virtue of his equity of redemption has more than a mere personal right against the
mortgage to the reconveyance of the property; is already the beneficial owner of it. This
double ownership of mortgaged property is merely a special form of trust. The mortgage
holds in trust for the mortgagor and has himself no beneficial interest have so for as is
required for the purpose of an effective security. On payment of extinction of the debt
the mortgagee becomes a mere trustee and nothing more. The ownership remains vested
in him but is now bare of any vestige of beneficial interest.
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The prominence of mortgage as the most important form of security is a
peculiarity of English law. In Roman law the place assumed by mortgages is taken by the
lien in its various forms. The Roman mortgage fell out of use before the time of Justinian
having been displaced by the superior simplicity and convenience of the lien; and in this
respect modern continental law has followed the Roman law. There can be no doubt
that a similar substitution of the lien for the mortgage would greatly simplify and
improve the law of England. Whatever can be done by way of mortgage in securing a
debt can be done equally well by way of lien and lien avoids all that extraordinary
disturbance and complication of legal relations which is essentially involved in the
mortgage. The best type of security is that which combines the most efficient protect on
of the creditor with the least interference with the rights of the debtor and in this latter
respect, the mortgage falls short of the ideal. The true from of security is a lien leaving
the full legal and equitable ownership in the debtor but vesting in the creditor such
rights and powers as are required according to the nature of the subject matter, to give
the creditor sufficient protection and lapsing ipso jure with the discharge of the debt
secured.
Liens are of various kinds and which can be enumerated as follows:
1. Possessory Liens: Consisting in the right to retain possession of Chattles or
property of the debtor e.g. pledges of chattels, liens of innkeepers etc.
2. Rights of distres or seizure: Consisting in the right to take possession of the
property of the debtor example being right of distress for rent etc.
3. Power of sale: This is a form of security seldom found in isolation for it is usually
incidental to the right of possession conferred by one or other of the two
proceeding forms of lien.
4. Powers of forfeiture: Consisting in a power vested in the creditor of destroying in
his own interest some adverse right vested in the debtor e.g. landlords right of
reentry upon his tenant.
5. Charges: Consisting in the right of a creditor to receive payment out of some
specific fund or out of the proceeds of the realization of specific property. The
fund or property is said to be charged with the debt.
Modes of acquisition of property. The principal modes of acquiring proprietary
rights are four in number. These are the following: Possession, Agreement, prescription
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and inheritans. Of the four first two have been dealt in the occupation theory of property
and titles. We will deal with the last two in the following pages.
12.5 PRESCRIPTION
Prescription may be defined as the effect of lapse of time in creating and
destroying rights it is the operation of time as a vestitive fact. It is of two kinds viz, 1)
positive or acquisitive prescription and 2) negative or extinctive prescription. The former
is the creation of a right, the latter is the destruction of one by the laspse of time. An
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example of the former is the acquisition of a right or way by the defacto use of it for
twenty years. An instance of the latter is the destruction of the right to sue for a debt
after six years from the time at which it first became payable.
Lapse of time therefore has two opposite effects. In positive prescription it is a title
of right, but in negative prescription it is a diverstitive fact. Whether it shall operate in
the one way or in the other depends on whether it is or is not accompanied by
possession. Positive prescription is the investitive operation of lapse of time with
possession while negative prescription is the diverstitive operation of lapse of time
without possession. Long possession creates rights and long want of possession destroys
them.
The rational basis of prescription is to be found in the presumption of the
coincidence of possession and ownership of fact and of right. Owners usually possessors
and possessors are usually owners. Fact and right are usually coincident therefore
former is the evidence of the latter. Want of possession is evidence of want of title. The
longer the possession or want of possession has continued the greater is its evidential
value.
Prescription is not limited to rights in rem. It is found within the sphere of
obligations as well as within that of property. Positive prescription however is possible
only in the case of rights which admit of continuing exercise and enjoyment. Most rights
of this nature are rights in rem. Rights in personam are commonly extinguished by their
exercise and therefore cannot be acquired by prescription. Negative prescription is of two
kinds, which may be distinguished as perfect and imperfect. The latter is commonly
called the limitation of actions, the former being then distinguished as presumption in a
narrow and specific sense. Perfect prescription is the destruction of the principal right
itself while imperfect prescription is merely the destruction of the accessory right of
action, the principal right remaining in existence. In other words, in the one case the
right is wholly destroyed but in the other it is the merely reduced from a perfect and
enforceable right to one which is imperfect unenforceable.
2. Inheritance: In respect of the death of their owners all rights are divisible into
two classes being either inheritable or uninheritable. A right is inheritable if it survives
it owner, uninheritable if it dies with him.
The rights which a dead man leaves behind him vest in his representative. They

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pass to some person whom the dead man or the law on his behalf has appointed to
represent him in the world of the living. Inheritance is in some sort a legal and fictitious
continuations of the personality of the dead man for the representative is in some sort
identified by the law with him whom he represents. The representative of a dead man
though the property of the deceased is vested in him is not necessarily the beneficial
owner of it. He holds it on behalf of two classes of persons. They are creditors and
beneficiaries of the estate.
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Although a dead man has no rights, a man while yet alive has the right or power
to determine the disposition after he is dead the property which he leaves behind him
His last will duly declared in the document is held inviolable by the law. The limitations
imposed by the law upon this power of the dead over the living are three kinds.
a) Limitations of time: It is only during a limited period after his death that the
directions of a testator as to the disposition of his property are held valid. He must so
order the destination of his estate that within this period the whole of it shall become
vested absolutely in some one or more person free from all testamentary conditions and
restrictions.
b) Limitations of amount: A second limitation of testamentary power imposed by
most legal systems is that a testator can deal with a certain proportion of his estate only,
the residue being allotted by the law to these to whom he owes a duty of support viz his
wife and children.
c) Limitations of purpose: The power of testamentary disposition is given to a man
that he may use it for the benefit of other men who survive him. No man can validly
direct that his lands shall lie in waste or that his money shall be buried with him etc.
12.5 SUGGESTED QUESTIONS
1. Define property and discuss the different modes of acquiring property.

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LESSON-13

OWNERSHIP

STRUCTURE
13.1 INTRODUCTION
13.2 AUSTINS DEFINITION
13.3 DIFFERENT KINDS OF OWNERSHIP
13.4 SUGGESTED QUESTIONS
13.1 INTRODUCTION
Ownership denotes the relation between a person and an object forming the
subject matter of ownership. It consists in a complex of rights all of which are rights in
rem being good against all the world and not merely against specific persons.
Analytically the idea of ownership consists of an innumerable number of claims,
privileges, powers and immunities with regard to the thing owned. Though in certain
situation some of these rights may be absent the normal case of ownership can be
expected to exhibit the following incidents.
First the owner will have a right to possess the thing which he owns. He may not
necessarily have possession for he may have been wrongfully deprived of it or may have
voluntarily divested himself of it. He is till the owner for he retains a reversionary
interest in the right and which is protected by a remedy in the form of an action against
interference damaging his reversionary interest.
Secondly the owner normally has the right to use and enjoy the thing owned: the
right of manage it i.e., the right to decide how it shall be used.
Thirdly the owner has the right to consume, destroy or alienate the thing. The
right to consume, and destroy are liberties. The right to alienate i.e, the right of transfer
is a power.
Fourthly ownership has the characteristic of being indeterminate in duration. The
position of a owner differs from that of a non owner with respect to possession in that
the latter’s interest is subject to be determined at some future set point, whereas the
interest of a owner can endure theoretically for ever. The interest of a lessee or a bailee
comes to an end when the period of hire or the lease is determined; the owner’s interest
is perpetual, being determined; neither by any set point nor the owner’s death.
Fifthly ownership has residuary character. If for example a land owner gives a
lease of his property to A, an easement to B and some other right such as a rights to C,
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his ownership now consists of the residual rights i.e. the rights remaining when all these
lesser rights have been given away.
In this context it will be instructive to deal with the Austinian definition of
ownership which was expounded at the beginning of the nineteenth century. Ownership
according to Austin is a right indefinite in point of user, unrestricted in point of
disposition and unlimited in point of duration over a determinate thing.
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13.2 AUSTINS DEFINITION
Let us analyses Austin’s definition of ownership and see whether it holds good
under modern conditions.
a) Indefinite in point of user: The right of ownership is an absolute right, ie.. a
right which confers absolute power on the owner to do as he pleased with the subject
matter of ownership.
This statement however is not true because rights of ownership may be limited by
adverse rights of encumbrance or by the right of the possessor like lessee. Secondly it
may be restricted by special provisions of law and thirdly it may be restricted by general
duties under which the use of property is restricted to legitimate functions.
b) Unrestricted in point of disposition: According to Austin the right of ownership
is unrestricted i.e. the owner has absolute freedom to dispose of the property as he
pleased. However this right is qualified under the following circumstance 1) a major or a
lunatic can own properties but he cannot alienate them ii) a Hindu joint family can own
property but the kartha can alienate it only for legal necessity.
c) Unlimited in Point of duration: The right of ownership exists forever. This
statement again is qualified by the following circumstances as where a person becomes
insolvent or where the property which is the subject matter or ownership is compulsorily
acquired by the government.
So we find all the three ingredient of Austinian definition of ownership are not
applicable to the modern idea of ownership. In the first place there have been increasing
restrictions both common law and statutory on the abuse of privileges contained in
ownership. Secondly there has been curtailment of the profit element. Legislative control
now exists as to profit, interests and rents. Thirdly, several methods have been devised
for controlling the power of ownership.
Subject matter of ownership: The prime subject matter of ownership consists of
material objects such as land and chattels. But ownership is by no means limited to
things of this category. A man’s wealth may consist not only of his land and goods but of
such thing as interests in the land of others debts due to him, shares in companies,
patents, copyrights etc. Salmond indeed took the view that ownership, in its most
comprehensive signification denotes the relation between a person and any right that is
vested in him. Ownership therefore is incorporeal.
13.3 DIFFERENT KINDS OF OWNERSHIP
a) Sole ownership and Co-ownership: As a general rule a thing is owned by one
person only at a time but a duplicate ownership is perfectly possible. Two or more
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persons may at the same time have ownership of the same thing vested in them. This
may happen in several distinct ways but the simplest and most obvious case is that of
co- ownership. Partners for example are co-owners of the goods which constitutes their
stock in trade. Co- ownership is possible only so far as the law makes provision for
harmonious sign in some way the conflicting claims of the different owners interest. In
the case of co-owners the title of the one is rendered consistent with that of the other by
the existence of reciprocal obligation of restricted use and enjoyment. Co- ownership
may assume different forms by virtue of the different incidents attached to it by law. It
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two chief kinds in English law are distinguished as ownership in common and joint
ownership. The most important difference between these relates to the effect of the death
of one of the co-owners. In ownership in common the right of a dead person descends to
his successors like any other inheritable right. But on the death of one or two joint
owners his ownership dies with him and the survivor becomes the sole owner by virtue
of his rights of survivorship.
b) Fragmentation of ownership in respect of time: So far we have discussed how
two or more persons can be simultaneously owners of the same property by being co-
owners. Much more important is the way in which rights of ownership can be split
between several persons on the temporal plane. For example a land owner wishing to
provide for his sons. A and B may constitute them co-owners of it Alternatively he might
divide the land into two parts giving one part to each as sole owner. A third method
would be to convey the land, to A for life and thereafter to B in free simple. In this, case,
neither son become sole owner of a separate estate or interest in the land ‘A’ has a life
estate which is vested in possession. ‘B’ has a free simple remainder vested not in
possession but in interest. The value of this third method is that it enables the owner to
make provision for both sons while ensuring that land remains intact.
c) Trust and beneficial ownership: A trust is created by any act or event which
separates the trust ownership of any property from the beneficial ownership of it and
vests there in different persons”.
A trust is an instance of duplicate ownership which allows for the separation of
the powers of management and the rights to enjoyment. Trust property is that which is
owned by two person at the same time, the relation between the two owners being such
that one of them is under an obligation to use his ownership for the benefit of the other.
The former is called the trustee and his ownership is trust ownership the latter is called
the beneficiary and his is beneficial ownership.
In legal theory the trustee is not a mere agent but an owner. He is a person to
whom the property of some one else is fictitiously attributed by the law, to the extent
that the rights and powers thus vested in nominal owner shall be used by him on behalf
of the real owner. As between trustee and beneficiary the law revognises the truth of the
matter as between these two the property belongs to the latter and not to the former. But
as between the trustee and third persons the fiction prevails. The trustee is clothed with
the rights of his beneficiary and is so enabled to person or represent him in dealings with
the word at large.
The purpose of trusteeship is to protect the rights and interests of person who for
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any reasons are unable effectively to protect them for themselves. The law vests those
rights and interests for safe custody as it were in some other person who is capable of
guarding them for dealing with them and who is placed under a legal obligation, to use
them for the benefit of him to whom they in truth belong. The chief classes of person in
whose behalf the protection of trusteeship is called for are four in number. In the first
place property may belong to persons who are not yet born and in order that it may be
adequately safeguarded and administered it is commonly vested in the mean time in
trustees who hold and deal with it on account of its unborn owners in the second place
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similar protection required for the property of these who ie., under some incapacity in
respect of administration of it such as infancy, lunacy or absence. Thirdly it is expedient
that property in which large number of persons are interested in common should be
vested in the trustees. Fourthly when persons having conflicting interests in the same
property it is often advisable that the property should be vested in trustees whose power
and duty it is to safeguard the interests of each of those persons against the conflicting
claims of others.
A trust is to be distinguished from two to her relations which resemble it. It is to
be distinguished in the first place from a mere contractual obligation to deal with one’s
property on behalf of some one else. A trust is more that an obligation to use of property
for the benefit of another; it is an obligation to use it for the benefit of another in whom it
is already concurrently vested. The beneficiary has a more than a mere personal right
against his trustee to the performance of the obligations of the trustee. He himself is the
owner of trust property. That which a trustee owns the beneficiary owns also. If the
latter owned nothing but the personal obligation between the trustee and himself these
would be no trust at all .
In the second place, a trust is to be distinguished from the relation in which an
agent stands towards the property which he administers on behalf of his principal. In
agency the property is vested solely in the person on whose behalf the agent acts but in
trusteeship it is vested in the trustee himself not less than in the beneficiary. A trustee
can give a good title to a bonafide purchaser of the legal estate for value without notice of
trust while an agent cannot be so except under one of the exceptions to the principle
Nemo dat quod non habet. An agent must in general carry out the instruction of his
principle while a trustee frequently has considerable discretion so long as he keeps
within the terms of the instrument. A trust always involves property that is the subject
matter of the trust while agency need not necessarily do so. An agent can create direct
obligations between his principal and a third person while the acts of a trustee acting as
such never do this, all he can do is to affect the trust property and cannot impose new
duties upon the beneficiaries towards third persons.
Trust ownership and beneficial ownership are independent of each other in their
destination and disposition. Either of them may be transferred while the other remains
unaffected.
d) Legal and Equitable ownership: Closely connected but not identical with the
distinction between trust and beneficial ownership is that between legal and equitable
ownership. One person may be the legal and another equitable owner of the same thing
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or the same right at the same time legal ownership is that which has its origin in the
rules of common law while equitable ownership is that which proceeds from the rules of
equity divergent from the common law. The courts of common law in England refused to
recognize equitable ownership. But the courts of chancery adopted a different attitude
Here the legal owner was recognized not less than the equitable but the former was
tested as a trustee for the latter. Chancery indicated the prior claims of equity not be
denying the existence of the legal owner but by taking from him by means of a trust the
beneficial enjoyment of his property. The fusion of law and Equity in England in 1873
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has not abolished this distinction; it has simply extended the doctrines of equity to the
courts of common law.
e) Vested and contingent ownership: ownership is vested when the owner’s title is
already perfect: it is contingent when his title is as yet imperfect, but is capable of
becoming perfect on the fulfilment of some condition in the former case, the ownership
is absolute; in the latter it is merely conditions. In the former case the investitive fact
from which he derives the right is complete in all its part; in the latter it is incomplete by
reason of the absence of some necessary element which is nevertheless capable of being
supplied in the future. In the meantime his ownership is contingent and it will not
become vested until the necessary condition is fulfilled. Contingent ownership is based
upon the mere possibility of future acquisition but upon the present existence of an
inchoate or incomplete title.
The conditions on which contingent ownership depends are termed conditions
precedent to distinguish them from another kind known as conditions subsequent. A
condition precedent is one by the fulfillment of which an inchoate title is completed, a
condition subsequent is one on the fulfillment of which a title already completed it
extinguished.
It is to be noticed that ownership subject to a condition subsequent is not
contingent but vested. The condition is attached not to the commencement of vested
ownership but to the continuance of it. Contingent ownership is that which is not yet
vested but may became so in the future; while ownership subject to a condition
subsequent is already vested but may be divested and destroyed in the future. It is
ownership already vested but liable to premature determination by the completion of a
divestitive fact which already present in part.
13.4 SUGGESTED QUESTIONS
1. Trace the process by which individual ownership arose out of communal
ownership.

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LESSON-14

POSSESSION

STRUCTURE
14.1 INTRODUCTION
14.2 THEORIES OF POSSESSION
14.3 CORPOREAL AND INCORPOREAL POSSESSION
14.4 TYPES OF POSSESSION
14.5 POSSESSERY REMEDIES
14.6 SUGGESTED QUESTIONS
14.1 INTRODUCTION
Possession in the sense of physical control of a thing by a person is a fact external
to and independent of laws. When laws came into existence this fact of possession was
taken into account in the sense certain advantages were attached to the possessor. In
Roman law, the chief of these were (a) that possession was prima facie evidence of
ownership (b) possession was basis of certain remedies especially possessory interdicts.
Even a wrongful possessor was protected not only against the world at large but also
against the true owner who disposed him without the due process of law (c) Possession
was an important condition in the acquisition of ownership in various ways (d) In the law
of pledge possession of the thing pledged constituted the creditors security without any
presumption of ownership. These apply substantially in English law as well where there
is also the further advantage that the possessor may exceptionally confer a good little on
another though he has none himself.
If the idea of possession had remained wedded to the fact of physical control
the position would have been simple. Difficulties arose when it became necessary
because of the widening sphere of legal activity to attribute to persons who were not
actually in control some or all of the advantages that were enjoyed by persons actually in
control. Tradition and technically combined to complicate the matter. Traditionally
possession was the basis in law of these advantages. They were attached to a man,
because he had physical control which was synonymous with possession, but soon in
order to give the same benefits to a man who was not in control, possession came to be
ascribed to him without the need for control.
14.2 THEORIES OF POSSESSION
14.2.1 Savigny’s Theory
This theory was first in the field on the topic and hence had as enduring influence
in juristic scholarship. Savingy’s theory of possession foreshadowed the historical
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approach was which Savigny’s name is for ever associated.
Basing his theory mainly on the texts of Paul. A Roman Jurist, maintained that,
possession consisted of two ingredients corpus possession which is effective control and
animus domini, the intention to hold as owner. Since possession involved both these
elements the permanent loss of one or the other brought possession to an end. He could
not escape however from the cases in which possession continued although one was lost
and he sought to explain them by conceding that the temporary loss of one did not
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matter provided it was reproducible at will. Also this theory fails to explain instances
where Roman law had given a non-owner possessory rights. But this was explained by
Savigny as anomalies and mere example of derivative possession.
Savigny’s theory of possession which is an explanation of Roman law has a
number of shortcomings. In the first place Savigny may be held guilty of ignoring the
shift in the meaning of the world possession. Secondly he based his theory exclusively
upon the writings of a single jurist Paul. Thirdly he assumed wrongly corpus and
animus required for acquisition constituted possession itself. Finally Savigny’s theory
also fails to explain the cases of pledge and agents who have possession but did not
intended to hold as owners.
14.2.2 Jhering’s Theory
Jhering approached possession as a sociological jurist. He posed the question
why Roman law protected possession by means of the inderdicts. They were divised to
benefit owners by protecting their holding of property and so placing them in the
advantageous position of defendants in any action as to title. Persons who held property
would in the majority of cases be owners and possession was attributed to such persons
in order to make the interdicts available to them. Accordingly, he concluded that
whenever a person looked like an owner in relation to a thing he had possession of it
unless possession was denied by rules of law based on practical conveniences.
Possession was external of ownership. The animus-element was an intelligent
consciousness of the fact.
Jhering’s theory is much more compatible with facts of Roman law than that of
Savigny’s theory. This theory being flexible in its nature has succeeded in explaining all
those cases which Savigny found difficult to explain. At the same time, Jhering’s theory
may be criticized on the ground it is unduly coloured by the angle of his approach
namely the interdicts. The special reasons of policy that lay behind the interdicts
required that the person in control should be protected. To that extent the idea of
possession for interdictal purposes had a factual basis. But outside that sphere the
factual basis ceases to help. Jherings formula is an appropriate explanation of
interdictal possession. As a more general description it seem needlessly narrow but it is
none the less superior to Savigny’s view.
14.2.3 Salmond’s theory
Salmond began by distinguishing between possession in fact and possession in
law. He treated possession in fact as a convention, which expresses the relation between
a person and a thing. To possess a thing a person must have the thing under his

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physical control. Therefore things not in anyway amenable to human control cannot
form subject matter of possession. A man cannot be said to possess for example the sun,
the moon and the stars.
To state that a person has something under his control is not to assert that the
person concerned should be continuously exercising physical control over it. All that is
necessary is that person concerned should be in such a position to resume actual
control if he wants. Now whether in any given case a person can be said to have
sufficient control whether actual or potential to be in possession of an object will depend
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on a variety of factors. First there is the extent of power over the object itself. Obviously
complete absence of power entails complete lack of possession. Second factor relevant to
the assessment of control is the power of excluding other people. Once actual control is
abandoned the possibility of resumption may well depend on the lack of outside
interference. Salmon also made a distinction between mental and physical aspects of
possession. He considered that possession consisted, of two elements namely corpus
possession and animus possidendi. Corpus possession is according to him comprised of
both the power to use the thing possessed and the existence of grounds for the
expectation that the possessor’s use shall not be interfered with. Animus possidendi on
the other hand consisted of an intent to appropriate to oneself, the exclusive use of the
intent to exclude others, is an adoption of the modified version of Savigny’s animus
domini.
The whole problem in Salmond’s theory is due to his assumption, that corpus and
animus, which are necessary conditions, for the acquisition of possession are possession
itself. This view of Salmond has been modified by Glanvile Williams the learned editor of
the 11th edition of Salmond’s Jurisprudence by maintaining that the possession ones
acquired may continue even though the animus or corpus or even both disappear.
Possession in law: Salmond maintained a distinction between possession in fact
and possession in law. Having dealt with possession in fact let us analyse possession in
law. We have seen that in any society some sort of protection of possession in essential.
This being so the law must provide such protection and thus it can do in two different
ways. First the possessor can be given legal rights such as a right to continue in
possession free from intereference by others. This primary right in rem can be
supported by various sanctioning rights in personam against those who violate the
possessor’s primary right. Secondly the law can protect possession by prescribing
criminal penalties for wrongful interference and for wrongful dispossession. By such
civil and criminal remedies the law can safeguard a man’s defacto possession. Now
whenever such remedies are invoked it will be important to ascertain whether a person
invoking them actually has any possession to be protected. It will be relevant to inquire
whether a plantiff complaining of interference actually possess the object interfered with
or whether a plaintiff alleging a wrongful dispossession was himself formerly in
possession of it. Consequently there will be a need for legal criteria to determine
whether a person is in possession of an object.
A legal system could of course content itself with providing that in law the
existence of possession should depend solely on the criteria of common sense. But when

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a system of law allows possessory rights and remedies to persons not in actual
possession it may do so not by considering them simply as entitled to possession and its
attendant rights but by regarding them as being for legal purpose in possession. Thus
we may find that one who is not actually a possessor is nevertheless considered as such
in the eyes of the law and conversely one who actually has possession may be looked on
by law as non possessor. Accordingly the concept of legal possession parts company still
further from the ordinary notion of possession as law tends to invent instances of
constructive possession i.e. cases where something less than possessing in one person is
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deemed possession in law and where conversely the actual possession of some other part
is reduced to something less than possession.
In this context it will be instructive to deal with cases relating to larceny and
finders of lost goods.
a) Larceny cases: The offence to larceny penalizes the wrongful taking of
possession and in order to quality as wrongful as such taking must be (a) without
posessor’s consent (b) and accompanied by an intent in deprive him permanently of the
object stolen.
I) Reg Vs. Riley: In this case, the accused drove off amongst his own lambs but
without knowing it a lamb belonging to the prosecutor. After he discovered the error he
sold it along with his own lambs. He was convicted of larcency.
II) Gartwright Vs. Green: A bureau was delivered to a carpenter for repair. The
carpenter discovered money in a secret drawer which he appropriated to his own use. It
was held that he committed larceny by feloniously taking the money into his possession.
The carpenter was merely a bailee of the bureau and by the ordinary rules would be held
to have possession of it. It follows from the decision that he did not obtain possession of
money when the obtained possession of the bureau but only at the time when he
discovered it and wrongfully formed the intention to convert it to his own use.
The Findings Cases: In all above these cases, the issues are civil and not criminal
ones, and are between two or more persons claiming to be entitled to the benefits of
possessory enjoyment of a chattel the assumption being that if there is a true owner he
cannot be found.
i. Bridges Vs. Hawkesworth: The plaintiff found a parcel of notes on the floor of
the defendant’s shop. It was held that the plaintiff had acquired a good title to them as
against the defendant as he was the first to acquire possession of the notes. The
defendant had not previously acquired possession because he had not known of the
notes existence until after they were found by the plaintiff.
ii. Elives. V. Brigy Gas Co: The plaintiff a tenant for life in possession had leased
an area of land to the defendant company for the purpose of erecting gas works in the
lease deed all mines and minerals were reserved to the lessor. The lessor retained
certain surpurvisory rights over gas holders and other structures to be built by the
defendant company. In the course of the defendant company’s excavation of the land a
pre historic boat was found some six feet below the surface. It was held that the plaintiff
was entitled to the boat as against the tenant company. The judgement is an

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unsatisfactory one in that it does not make clear which of the several possible grounds
for the decision is the one to be relied upon.
iii) South Staffordshire Water Company Vs. Sharman: Sharman was employed
by the plaintiffs to clean out a pool on land owned and occupied by the plaintiffs. He
found certain gold rings in the mud at the bottom of the pool. It was held that the
plaintiff company was in first possession of the rings, and Sharman therefore had
acquired no possessory title to them as against the plaintiff.
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iv) Ilannah Vs. Pcel: The plaintiff a solider found a brooch in a house where he
was billeted. The house had been requisitioned at the beginning of the II World War and
it maybe supposed both at the time of and for some time before the finding of the brooch
the house was in the possession of the crown. The crown made no claim to the brooch.
The defendant was the owner of the house but he had never gone into physical
occupation of its before it was requisitioned for the army. It was held that the plaintiff
was entitled to the brooch as against the defendant the owner of the house since the
owner of the house had never been in possession of the brooch before it was found. In
the course of the judgement stress was laid on two points.
a) that the brooch was on the surface and was not embedded in the land: and
b) that the owner of the house had never at any stage gone into physical
occupation of it before the brooch was found.
v) Armorie Vs. Delamirie: The plaintiff a chimney sweep’s boy found a jewel and
took it to a goldsmith to find out what it was. The goldsmith refused to return it to him.
It was held that as against the goldsmith, the plaintiff was entitled to the jewel and he
could maintain as action of trover against the defendant goldsmith.
Professor Goodhard has suggested two possible rules after analysis of the
aforesaid decisions. 1) A possessor of land possesses everything attached to or under the
land 2) Things lying loose on the land are not in the possession of the land owner but fall
into the possession of the first finder if he it lawfully on the land.
4) Holme’s theory: According to Holme’s theory we cannot understand the
meaning of the term possession unless we study how possession is first gained.
To gain possession, then a man must stand in a certain physical relation to the
object and to the rest of the world and must have a certain intent. These relations and
this intent are the facts of which we are in search.
This theory tantamounts to the adoption of Savigny’s corpus and animus theory.
5) Pollock’s theory: This theory emphasizes not on the animus element but upon
defacto control.
In common speech a man is said to possess or to be in possession of anything of
which he has the apparent control or from the use of which he has the apparent power
of excluding others”.
14.4 TYPES OF POSSESSION
a) Immediate and mediate possession: In law one person may possess a thing for
and on account of some one else. In such a case, the latter is in possession by the
agency of him who so holds the thing on his behalf. The possession thus held by one
man through another may be termed mediate while that which is acquired or retained
directly or personally may be distinguished as immediate or direct. If I go myself to
purchase a book I acquire direct possession of it; but if I send may servant to buy it for
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me I acquire mediate possession of it through him until he has brought it to me, when
my possession becomes immediate.
Of mediate possession there are three kinds. The first is that which I acquire
through an agent or servant that is to say through some one who holds solely on my
account and claims no interest of his own. In all such cases, though the immediate
possession is in the servant or agent, the mediate possession is in me; for immediate
possession is held on my account.
The second kind of mediate possession is that in which the direct possession is in
one who holds both on my about and on his own but who recognizes my superior right
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to obtain from him the direct possession where never I choose to demand its eg. In the
case of a tromever or a tenant at will, I do not lose possession of a thing because I have
lent it to some one who acknowledges my title to it and is prepared to returns it to me
on demand and who in the meantime holds it and looks it on my behalf.
The third form of mediate possession is the case in which immediate possession
is in a person who claims it for himself until some time has elapsed or some condition
has been fulfilled, but who acknowledge the title of another for whom he holds the thing
and to whom he is prepared to deliver it when his own temporary claim has come to an
end, for example when I lend a chattel to another for a fixed time or deliver it as a pledge
to be returned on the payment of a debt.
Acquisition of possession – The modes of acquisition of possession are two in
number namely taking and delivery. Taking is the acquisition of possession without the
consent of the previous possessor. The thing taken may or may not have been already in
the possession of someone else and in either case the taking of it may be either rightful
or wrongful. Delivery on the other hand, is the acquisition of possession with the consent
and co-operation of the previous possessor. It is of two kinds distinguished as actual and
constructive. Actual delivery is the transfer of immediate possession it is such a physical
dealing with the thing as transfer it from the hands of one person to those of another. It
is of two kinds accordingly as the mediate possession is or not retained by the transferor.
The delivery of a chattel by way of sale is an example of delivery without any reservation
of mediate possession; the delivery of a chattel by way of loan on deposit is an example of
reservation of mediate possession on the transfer of the, mediate. Actual delivery may be
either to the delivery himself or to a servant or agent for him and the delivery of the key
of a warehouse is regarded in law as an actual delivery of the goods in the warehouse,
because it gives access to the goods.
Constructive delivery on the other hand, is one which is not actual and it is of
three kinds. The first is that which the Roman lawyers termed traditio brevi manu but
which has no recognized name in the language of the English law. It consists in the
surrender of the mediate possession of a thing to him who is already in immediate
possession of it. If for example I lend a book to some one and while he retains it. I agree
with him to sell it to him then we have the tradition brevt manu type of delivery. It is not
necessary for him to go through the form of handing it back to me and receiving it a
second time from my hands.
The second form of constructive delivery is that which has been termed as
constitution possessorium. This is the converse of traditio brevi manu. It is the transfer
of mediate possession while the immediate possession remains in the transferor
anything may be effectually delivered by means of an agreement that the possessor of it
shall for the future hold it no longer on his own account but on account of someone else.
No physical dealing with the thing is required because by the mere agreement mediate
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possession is acquired by the transferee though the immediate possession retained by
the transferor and held on others behalf. Therefore if I buy goods from ware houseman
they are delivered to me as soon as he has agreed with me that he will hold them as ware
houseman on my account. The position is exactly the same as if I had first taken actual
delivery of them and then brought them back to the warehouse and deposited there for
safe custody.
The third form of constructive delivery is known as attornment. This is transfer
of mediate possession, while the immediate possession remains outstanding in some
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third person. The mediate possessor of a thing may deliver it by procuring the
immediate possessor to agree with the transferee to hold it for the future on his account
instead of on account of the transferor. Thus if I have goods in the warehouse of ‘A’ and
sell it to ‘B’ I have effectually delivered them to ‘B’ as soon as ‘A’ has agreed with ‘B’ to
hold them for his and no longer for me.
In the case of constructive delivery physical dealing with the thing is not
required, the change in the animus of the persons concerned being adequate in itself.
Corporeal and incorporeal possession: Corporeal possession involves the
continuing exercise of exclusive control over a material object. Incorporeal possession is
the continuing exercise of a claim to anything else. The thing so claimed may be either
the non exclusive use of a material object or some interest or advantage unconnected
with the use of material object of some interest of advantage unconnected with the use of
material objects. Corporeal possession consists less in actual exercise of exclusive
control then in the existence of a legal right to exercise such control. In the case of
incorporeal possession on the contrary the possessor must actually enjoy and exercise
the right in order to possess it. Incorporeal possession is commonly called the possession
of a right and corporeal possession is distinguished from it as the possession of a thing.
The distinction between corporeal and incorporeal possession is clearly analogous to
that between corporeal and incorporeal ownership. Corporeal possession like corporeal
ownership is that of a thing, while incorporeal possession like incorporeal ownership is
that of a right.
14.5 POSSESSORY REMEDIES
In English law possession is a good title of right against any one who cannot show
a better title. A wrongful possessor has the right of an owner with respect of all persons
to except earlier possessors and except the true owner himself. Even a wrongdoer who is
deprived of his possession can recover it from any person whatever simply on the ground
of his possession. Legal remedies thus appointed for the protection of possession even
against ownership are called possessory while those available for the protection of
ownership itself may be distinguished as proprietary. This duplication of remedies
resulting in the provisional protection of possession has its beginning in Roman law. As
to the reasons on which these possessory remedies are based Salmond offers the
following.
a) The evils of violent self help are deemed so serious that it must be discouraged
by taking away all advantages which any one derives from it.
b) A second reason for the institution of possessory remedies is to be found in the
serious imperfections of the early proprietary remedies. The procedure by which an
owner recovered his property was cumbrous, dilatory and inefficient. The part of the
plaintiff in such as action was one of great disadvantage and possession may nine points
of the law. No man therefore could be suffered to procure for himself by violence, the
advantageous position of defendant and to force his adversary by such means to assume
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the dangerous and difficult post of the plaintiff.
14.6 SUGGESTED QUESTIONS
1. Differentiate the types of possession.
2. What are the various theories of possession.
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LESSON-15

LIABILITIES

STRUCTURE
15.1 INTRODUCTION
15.2 THE THEORY OF PENAL LIABILITY
15.3 TWO CLASSES OF WRONGFUL ACTS
15.4 MISTAKE OF LAW
15.5 MISTAKE OF FACT
15.6 VICARIOUS LIABILITY
15.7 ABSOLUTE LIABILITY
15.8 MEASURES OF CRIMINAL LIABILITY
15.9 SUGGESTED QUESTIONS
15.1 INTRODUCTION
Liabilities is the bond of necessity that exists between the wrong doer and the
remedy of the wrong. Where the remedy is a civil one the party wronged has a right to
demand the redress allowed by law and the wrong doers has a duty to comply with this
demand. In the case of a criminal remedy the wrongdoer is under a duty to pay such a
penalty as the law requires through the agency of the courts. So in the case of penal
liability the purpose of law is the punishment of the wrongdoer, but in the case of
remedial liability the sole purpose is the enforcement of the plaintiff a right, the idea of
punishment being wholly irrelevant.
The theory of remedial liability presents little difficulty. It might seem at first
sight that whenever law creates a duty it will enforce the specific enforcement of it.
There are however several cases where for various reasons duties are not specifically
enforced. They may be classified as follows:
1. In the first place there are duties of imperfect obligation duties the breach of
which gives no cause of action and creates no liability at all.
2. Secondly there are many duties which from their very nature cannot be
specifically enforced after having once been broken. When a liabel has already been
published or an assault has already been committed it is too late to compel the
wrongdoer to perform his duty of refraining from such acts. Wrongs of this description
may be termed as transitory once committed they belong to the irrevocable post.
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3. In the third place even when specific enforcement of a duty is possible it may
be more expedient to deal with it solely through the criminal law or through the
creation and enforcement of a substitutive sanctioning duty of pecuniary
compensation.
15.2 THE THEORY OF PENAL LIABILITY
The general conditions of penal liability are indicated with sufficient accuracy
in the legal maxim. Actus non facit reumnisi means sit rea the act alone does not
amount to guilt; it must be accompanied by a guilty mind. That is to say there are two
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conditions to be fulfilled before penal responsibility can rightly be imposed. The one is
the doing of some act by the person to be held liable. A man is to be accounted
responsible only for what he himself does not for what other persons do, or for event
independent of human activity altogether. The other is the mens rea or guilty mind with
which the act is done. It is not enough that a man has done some act which on account
of its mischievous results, the law prohibits; before the law can justly punish the act an
inquiry must be made into the mental attitude of the doer. For although the act may
have been objectively wrongful the mind and will of the doer may have been innocent.
Generally speaking a man is penalized only for those wrongful act which he does
either willfully or recklessly. Then only his the act us accompanied by the means rea.
But this generalization is subject to two qualifications. First the criminal law may
include provisions penalizing mere negligence even though this may result simple from
inadvertence. Secondly the law may creat offences of strict liability, where guilt may exist
without intention, recklessness or even negligence. Where neither mean rea of
inadvertent negligence is present, punishment is generally unjustifiable.
We shall consider separately these conditions of liability analyzing the conception
of an act, means rea in its forms of intention recklessness and negligence.
Acts the term act is not capable of being defined with any great precision Acts
may be contrasted with natural occurrences with thoughts, with omissions or with
involuntary behaviour. And in any rational system of law we shall except to find liability
attaching to the act rather than to its opposite. Omissions on the other hand may attract
liability. An omission consists in not performing an act which is expected of you either
because you normally do it or because you ought to do it and it is the latter type of
omission with which law is concerned. But while omissions incur legal liability where
there is a duty to act, such a duty will in most legal systems be the exception rather
than the rule, for it would be unduly oppressive and restrictive to subject men to the
multiplicity of duties perform positive acts. It is for this reason that rights in rem which
are rights against everyone and correspond to duties not to do something rather than to
duties to confer positive benefit is on the holder of such rights.
The most important distinction for legal purposes however is that between
voluntary and involuntary acts. Examples of the latter are (a) activities outside normal
human control (b) automatic reflexey (c) acts performed by persons suffering from some
abnormal condition.
An attempt to provide an account of what distinguishes voluntary from
involuntary acts is made by the theory which regards an act being divisible into (1) a
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willed muscular contraction (2) its circumstances (3) its consequences. In its true sense
a voluntary acts is said to consist in a willed muscular contraction which incurs more or
legal liability only by virtue of the circumstances in which it is committed of the
consequences which it produces. An involuntary act regarded, therefore as one where
muscular contraction is but willed, its involuntariness consisting precisely, the absence
of this willing.
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This theory creates more difficulties than it solves. In the first place it rests on
dubious psychology. If we consider and examine ordinary examples what are usually
described as acts we shall fall to find evidence, of anything in the nature of prior act of
willing or of desiring either the muscular contraction or its consequences. Secondly this
theory is utterly inappropriate for the problem of omissions. These negative acts can be
either voluntary or involuntary. A person may fail to perform an act required by law
through forgetfulness or by design. In all such cases there is no question of any
mascular contractions and consequently we cannot contend that the difference between
the two kinds of omission is that a muscular contraction was willed in the first case and
unwilled in the second. We can say that involuntary acts are those where the actor
lacks the power in control his actions and involuntary omissions are those where the
actor’s lack of power to control his actions renders him unable to do the act required.
Thirdly the theory imposes on the meaning of the term act a limitation which seems not
less admissible in law than contrary to the common usage of speech. We habitually
include all material and relevant circumstances and consequences under the name of
the act. The act of the murderer is the shocking of this victim, not merely the muscular
contractions by which the result is effected. An act has no natural boundaries. Its limits
must be artificially determined for the purposes in hand for the time being. It is for the
law to determine in each particular case what circumstances and what consequence
shall be counted within the compass of the act with which it is concerned.
15.3 TWO CLASSES OF WRONGFUL ACTS
Every wrong is an act which is mischievous in the eye of the law an act to which
the law attributes harmful consequences. These consequences are of two kinds, being
either actual to merely anticipated. In other words an act may be mischievous in two
ways either in its actual results or in its tendencies. Hence legal wrongs are of two
kinds. The first consists of those in which the act is wrongul only by reason of
accomplished harm which in fact ensures from it. The second consists of those in which
the act is wrongful by reason of its mischievous tendencies as recognized by law
irrespective of the actual issue. In the first case there is no wrong or cause of action
without proof of actual damage in the second cause it is sufficient to prove the act itself
eventhough in the event no harm has followed it.
With respect to this distinction between wrongs which do and those which do
not require proof of actual damage it is to be noted that criminal wrongs commonly
belong to the latter class. Criminal liability is usually sufficiently established by proof of
some act which the law deems dangerous in its tendencies even though the issue is in
fact harmless. As to civil liability no corresponding general principle can be laid down. In
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some cases proof of actual damage is required while in other cases there is no such
necessity and the matter pertains to the detailed exposit of the law rather to legal theory.
Damnum sine injuria: Although all wrongs are in fact or in legal theory
miachievous acts the converse is not true. All damage done is not wrongful. There are
cases in which the law will suffer a man knowingly and wilfuly to inflict harm upon
another and will not hold him accountable for it. Harm of this description is called
damnum sine injuria and falls under two heads. There are in the first instance cases
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where harm done to individual is nevertheless gain to the society at large. The wrongs of
individuals are such only because they are at the same time the wrongs of the whole
community, and so far, as this coincidence is imperfect, the harm done to an individual
is damnum sine injuria. The special result of competition in trade may be rua to many,
but the general result is a gain to the society as a whole. The competitor’s therefore to
each other harm but not injury. The second head of damum sine injuria includes all
those cases in which although real harm is done to the community yet owing to its
triviality or to the difficult of proof or to any other reasons it is considered inexpedient to
attempt its prevention by the law. The mischief is of such a nature that the legal remedy
would be worse than the disease.
Place and time of the act: What locality does the law attribute to acts which fall
partly within one territorial division and partly within other? There are there possible
answers. It may be said that the act is committed in both phases or solely in that in
which it has its commencement, or solely in which it is completed. The law is free to
choose such one of these three alternatives as it thinks fit in the particular case. The last
of them seems to be that which is frequently resorted in most cases.
A second case in which the determination of locality of an act gives rise to
difficulty is that of negative acts. In what place does a man omit to pay a debt or to
perform a contract. The true answer is apparently that a negative act taken place where
the corresponding positive act ought to have taken place. An omission to pay a debt
occurs in the place where the debt is payable.
The position of an act in time is determined by the same consideration as its
position in space. An act which begins today and is completed tomorrow is in truth done
in the spare of time which includes both. But if necessary the law may date it from its
commencements or from its completion or may regard it as continuing through both
periods. For most purposes the date of an act is the date of its completion just as its
place is the place of is completion. A negative act is done at the time at which the
corresponding positive act ought to have been one. The date of non payment of a debt is
the day on which comes payable.
15.4 MISTAKE OF LAW
If it a recognized principle of all the systems that ignorance of law is no excuse for
breaking it. ignorantia jurisneminem excusat. This rule is also expressed in the form of a
legal presumption that everyone know the law. This presumption is irrebuttable. The
reasons for this principle are three in number.
In the first place, the law is in legal theory definite and knowable; It is the duty to
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every man to know that part of it which concerns him; therefore innocent and inevitable
ignorance of law is impossible. In the second place event if ignorance of law is possible in
fact, the evidential difficulties in the way of judicial recognition of such ignorance are in
separable and for the sake of any benefit derivable there from this not advisable to
weaken the administration of justice by making liability dependent on the difficult
condition of requiring knowledge of law. Thirdly it is a public declaration by the state of
its intention to maintain by force those principles of right and wrong which already have
a secure place in the moral consciousness of man. Therefore though a man may be
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ignorant that he is breaking the law he known very well in most cases that he is
breaking the rule of right.
15.5 MISTAKE OF FACT
By reason of ignorance of the law no man will be excused but it is commonly said
that inevitable ignorance of fact is a good defence. However this rule must be qualified by
the fact that mistake of fact is an excuse only within the sphere of criminal law while in
the civil law responsibility is strict in this respect. So far as civil liability is concerned it
is a general principle of our law that he who intentionally or semi intentionally interferes
with the person, property, reputation or any rightful interest of another does so at his
peril and will not be heard to allege that the believed in good faith and on reasonable
grounds in the existence of some circumstance which justified his act.
In the criminal law on the other hand the matter is otherwise and it is here the
contrast between mistake of fact and mistake of law finds its true application. Absolute
criminal responsibility for a mistake of fact is quite exceptional. An instance of it is the
liability of him who abducts a girl under the legal age of consent.
Accident: Unlike mistake, inevitable accident is commonly recognized by our law
as a ground of exemption from liability. Every act which is not done intentionally is done
either accidentally or by mistake. It is done accidentally when the consequences are
unintended. It is done by mistake when the consequences are intended but the actor is
ignorant of some material circumstance.
15.6 VICARIOUS LIABILITY
Normally the person who is liable for a wrong is he who does it. yet modern and
ancient law admit instances of vicarious liability in which one man is made answerable
for the acts of another. Modern civil law recognizes vicarious liability in two chief classes
of case. In the first place masters are responsible for the acts of their servants done in
the course of their employment. In the second place representatives of dead men are
liable for deeds done in the flesh by those whom they represent.
The rational basis of this form of vicarious liability is in the first place evidential.
There are such immense difficulties in the way of proving actual authority that it is
necessary to establish a conclusive presumption of it. Further employers are financially
capable of bearing the burden of civil liability while the servants are not.
The second form of vicarious responsibility is that of living, representing for the
acts of dead men. There is no doubt criminal liability must die with the wrong doer
himself but with respect to penal redress the question is not free from difficulty for in
this form of liability there is a conflict between the requirements of the two competing
principles of punishment and compensation. The former demands the termination of
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liability with the life of the wrongdoer, while the latter derunds its survival. In this
dispute older common law approved the first of those alternatives. The accepted maxim
was Actio personal is moritur cum personal. A man cannot be punished in his grave,
therefore it was held that all actions for penal redress must die with the offender.
However modern opinion rejects this conclusion and by various statutory provisions the
old rule has been completely abrogated. Redress can be had against the estate of the
deceased which has come into the hands of the successors.
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15.7 ABSOLUTE LIABILITY
By absolute liability is meant, liability attributed to a person when damage is
caused to another but not through the intentional act or negligence of the first person.
The description of the rule is Rylands Vs Fletcher which came as an unwelcome surprise
in view of some half a dozen exceptions was rejected by Salmond in its entirety. Pollock
accepted it only under protest. But the rule of strict liability became firmly established
and the present century has seen a surprising elasticity in the doctrine of Ryland’s case.
The courts have inclined to extend the strict liability rule during the last century. Courts
have repeatedly assented the rule by refusing to make a closed list of the substances to
which Ryland’s case applies and have imposed strict liability whenever the plaintiff has
been put to excessive risk. In fact the modern doctrine of strict liability requires of
delicate balancing of interests. Courts are required to consider whether the conduct is
abnormal or usual, whether it is advantageous to the community or purued only for
individual objects. This extension of the doctrine of strict liability has been possible with,
the rise of the welfare state and the insurance theory of liability.
Intention and motive: Intention has been defined as the purpose or design with
which an act is done. It is the for knowledge and desire being the cause of the act in as
much as they fulfil themselves through the operation of the will. An act is intentional if
and so far as it exists in idea before it, exists, in fact, the idea realizing itself in the fact
because of the desire by which it is accompanied. Professor Kenny has also started that
the noun intention is used to denote the state of mind of a man who not only foresees
but also wills the possible consequences of his conduct. Intention thus it has been
stated may not possibly exist without foresight whereas foresight may exist even without
intention. For according to Austin a man may foresee the possible or probable
consequences of his conduct and yet not desire them to occur, nonetheless if he persists
on his course be knowingly runs the risk of bringing about the unwished results.
Motive: The average man would find no difficult in distinguish between motive
and intention but it is not easy to discover a precise criterion. But literally speaking
motive is that which moves person a course of conduct. Salmond treated motive as the
ulterior intention distinct from immediate intention Motive is not usually essential to
liability, but a bad motive can certainly weaken a particular defence such as qualified
privilege and fair comment in defamation. Motive has seldom been considered relevant to
determine civil liability. The law in civil cases is generally presumed to concentrate upon
the act alone and not in motives thereof.
Negligence: Negligence like intention is another significant form of means rea.
Both are mental attitudes which a person is said to have towards the consequence of his
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act. Thus where a person does an act foreseeing and desiring the consequences he is
stated to have an intention to do the act. Negligence on the other hand it not the doing of
an act which one is under a duty to do and causes risk, danger or harm. Such
negligence is wrongful and has often been called gross or culpable negligence and
therefore a condition of penal liability. Negligence is the breach of the duty to take care
which results, in damage. So the question of liability for negligence cannot arise at all
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until it is established that the man who has been negligent owed some duty to the
person who seeks to make him liable for his negligence.
Standard of care is the standard by which one has to determine whether a person
has been guilty of negligence and whether it is the conduct of a prudent man in the
particular situation. The standard of care which law requires from a person is the care
of a reasonable man. However reasonable man’s behaviour is an abstract conception is
any particular event or transaction including in such behaviur obedience to the special
directions which the law gives him for guidance in that connection. The term reasonable
does not indicate any fixed or set of standard in every case, it rather varies in accordance
with circumstances of each case.
English law has recognized only one standard of care and therefore one degree of
negligence. Thus whenever a person under a duty to take care he is bound to take that
much amount of it which is thought reasonable under the circumstances and the
absence of this care is deemed culpable negligence. Roman law on the contrary
recognized two degress of negligence that is to say gross negligence culpa lata and slight
negligence culpa levis.
15.8 MEASURES OF CRIMINAL LIABILITY
Subjective theory negligence: According to this theory, negligence is a state of
mind i.e. a mental attitude. The chief exponent of this theory is Salmond. According to
this negligence is culpable carelessness. It is an attitude of indifference. It essentially
consists in the mental attitude of undue indifference with respect to one’s conduct and
its consequences. Professor Winfield who also supports Salmond’s view maintains that
negligence is merely a state of mind, inadvertence to some legal duty.
Objective theory of negligence: According to Pollock negligence is the contrary of
deligence and no one describes it as a state of mind. This theory postulates that
negligence is an objective fact. It is not an attitude of mind or a form of mens rea at all,
but a particular standard of conduct. It is a breach of duty, of not taking care. So it is a
type of conduct and not a state of mind to determine whether a man is negligent or not
one need not go into the state of mind but to the standard of his conduct. This view
appears to be correct and it also supported by the law of tort where, negligence is
nothing more than a failure to achieve the objective standard of a reasonable man.
Dr. Glanvile Williams tries to effect a reconcilition between the two theories of
negligence. Negligence according to him might be subjective when a particular
consequence is to be contracted with the intended consequence or the negligent
consequence. In this case the relevant question is if the wrongdoer intended
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consequence of he was just indifferent to the consequence. On the other hand, when it is
to be ascertained whether the consequence is accidental or negligent then the relevant
question is whether the wrongdoer exhibited the standard conduct or whether he failed
in that. And if he exhibited standard deligence then the consequence is accidental
otherwise it is negligent. Thus according to Glanville Williams, negligence is both
subjective and objective.
Caustion: The legal treatment of the problem of causation is a very interesting
one. Both in science and philosophy ‘cause’ has proved difficult to define. But the law is
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interested in tracing physical phenomena only in so far as they show the responsibility of
a particular human being. However caustion is a difficult concept and courts agree that
such questions must be decreed on common sense principles rather than on the basis of
abstract legal philosophical theories. Now the legal concept of causation is often said to
be based on the common sense notion of the cause. On this point there observations
must be made first while this notion plays a considerable part in common speech,
common speech itself provides no neat anlaysis of the concept. We can look to common
sense for the usage of the term cause but not for an explanatory description of this
usage. Secondly the legal concept though based on the ordinary notion will diverge from
it on account of the need for lawyers to provide answers to questions for which common
cause is no solution. Thirdly a distinction must be drawn between explanatory and
attributive injuries both of which are involved in causal investigations. If a house is
burnt down the main point of an inquiry may be to discover how this happended; if a
man is found dead the post mortem inquiry serves to investigate what he died of. This
sort of explanatory inquiry is complete when all the facts leading up to the incident have
been discovered, once this enquiry is over the attributive enquiry starts. Here the inquiry
in any given case will be whether the particular instance gave rise to the incident.
Generally speaking the courts engage in both explanatory and attributive enquires. First
evidence may have to be heard to establish how the accident happened, secondly the
court may have to decide in the light of the findings of the fact whether the defendant’s
action or omission should be regarded as the cause of the plaintiffs damage. It is the
second group which constitutes the legal question of causation.
Often a question arises about causal connection when the damage or harm is
the result of person’s act along with other circumstances. Here the legal problem is to
discover the intent for assessing that additional circumstances which prevented the
person’s act from being the cause of the damage and if so whether the additional
circumstances are themselves the cause of damage.
Again there cases where a new act may intervene to snap the chain of causation.
Mens rea: A man is responsible not for his acts in themselves but for his acts
coupled with the mens rea or guilty mind with which he does them (Actus non facit
reumnisi means sit rea) Before imposing punishment the raw must be satisfied of two
things, first that an act has been done which by its harmful teadencies or results is fit to
be repressed by way of penal discipline and secondly that the mental attitude of the doer
towards his deed was such as to render punishment effective as a deterent for the future
and therefore just. The form which means rea assumes will depend on the provisions of
the particular legal system. Criminal liability may require the wrongful act to be done
intentionally or with some further wrongful purpose in mind or it may suffice that it was
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done recklessly; and in each case the mental attitude of the doer is such as to make
punishment effective. If he intentionally choose the wrong the penal discipline will
punished him with a sufficient motive to choose the right instead in the future. If on the
other hand he committed the forbidden act without wrongful intent but yet realizing the
possibility of the harmful result punishment will be an effective inducement to better
conduct in future.
Yet there are other cases in which for sufficient or insufficient reasons law is
content with a lower form of means rea. This is the case with the crimes of negligence. A
person may be held responsible for some crimes if he did not do his best as responsible
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man to avoid the consequences in question. Sometimes however law goes beyond this,
It holds a man responsible for his acts independently altogether of any wrongful state of
mind or culpable negligence. These wrongs are called wrongs of strict liability which we
dealt with earlier.
15.9 THE MEASURE OF CRIMINAL LIABILITY
In determining the appropriate measure of punishment we should take note of
(1`) the motives for the commission of offence (2) the magnitude of the offence and (3) the
character of the offender.
1. The motive of the offence: Other things being equal the greater the temptation
to commit a crime the greater should be the punishment. This is an obvious deduction
from the first principle of criminal liability. This object of punishment is to counteract by
establishment of contrary and artificial motives, the natural motives which lead to crime.
The stronger these natural motives the stronger must be counteractives which the law
supplies.
2. The magnitude of the offence: Other things being equal the greater the offence,
the greater should be its punishment. Punishment should be measured solely by the
profit derived by the offender not by evils, caused to other persons. If two crimes are
equal in point of motive they should be equal in point of punishment. This however is
not so and the reason is two fold. Firstly the greater the mischief of any offence the
greater is the punishment which it is profitable to inflict with the hope preventing it.
secondly a subordinate reason for making punishment vary with the magnitude of the
offence is that in those cases in which different offences often themselves as alternatives
to the offender an inducement is thereby given for the preference of the least serious.
3. The character of the offender: Badness of disposition is a ground for severity of
punishment. If a man’s emotional constitution is such that normal temptation acts
upon him with abnormal force it is for the law to supply in double measure the
counteractive of penal discipline.
Recent trends in criminal law: The development in modern psychiatry which
between the fully normal and the abnormal person recognizes an infinite variety of
shades of disturbances lessening to a varying degree the emotional powers and
capacities of self control rather than intellectual discernment calls for a corresponding
elasticity in the legal approach to the problem of responsibility.
A whole new area of criminal law has developed out of the steadily increasing
responsibilities of the modern state for the maintenance of certain crucial standards
demanded by the proper functioning of a modern industrialized society. These are
embodied in a great variety of statutory regulations. Almost invariably the statutes
provide sanctions for the fulfillment of such obligations mainly in the form of fines.
These fines are mainly imposed by administrative process giving rise to administrative
penal law. It is clear that as a group this type of offence while going under the general
label of animal law is essentially different in character from the criminal offences based
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on individual wrongdoing. What is emerging in this type of public welfare offence is a
kind of negligence without fault as it has developed in the law of tort within the
conceptional frame work of fault liability. It’s purpose is compel business to apply to
stricter standards of inquiry and to control transactions which may endanger public
security. In this context prof. Hall has argued for the creation of specialized courts to
handle public welfare rather than leaving it to the junior criminal courts.
15.9 SUGGESTED QUESTIONS
1. Describe vicarious liability?
2. What is the difference between mistake of law and mistake fact.
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LESSON-16

OBLIGATIONS

STRUCTURE
16.1 INTRODUCTION
16.2 KINDS OF OBLIGATION
16.3 SOURCES OF OBLIGATION
16.4 SUGGESTED QUESTIONS
16.1 INTRODUCTION
Obligation in its popular sense is merely a synonym for duty It’s legal sense is
different. In the first place obligations are merely one class of duties namely those which
are correlatives of rights in personam. In this sense an obligation includes for example
the duty to pay a debt to perform a contract. Secondly the term obligation is in law the
name not merely of the duty but also of the correlative right looked at from the point of
view of the person entitled an obligation is a right, looked at from the view of the person
bound it is a duty. Thirdly all obligation to pertain the sphere of proprietary rights. They
form part of the estate of him who is entitled to them. Rights which relate to a person’s
status are not obligations they are rights in personam. An obligation may therefore be
defined as a proprietary right in personam or a duty which corresponds to such a right.
A technical synonym for obligation is chose in action or thing in action. A chose in action
means a proprietary right in personan.
16.2 KINDS OF OBLIGATION
Solidary Obligation: The normal type of obligation is that in which there is one
creditor and one debtor. However it happens that there are two more creditors entitled
to the same obligations or two or more debtors under the same liability. The case of two
or more creditors gives rise to little difficulty. It is in most respects merely a particular
instance of co-ownership. The case of two or more debtors however is of some
importance and calls for special notice. Examples of it are debts owned by a firm of
partners and the liability of two or more persons who together commit a tort. In all such
cases each debtor is liable for the whole amount due. Two partners R and S owe me
Rs.100. It is not as though ‘R;’ ownes me 590 and S Rs. 50 but it is a single debt. Once
any one of them pays the debt is discharged as regards both. Obligations of this
description are called solidary since each of the debtors is bound in solidam (for the
whole) instead of proparte (not for a proportionate part). A solidary obligation therefore
may be defined as one in which two or more debtors own the something to the same
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Such obligations are there distinct kinds beings either (a) several (b) joint or (c)
joint and several.
Obligations are several when although the thing owed is the same in each case
there are as many distinct obligations and causes of action as there are debtors. Each
debtor is bound to the creditor by a distinct and independent vinculum juris, the only
connection between them being that in each case the subject matter of the obligation is
the same so that performance by one of the debtors necessarily discharges all the others
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also. The liability of a principle debtor and that of his surety, provided the contract of
suretyship is subsequent to or otherwise independent of the creation of the debt so
guaranteed is several in nature. So also the liability of two or more co sureties two
guarantee the same debt independently of each other is several.
Solidary obligations are joint when though there are two or more debtors there is
only debt or other cause of action as well as only one thing owed. The winculum juris is
single though it binds several, debtors to the same creditor. The chief effect of this unity
of the obligation is that all the debtors are discharged by anything which discharges any
one of them. Examples of joint obligation are debts of the partners and all other solidary
obligation ex-constractu which have not been expressly made joint and several by the
agreement of the parties.
Obligations which are joint and several stand halfway between the above two. For
some purposes law treats them as joint and for other purposes as several. For some
purposes there is in the eye of law only one single obligation and cause of action while
for other purposes the law consents to recognize as many distincts obligations and
causes of action as there are debtors. Examples of joint and several obligations are the
liabilities of those who jointly commit a tort.
16.3 SOURCES OF OBLIGATION
16.3.1 Obligation arising from contracts
The first and most important class of obligations consists of these which are
created by contract. We have in the former lessons sufficiently considered the nature of a
contract and we saw therein that a contract is an agreement which creates rights in
personam between the parties to it. Now of rights in personam obligations are the most
numerous and important kind and those of which are not obligations comparatively few
have their source in the agreement of the parties. The law of contract is wholly
comprised within the law of obligations and for practical purposes of legal classification
it may be placed there with sufficient accuracy. The coincidence induced is not logically
complete, a promise of marriage for example, being a contract which falls within the law
of status and not within that of obligations. Neglecting however this small class personal
contracts the general theory of contract is simply a combination of the general theory of
agreement with that of obligation and does not call for any further examination.
16.3.2 Obligations arising froms torts:
The second class of obligation consists of those which may be termed as delictal
or in the language of Roman law obligations exdelicto. By an obligation of this kind is
meant the duty of making pecuniary satisfaction for that species of wrong which is
known in English law as tort. Etymologically this term is merely the French equivalent of
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English wrong tortum being, that which is crooked or twisted just as rectum is that
which is straight. As a technical term of English law tort has a specialized meaning
including merely one particular class of civil wrongs.
A tort may be defined as a civil wrong for which the remedy is an action for
damages and which is not solely the breach of a contract or the breach of trust or other
merely equitable obligation. This definition contains four essential elements there being
four kinds of wrongs excluded by it from the sphere of tort.
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1) A tort is a civil wrong, crimes are wrongs but are not in themselves torts,
though there is nothing to prevent the same act from belonging to both these classes at
once.
2) Even a civil wrong is not a tort unless the appropriate remedy for it is an
action for damages. There are several other forms of civil remedy besides this; for
example injunction specific restitution of property and the payment of liquidated sums of
money by way of penalty or otherwise. Any civil injury which gives rise exclusively to one
of these other forms of remedy stands outside the class of torts. The obstruction of a
highway for example is to be classified as are civil injury in as much as it may give rise
to civil proceedings instituted by the Attorney General for an injunction; but although a
civil injury it is not a tort save in those exceptional instances in which by reason of
special damage suffered by an individual it gives to an action for damages at his suit.
3) No civil wrong is a tort if it is exclusively a breach of contract. The law of
contract stands by itself as a separate department of out legal system, over against the
law of torts and to a large extent liability for breaches of contract and liability for torts
are governed by different principles. If may well happen however that the same act is
both a tort and a breach of contract and this is so in atleast two classes of cases.
a) The first and the simplest of these is that in which a man undertaken by
contract the performances of a duty which lies on him already independently of any
contract. Thus he who refuses to return a borrowed chattel commits both a breach of
contract and also a tort known as conversion; a breach of contract because he promised
expressly or impliedly to return the chattel, but not merely a breach of contract and
therefore also a tort because he would have can equally liable for detaining another
man’s property even if he had made no such contract at all.
b) The second class of cases is one which involves considerable difficulty and the
law on this point cannot yet be said to have been thoroughly developed. In certain
circumstances the breach of a contract made with one person creates liability towards
another person who is not a party to the contract. It is a fundamental principle indeed
that no person can sue on an obligation ex-contract except a party to the contract,
nevertheless it sometimes happens that one person can sue ex-delicto for the breach of a
contract which was not made with him but form the breach he has suffered unlawful
damage. This is to say a man may take upon himself by a contract with. A duty which
does not already or otherwise rest upon him but which has when once been undertaken
he cannot break without doing such damage to ‘B’ a third persons the law deems
actionable. How for damage thus caused to one man by the breach of a duty undertaken
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by contract with another is actionable as tort at the suit of the former is a question to be
determined by the detailed rules of concrete legal system.
4) The fourth class of wrongs which are not torts consists of breaches of trusts or
other equitable obligation. The original reason for their exclusion and separate
classification is the historical fact that the law of trusts and equitable obligations
originated and developed in the court of chancery, and was wholly unknown to those
courts of common law in which the law of torts grew up. Torts, contracts, trusts,
developed separately and the principles of liability in each case are largely different and
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they must be retained as distinct departments of law. Some writers have defined a tort
as the violation of a right in rem giving rise to an obligation to pay damages. Most tort’s
are however violation of rights in rem because most rights in personam are created by
contract. But there are rights in personam which are not contractual and the violation
of which gives rise to an action for damages and which must be classified as tort. Thus
where a duty of care is created by contract the breach of it is in some cases actionable
as tort yet the duty is owned in personam.
16.3.4 Obligation arising from quasi contracts
Both in Roman law and in English law there are certain obligations which are not
in true contractual in the sense of resting on agreement but which the law treats as if
they were. They are contractual in law but not in fact being the subject matter of a
fiction in extension of the sphere of contract to cover obligations which don’t is reality fall
within it. The Roman lawyers called them obligations quasi ex-contracts English Lawyers
call them quasi contracts or implied contracts. However from a quasi contract, we must
distinguish a contract implied in fact. The latter is a true contract though its existence is
only inferred from the conduct of the parties instead of being expressed. Thus when I
enter an omnibus I impliedly yet actually agree to pay the usual fare. A contract implied
by law on the contrary is merely fictitious for the parties to it have not agreed to pay the
usual fare. A contract implied by law on the contrary is merely fictitious for the parties to
it have not agreed at all either expressly or tacitly. In that cases then does the law
recognize the fiction of quasi contract? What classes of obligations are regarded as
contractual in law though they are not so in fact. Let us consider two classes of cases
which include most though not all of the quasi contractual obligations known to English
law.
1) In the first place we may say in general that in the theory of common law all
debts are deemed to be contractual in origion. A debt is an obligation to pay a liquidated
sum of money as opposed to an obligation to pay an unliquidated amount and as
opposed also to all non pecuniary obligations. Most debts are obligations ex-contracts in
truch and in fact but there are many which have a different source. A judgement creates
a dept which is non contractual; so also does the receipt of money paid by mistake or
obtained by fraud. Nevertheless in the eye of law they all fall within the sphere of
contract for the law conclusively presumes that every person who owes a debt has
promised to pay it. Similarly all pecuniary obligations of restitution are in theory
contractual as in the case of money paid by mistake or obtained by fraud or mistake.
2) The second class of quasi contracts includes all those cases in which a person
injured by a tort is allowed by the law to waive the tort and one in contract instead. That
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is to say there are certain obligations which are in truth delictal and not contractual but
which may at the option of the plaintiff be treated as contractual if he so pleases. Thus if
one wrongfully takes away my goods and sells them he is guilty of the tort known as
treapass and his obligation to pay damages for the loss suffered by me is in reality
delictal. Nevertheless I may if I think it is to my interest waive the tort and sue him on a
fictitious contract demanding from him the payment of the money so received by having
rightly sold the goods as my agent and therefore as being indebted to me in respect of
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the price received by him and he will not be permitted to plead his own wrong doing as
bar of any such claim.
The reasons which have induced the law to recongise the fiction of quasi
contractual obligation are various. The chief of them are the following.
1. The traditional classification of the various forms of personal actions as being
based either on contract or on tort. This classification could be rendered exhaustive and
sufficient only by forcing all liquidated pecuniary obligations into the contractual class
regardless of their true nature and origin.
2. The desire to supply theoretical basis for new forms established by judicial
decisions. Here at elsewhere legal fictions are of use in assisting the development of the
law. It is easier for the courts to say that a man is bound to pay because he must be
taken to have so promised than to lay down for the first time the principle that he is
bound to pay whether he was promised or not.
3. The desire of plaintiffs is to obtain the benefit of superior efficiency of
contractual remedies. In more than one respect it was better in the old days of formalism
to sue on contract than on any other ground. The contractual remedy of a assumpsit
was better than the action of debt for it did not allow to the defendant, the resources of
wager of law. It was better than trespass and other delictla remedies for it did not die
with the person of the wrong does but was available against his executors. Therefore,
plaintiffs were allowed to allege fictitious contracts and to sue on them in assumpsit
where in truth their appropriate remedy was debt or some action delicto.
It seems clear that a rational system or law is free to get rid of the conception of
quasi contractual obligation altogether. No useful purpose is served by it at the present
day. It still remains parts of the law of the land and requires recognition accordingly.
16.3.5 Innominate obligation
The foregoing classification of obligation as either contractual delictal or quasi
contractual is not exhaustive for it based on logical scheme of division but proceeds by
simple enumeration only. Consequently it is necessary to recognize final and residuary
class, which we may term as innominate as having on comprehensive and distractive
title. Included in this class are the obligations of trustees towards their beneficiaries a
specie is which would be sufficiently important and distinct to be classed separately as
co-ordinate with the others have been named.
16.4 SUGGESTED QUESTIONS
1. Describe the various kinds of obligation.

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2. What are the sources of obligation.
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LESSON-17

MEANING AND NATURE OF COMPARATIVE LAW

STRUCTURE
17.1 INTRODUCTION
17.2 CLASSIFICATION OF COMPARATIVE LAW
17.3 SUGGESTED QUESTIONS
17.1 INTRODUCTION
Comparative law, in its most simple sense, denotes a method of study and
research, by which laws and legal institutions of two or more countries are compared. It
is concerned with the examination of the contents of different legal systems in their
answer to the solution of various legal problems. It is a technique by which certain ends
can be achieved by looking to the laws of various nations in comparison with one’s own
laws.
Comparative law is not a subject but a method of study. It is regarded as a
process of studying foreign laws in comparison with local laws. Its work is to ascertain
the differences and similarities in the legal rules, principles and institutions of two or
more countries with a view to provide solutions for local problems. It is a discipline to
maintain a social order by the knowledge and experience of other living in a foreign
country.
Each country or State frames its own laws and design its legal institutions in its
own way, according to the nature, character, habit and living conditions of its own
people. The independence of any country cannot be interfered by any of its counterpart;
the framing and enforcing of laws within its boundary is its personal affair. Moreover
every nation of state realizes that it cannot lead an isolated life. It has to depend on
others and for that it has to establish closer contacts with other countries of the world in
economic, social political, educational and cultural sphere. In order to have more
cordinal relations in international sphere it is necessary that the municipal laws of each
country should be framed in agreement with any by taking into account the laws of other
countries of the world. This is a possibility within the means of every nation, which can
be achieved by seeking the help of comparative law.
Comparative law is neither law, nor a particular branch of law; it is only a method
of study and research. It is, in all its essential forms, different from other branches of law
like the law of contract, law of Torts. Criminal law. Hindu law, Muslim law, etc. The term
law in its jurisprudential sense consists of the rules set in or enforced by the State for
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regulating social behaviour of persons. It is not the work of comparative law to lay down
the rules for the conduct and behaviour of human beings. Comparative law, in its most
simple sense, is a method and a technique by which laws and institutions of various
legal systems are compared and in usual practice and common speech the term is used
in this very sense in most of the countries of the world. Considering the misleading
nature of the term, some of the writers have, therefore, preferred to use the term
comparative method in place of comparative law. It would be more logical to speak of
the comparative method. Tradition however is more powerful then logic in determining
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the meaning and use of words, and comparative law remaining the accepted term in
English speeching countries. The German term Rechisvergleichung, and to a lasser
degree the French droit compare (law compared), are more accurate in that they
emphasize the nature of the subject as a process or method.
Thus when we speak, for instance, of the comparative law of marriage this does
not mean that comparative lawyers have devised a new set of rules to govern the
relations between husband and wife; it merely indicates that the marriage laws of several
countries have been subjected to a process of comparison in order to ascertain how far,
and in what respects, they may differ one from another, there is no ‘comparative’ branch
or department of law in the sense in which a lawyer speaks of ‘Family Law’ or ‘Maritime
law’ or the other departments into which law is conventionally divided for the purpose of
indicating the particular type of subject-matter with which each department deals.
Comparative law is not the compilation of factual information regarding a foreign
legal system. It involves the study of the rules of a foreign country by adopting
comparative process. Usually foreign law is studied in comparative law in comparison
with local law. As has been stated earlier the expression. Comparative law denotes a
method of study by which laws and institutions of foreign countries are compared with
their domestic counterparts.
Whether comparative law a science or a method of study
Prominent among those, who regard that comparative law is a science, are Munro
Smith, Lambert, C.K. Allen, Rabel, Comparative law is a science because its aim is to
study the laws of different countries in a systematic form, with the object of ascertaining
the similarities and differences existing therein and to analyse the solutions which other
systems offer for any problem. The approach of comparative law is scientific in the sense
that it comes to general conclusions by tracing like and similar causes, eliminating the
unusual and disturbing factors, which are found in one country and untraceable in
another and make the result different in some points, while similar in others.
On the other hand, there is a team of the writers like, Fenks, Gutteridge, Holland,
Schlesinger, etc. Who have formulated the view that comparative law is a method of
study and not a science. According to these writers the task of comparing foreign laws
with local laws is a technique which cannot be done by everybody. It requires an expert
approach and one who is acquainted with its technique can possibly do this job. The
process of comparison is an art, which does not require any kind of scientific enquiry,
nor can it be classified as a distinct branch of legal learning. These writers do not regard
comparative law as a legal science because it has not to ascertain the principles, notions

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or conception of any legal term. It is only a method to compare the rules of law.
17.2 CLASSIFICATION OF COMPARATIVE LAW
Prof. Lambert classifies comparative law under three heads:
a. Descriptive Comparative law
b. Comparative Legal History
c. Comparative Legislation
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Descriptive comparative law is the inventory of the systems of law of the past and
present as a whole as well as of the individual rules with these systems, established for
the several categories of legal relations. It lays down the difference between the laws of
two or more legal systems.
Comparative legal history seeks to bring out, by the establishment of a universal
history of law, the rhythm or natural laws of the succession of social phenomena, which
direct the evolution of legal institutions.
Comparative Legislation or Comparative jurisprudence tries to describe the
common trunk on which the present national doctrines of law are destined to graft
themselves as a result both of the development of the study of law and of the awakening
of an international legal consciousness.
Gutteridge classifies comparative law under two heads:
i. Descriptive Comparative Law
ii. Applied Comparative Law
Descriptive comparative law is concerned with the description of different legal facts as
found in different countries. It is not in any way concerned with the results of any
comparison. The main function of Descriptive Comparative Law is to state only the
divergences between two or more systems to an individual legal problem. It is unworthy
of being called as a science or legal research.
Applied comparative law is concerned with the examination of the legal facts with
the purpose of obtaining the results. It is worthy of being dignified as a legal research,
because it lays down the conclusions, drawn from the comparison of different legal facts
after making proper analysis and careful study. Applied comparative law is practical in
nature. It is a method to achieve certain aims, such as, law reforms, unification of laws,
etc. Its process is not easy and only the experienced lawyers and experts can employ this
method.
17.3 SUGGESTED QUESTIONS
1. What is meant by comparative Law?
2. What are the various classification of comparative Law.

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LESSON-18

ORIGIN AND DEVELOPMENT OF COMPARATIVE LAW

STRUCTURE
18.1 ORIGIN OF COMPARATIVE LAW
18.2 DEVELOPMENT OF COMPARATIVE LAW
18.3 SUGGESTED QUESTIONS
18.1 ORIGIN OF COMPARATIVE LAW
There is difference of opinion among eminent jurists about the origin of
comparative law. However the contemporary comparative jurists have established that
the study of comparative law, i.e., the process of comparison of law started is Greece,
where from it was subsequently adopted by the Roman for development of their own law.
Throughout the formative period of Roman law. Greek legal ideas and specific legal
rules or institutions, exercised a considerable influence in the development of that part
of the Roman Law which was called just gentium. In order to decide disputes in which
one of the parties was not Roman citizen, it became necessary to establish new rules to
govern their transactions. In this way jus gentum grew empirically from the every day
administration of justice which was carried on by the praetor peregrinus. In fact, law of
jus gentium was formulated to a large extent by the adoption and limitation of existing
mercantile customs which had been consciously under the Greek influence and where
commonly in use among Mediterranean traders.
It is indeed remarkable that it was in England, otherwise regarded as the reputed
home of legal isolationism, that most of the pioneering work in the domain of
comparative law was carried out.
18.2 DEVELOPMENT
The method of comparative research most probably began with thinking that the
rules and principles of law or the legal institutions of another system were in some way
superior and were thus to be followed and than adopted. A number of Greek city states
according to many eminent jurists, followed the law of other states, either wholly or
partially. The Greeks, however, did not consider it an adoption of foreign law but merely
treated it as an adoption of a better form of their own system.
In the words of Guttoridge, “the first mention of comparative law, in the modern
sense of the term, by any English author, seems to have been by Bacon at the beginning
of the seventeenth century”. Bacon was England’s most eminent legal thinker of his age.
He was a man of great idealism with a complete command on legal learning. He
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embraced also civil law, to a considerable extent and stressed the development of a
system of universal justice by which one might test and improve the law of each
country. It was suggested by Bacon that the lawyers of both England and Scotland
should collaborate in the preparation of a digest in which the laws of the two countries
may be collected and compared.
Selden, Grotius, and Montesquieu were the only jurists of this age who used
comparative material on a large scale and for numerous purpose. Bacon was the first
common law lawyer to appreciate the need for and the value of some of general
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jurisprudence, while his contemporary. Selden’s main interest in law was historical. He
had a very good knowledge of other systems of law. His studies covered the history of law
in both eastern and western countries. He stressed the necessity and importance of
comparative research based upon a clear understanding and thorough knowledge of the
history of law in each country and in each age. He said that such a study should be
developed inductively by observation. He investigated the influence of Roman law on
English common law, and applied the principle of comparison in the history of Tithes,
which is one of the important works of his time.
Grotius, with his encyclopaedic knowledge used legal materials from all legal
systems and ages for the purpose of confirmations of his system of natural law. He
believed that the universal validity of his propositions relating to natural law could be
proved not only bha mere deduction from reason, but also by the fact that certain rules
and legal institutions were recognized in all legal systems. He supported his theories by
comparative material. However, in his system of natural law he did not make a
comparative study in the modern sense, nor did he follow the medieval practice of using
foreign materials as binding authorities.
Like Selden, Montesquieu was interested in an objective observation of historical
facts, but he undertook this comparative study of legal institutions not for the sake of
merely discovering historical truths, but for supporting the legislative reforms suggested
by him. The significantly feature of his comparative method is that he used foreign legal
materials not as illustrations but as source of legislative experience as also for the
purpose of inspiring legal science with the breadth of a broad intellectual out look.
In the first quarter of the nineteenth century anatosphere was created in which
studies in foreign and comparative law were regarded as having no value. Nevertheless in
the first half of the same century, interest in foreign and comparative law was beginning
to manifest itself in France as also in Germany. The success of comparative law during
this period is explained by the need of jurists, to return, after a gestation period of
nationalism to universalism, characteristic of all sciences, including the legal science
which had enjoyed it also in the past.
In the second half of the 19th century, however, various nations in Europe and in
Latin America adopted, or planned to adopt, codes which in varying degrees departed
from the model of the Napoleonic codes. Comparative Law, under the modest title of
comparative legislation, appeared at this time.
In 1990, the first International congress of comparative law was field in Paris,
Only jurists of continental Europe participated in it and only Sir Frederic Pollock, an
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eminent English jurist, represented the world of English legal tradition. After much
deliberation, in the end a principal idea emerged from its work, viz., the aim of
comparative law to achieve the creation of a droit commum legislative, the law of the 20 th
century, shared by all civilized humanity.
The universalistic ideal which dominated the though of the members of the
congress of 1900, received a fresh impulse soon after the war of 1914, By 1917, the
Allied powers and their associates had begun work on the unification of their laws.
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Comparative law emerged reinforced rather than weakened. In fact its scope was hence
forth enlarged to include a new world. The European jurists discovered English and
American law, and the jurists of England, in turn, started taking a new interest in
continental law.
A remarkable tendency developed in the lawyers of this age. They started
appreciating the fact that foreign law may be studied for the lessons to be learned from
it. the comparison now was not merely an artifice to enable foreign rules to be
introduced surreptitiously into a national system of law. It was being realized by the
Faculties of Law in the Universities that comparative law i.e., research might go far to
provide a solution of difficult problems of finding subjects for advance study and
research which are not confine to legal history of the philosophical aspect of the law.
A bureau of comparative law was founder in 1968, published an annual Bulletin
of comparative Law for some years. The American Foreign Law Association was establish
in 1925. This Association published a number of works bibliographies on foreign law as
also monogrpa his on comparative topics. A comparative law series is being published
the department of Commerce of the United States America. This publication contains a
review of change introduced in foreign law affecting American commerce.
An Institute of Advance Legal Studies has been founded in the university of
London. Comparative legal studies and its promotion are one of the foremost aims of the
institute. Prof. Wortley is providing guidance for comparative search in the University of
Manchester. This progress shows that a new balance has been established between the
states of the world, which is quite favourable for the development of comparative law.
Today comparative law must take into consideration not only the laws of western
nations, but of the entire world. A most powerful state of the modern world are no longer
the nations of continental Europe sharing a Roman tradition.
The jurist cannot be blid to the new balance of power which has been established
in world politics and economics. The study of law in the contemporary world must
become international in scope and approach. This is necessary from the moment the
countries of the Continent of Europe are called upon or forced to deal with American or
Indian businessmen, or with Soviet or Chinese diplomats who are no longer disposed, as
they may once have been to adopt continental ways of thinking or to recognize the
excellence of the legal science which flowed from Roman law.
The overall situation of comparative research in India is encouraging. There is a
great necessity for research in the Indian Legal System, because foreign jurists have not
done any work of significance in this direction. Endeavours should be made to compare
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Indian law with the legal systems prevailing in the other countries belonging to different
legal families.
18.3 SUGGESTED QUESTIONS
1. Trace out the origin and development of comparative law.
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LESSON-19

VALUE PURPOSE AND USES OF COMPARATIVE LAW

STRUCTURE
19.1 USES OF COMPARATIVE LAW
19.2 DEVELOPMENT OF COMPARATIVE LAW
19.2 SUGGESTED QUESTIONS
19.1 USES OF COMPARATIVE LAW
The utility and purposes of Comparative law, in broad outlines, may be given as
follows:
1. For Better understanding of law of one’s own legal system
The most important and widely accepted objective of comparative law is that it
increases the knowledge of understanding of a person on the law and legal system of his
own country. By comparing the legal rules of his own country with other systems of law
it is possible for him to evaluate the principles of his own country’s legal system and
thereby to understand them clearly.
Lord Macmillan says that it not only adds to one’s knowledge but renders the
system one already knows more intelligible and more varied.
2. Aid to the Legislature and other law reform agencies
Comparative law helps the Legislature and other agencies in the process of
making social and legal reforms in the interest of their people and society by enacting
new laws and modifying and repealing current laws. By the study of foreign laws in
comparison with local laws, the law reformer can know the drawbacks in his legal
system and suggest ways and means of improving them.
The various agencies and institutions concerned with law reform may, by looking
into the laws’ of other countries, suggest to be to the legislature as to what to avoid and
what to include. They can give the benefit of their experience to the legislature and help
it in the framing of new rules of law.
3. Decisions of cases by the Courts of law
Comparative law is useful for the solution of cases which cannot possibly be
decided by a court in the absence of local law. It fills up the gap let by the statute or
judicial precedent by providing an answer to a problem with reference to the established
practices of a foreign country.
Though the rules of law of a foreign country cannot authoritatively be applied, yet

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they can pursuade a judge to form and opinion in order to justify his decision.
4. Help to practicing lawyers
A lawyer, with his busy programmes in his profession, finds little time in the
study of the laws of other countries. But if he does so, he is greatly profited in his
professional career and for winning the case of his client. He will not only be having the
understanding and knowledge of the law of foreign countries which he studies but will
also be getting experience in the technique of applying foreign legal precepts in the work
of interpretation of statutes.
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A lawyer, who is conversant with foreign law can properly conduct a case, where
in a foreign matter or law is involved.
A practicing lawyer, who has sufficient knowledge of foreign, law, can also be
engaged to conduct a case in a foreign country.
The knowledge of foreign law may prove beneficial for him to handle legal
problems of a foreign country and to advise his client accordingly.
In the absence of any local law on a particular point, with his knowledge foreign,
law in a position to quote foreign laws, rulings and references in the cases, which he is
conducting.
His study of different legal systems in a comparative manner can help him to
ascertain the general principles of law, recognized by civilized nations, which is one of
the important sources of international law and which he can put in his arguments in the
cases before international tribunal.
5. Utility in foreign trade and economic relations
The activities of persons in establishing internationals contracts, particularly in
the sphere of mercantile relations, are increasing day by day. With new situations,
arising, now and then, in all the countries of the world, it has become essential for the
businessmen, traders, corporations and merchants doing foreign trade to keep
themselves in touch with the law of the country with which they deal.
Each country has come closer with its counterpart with more and wide trade
dealings in international sphere. The knowledge of foreign commercial law helps every
State and it is people in the establishment and development of foreign trade and
commerce. The business representatives and trade counsels are also exchanged to look
into the interest of their countrymen in the country wherein they are accredited and they
are required to watch the legal changes and developments therein. The comparative
method of study for them is a boon and with its help they can safe guard the interest of
their people and provide them all necessary help in promoting foreign trade and
commerce.
6. Avoidance of territorial conflicts and unification of laws
Comparative law tends to bring uniformity ‘in law and legal institution of the
world. Every nation is independent within the boundary and is free to frame is domestic
laws in its own way. These laws have different and confiscating characteristic forms.
This has adversely effected not only in the relations of states interest. But in foreign
dealings and intercourse of their people. Therefore one of the main aims of comparative
legal research is to avoid conflicts in territoridial legal systems and to give the world a

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unified and single system of law.
The process of unification is not easy. The ground for unification has to be
prepared and each country should be persuaded by amicable means to adopt a measure
which serves the cause of the community of nations. The self interest of each country
should be abandoned and be replaced by greater interests of all the countries of the
world.
19.2 SUGGESTED QUESTIONS
1. What are the various benefits of comparative law.
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LESSON-20

WEAKNESS OF COMPARATIVE LAW

STRUCTURE
20.1 INTRODUCTION
20.2 OSTENSIBLE WEAKNESS OF COMPARATIVE LAW
20.3 SUGGESTED QUESTIONS
20.1 INTRODUCTION
Comparative law renders valuable services in the sphere of legal studies, law
reforms, decisions of domestic problems, international understanding and relations.
Comparative law has hazards of its own-certain inherent drawbacks, obstacles,
disqualifications and problems.
The comparison of laws legal institutions of different countries is indeed a difficult
jobs. It requires special kind of aptitude, training and qualifications. Only those who can
collect materials of both domestic as well as foreign laws under investigation and go deep
into their problems, with a bent of mind and interest to do so are in a possible position
to do the work of comparison.
The structure of comparative law is built on the matters of law and legal
institutions of the countries to be compared with. It is, therefore, essential for a
comparative scholar to have the information and knowledge of the sources from where
he can procure those rules in detailed form. It may not be difficult for him to obtain the
rules of his domestic law but the collection of foreign rules in authoritative form in his
own country may be problem for him, particularly the foreign rules of judicial
precedents, customs and opinions of the experts. He may also not be in a position to
visit the foreign country in question to collect the materials for his investigations and
research work. In certain matters he may require guidance of an expert in foreign law,
who is seldom available in his own country, and even if he finds any such person should
be careful and cautious in basing his opinion on advice of that person.
20.2 OSTENSIBLE WEAKNESS OF COMPARATIVE LAW
The ostnesible weakness of comparative law is that it does not provide any
standardized technique in its process. The scope and the field to activity of comparative
law are too wide to cover many aspects, methodology and problems when two or more
comparative scholars are required to compare the same legal systems, their technique
approach different. If they are to solve a particular domestic problem with the help of a
foreign law, the conclusions drawn by them may vary seriously from each other.
Comparative law has an important vice to give misleading results because of
varied social, economic, political and legal conditions in the countries under study. The
comparative lawyer cannot always look into the internal situation of a foreign country.
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His task is only to compare the contents of law, as available. It is not possible for him to
see from a distance the background of the rules of law in a foreign country under
comparison. The difficulties of comparative process, i.e., non-availability of comparative
materials, lack of experts knowledge and handling, language problems, etc. stand in
his way and it goes without saying that unless he is very cautions in his approach, he
cannot avail the use and benefit of comparative law.
20.3 SUGGESTED QUESTIONS
1. What is the weakness of comparative law?
2. What is meant by ostensible weakness of comparative law?
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MODEL QUESTION
B.G.L. DEGREE EXAMINATION
FIRST YEAR
PAPER – I

110. LEGAL THEORY (JURISPRUDENCE)

AND COMPARATIVE LAW

May Time : 3 hours

Maximum : 100 Marks
Answer any SIX questions
All questions carry equal marks.

1. Explain the difference between Austin’s and Salmand’s theory of Sovereignty.

2. State briefly the various sources of law.
3. Trace out the contributions made by analytical and historical schools of
jurisprudence.
4. Trace out the origin and development of comparative law.
5. Define negligence and discuss the two celebrated theories of negligence.
6. Define property and discuss the different modes of acquiring property.
7. Define title. What are the various modes of acquiring it?
8. What is the purpose of administration of criminal justice? Write a note on
abolition of capital punishment.
9. Write short notes on any TWO of the following.
a. Mistake of fact
b. Martial law
c. Strict liability
d. Adjective law.

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