Module 1

Jurisprudence
The study of jurisprudence began with the Romans.
The term Jurisprudence is derived from Latin word
'Jurisprudentia' which means either "knowledge of law" or
"skill of law". The word "juris" means law and “prudentia”
mean knowledge, science or skill. Jurisprudence covers
the whole body of legal principles in the world. It is
mainly concerned with the rules of external conduct
which people are compelled to obey.
Definitions of Jurisprudence
Ulpian, a Roman Jurist, defines jurisprudence as " the
knowledge of things divine and human, the science of
just and unjust."
John Austin defines 'jurisprudence' as "the philosophy of
positive law." He opines that the appropriate subject to
jurisprudence is a positive law i.e. law as it is (existing
law).
Sir Thomas Erskine Holland defines, Jurisprudence as
"the formal science of positive law'.
Salmond defines Jurisprudence as "the science of the first
principle of the civil law."
Keeton defines jurisprudence as "the study and
systematic arrangement of the general principles of law.
Roscoe Pound defines law as “the science of law, using
the term law in the juridical sense, as denoting the body
of principles recognised or enforced by public and
regular tribunals in the administration of justice".
According to Dr K. C. Allen, Jurisprudence is the
scientific synthesis of all the essential principles of law.
G.W. Paton says Jurisprudence is a particular method of
study, not the law of one country, but of the general
notion of law itself.
Julius Stone terms "Jurisprudence is the lawyer's
extraversion. It is the lawyer's examination of the
precepts, ideals and techniques of the law in the light
derived from present knowledge in disciplines other than
the law.”
Various Schools of Jurisprudence

1. Natural School of Jurisprudence

Natural law thinking has played a wide role in the

fields of ethics, politics and law since ancient times.
Jurists of different ages gave different meanings to the
term natural law. Natural law can be broadly divided
into four classes: Ancient theory, Medieval theory,
Doctrine of Renaissance and Modern theory

Ancient Theories

Greek

Heraclitus: Heraclitus was the primary Greek logician

who pointed at the three principles of Law of Nature, (1)
destiny, (2) order and (3) reason. He expressed that
nature is definitely not a scattered heap of things. As per
him, ‘reason’ is one of the basic components of Natural
Law.
Aristotle: According to Aristotle, man is a part of nature
in two means. Firstly, he is a part of the creatures of
God, secondly, he possesses awareness and reason by
which he can form his will. By this reason, man can
determine the eternal norm of justice. The man’s reason
being the part of nature, the law discovered by reason is
called ‘natural justice’. The Law should be reformed or
amended rather than being broken.
Socrates: Socrates believed that just like physical law,
there exists natural law. In his concept of natural law,
man has his own insight, which tells him about those
things, whether good or bad. It is according to that
insight that man is able to develop moral values in
himself. The only way to judge the basis of law is the
“insight of man”. Through his doctrine, Socrates
wanted to ensure peace and stability in the region.

Rome

Stoics: Stoics developed his theory of natural law

based on Aristotle’s theory but made some important
changes and made it more ethical. According to
Stocis, the world operates because of reason. Man’s
reason is also a part of this world. So, when he lives
according to reason, he lives according to nature. One
of the duties of man is to follow the law of nature.

The Stoic law of nature is binding on all and the

positive law must conform to the natural law. Stoics
theory on natural law had a great influence on jurists
during the republican period.

Natural law helped the Roman people transform their

rigid lives into a cosmopolitan one. Sometimes the
Courts of Rome also applied the principle of natural
law to deal with matters involving foreigners.

Roman Jurists classified law of Rome into three broad

categories: jus civile, jus gentium and jus naturale .

Roman civil law or ‘jus civile’ was only for Roman

citizens. Roman magistrates applied rules which were
common with foreign law to foreign citizens also. The
body of law which developed in this way was called
 ‘jus gentium’ and it became part of Roman law. It
represented well-meaning and universal legal
principles and, therefore, conformed to ‘natural law’.

Later, ‘jus civile’ and ‘jus gentium’ became one when

Roman citizenship was extended to all except a few.
But even then, there was a concept of natural law (jus
naturale) applicable to sections like slaves.

Medieval Theories
Thomas Aquinas: Catholic philosophers and
theologians moved away from orthodox
interpretations of natural law and gave a more logical
and systematic theory of natural law. Thomas Aquinas
defined the law as obedience to the cause of the
general good that he did, which the community cared
for and promulgated. He divided the law into four
stages.

1) Law of God
2) Natural law
3) Divine law
4) Human laws
According to Aquinas positive law must conform to
natural law, positive law is valid only to the extent that
it is compatible with natural law. He completely mixed
Aristotle’s theory with that of Christian faith and
created a very elastic and logical theory of natural law.
He pleaded for the establishment of the Church’s
authority over the state, according to him, even the
sovereign has limited powers.

He identified natural law with reason, sanctified social

and political organization, and worked hard to
preserve social stability. Catholic modern jurists have
built on Aquinas’s doctrine but modified his doctrine
according to changing needs and circumstances.

Renaissance Theories: This period saw major changes

in all aspects of knowledge, marked by the emergence
of new ideas, new branches of knowledge and
discoveries of science. Secondly, due to development
in the field of commerce, new classes emerged which
wanted more protection from the states. This gave rise
to the concept of nationalism. All these factors
combined to overthrow the dominance of the church.

New theories supporting the sovereignty of the state

began to emerge. The reason was the foundation of all
these principles. The natural law principles of this era
also had certain characteristics. This theory proceeds
with the belief that a social contract is the basis of
society.

2. Philosophical School of Jurisprudence

The philosophical or moral school concerns itself mainly

with the connection of law to specific thoughts which law
is intended to accomplish. It tries to explore the reasons
for which a particular law has been established. Grotius,
Locke and Rousseau contributed greatly to this school of
thought.

Grotius: A Dutch national, Grotius is considered to be the

father of International Law. He was the first one to detach
law from religion. According to him, natural laws are
definitive in nature with no requirement of the confidence
of God, making it a matter more focused on lawyers and
thinkers than the Divine. He believed that natural law and
its ethical morals connect to all sane and social creature,
Christian or non-Christian alike.
In his work ‘The Law of War and Peace’, he stated that
natural law stemmed from not only morality but also the
very social nature of man; with both being based on the
concept of righteousness. The ruler, according to his
Social Contract Theory, must follow the natural laws.
However, if he abuses his power, his subjects have no
right to revolt against him – thus, making their political
obligation towards the ruler unconditional. He gave five
chief principles that defined natural law:
 • To abstain from things that belong to
another individual;
• To restore any goods of another we may
have with us;
• To fulfil promises and pacts made to
others;
• To repay damages to others caused by
our fault;
• To punish those who deserve it.

Hegel: Hegel said that “the state and law both are
developmental.” As per him, the different appearances
of social life, including law are the result of a
developmental, unique procedure. This procedure
includes rationalistic structure, uncovering itself in theory,
absolute opposite and blend.

Immanuel Kant: The philosophy of Immanuel Kant is

sometimes called the “Copernican revolution of
philosophy” . Kant brought together rationalism and
empiricism
Social Contract Theory determines a state of nature.
This state of nature is the condition before entering
into a contract. Thomas Hobbes, John Locke and
Rousseau are main proponents of social contract
theory.

Thomas Hobbes: According to him, man lived in a

chaotic state. It was solitary, dirty, cruel and
short. Under the prevailing conditions, the people
entered into a contract, under which they handed over
all their rights to one person, to relieve their suffering.
He, therefore, advises the sovereign that he must
command with natural law.

John Locke: Locke stood for individual liberty and

advocated that the powers of the sovereign are not
unlimited. According to Locke, the person has the
right to protest against the sovereign if he is unable to
protect the rights of the individual. Then individuals
also have the right to overthrow the current
government. According to him, a person’s rights to
freedom, property, and life are basic natural rights and
the sovereign must realize these rights and make a
decision, taking into account the rights described
above.

Rousseau’s General Will Theory: Under Rousseau,

natural law and social contract received a new
interpretation. For him, a social contract is a
hypothetical construction of reason. Before the social
contract, man lived a happy life, there was equality
among men. According to Rousseau, humans entered
into a contract for the protection of rights of equality
and freedom, they delegated their rights not to one
person, but to the whole community, which Rousseau
states as common will.

According to Rousseau, it is the duty of a person to

obey the general will because in this way he is
following his own will. The government and laws
made must conform itself with the general will and if
they are not able to so that they could be overthrown,
in short, Rousseau stood for the interest of the
community, rather than the interest of the individual,
for his natural law theory Stood for equality and
freedom of men.

3. Analytical School of Jurisprudence (Positive School)

Analytical School of Jurisprudence is based on the legal

maxim, ‘Ubi civitas ibi lex’ which signifies ‘where there is
State, there will not be anarchy’ and therefore, the
underlying principle of this school is the relation of law
with that of a State. The essential concept of the
Analytical school of jurisprudence is to deal with the law
as it already exists. Law, according to the Analytical
school, is the sovereign’s direction. As a result, analytical
schools are also known as imperative schools.

In the nineteenth century, the analytical school rose to

prominence. It claims that morals are not objective but
the law must be objective. If morals are included in the
concept of law, the law will no longer be objective. The
analytical school takes a ‘positive’ perspective on societal
legal issues. The positivists’ main concern is the law that
is actually found (positum), rather than the ideal law.
This school, which is the most popular in England,
establishes the fundamental elements that make up the
fabric of law, such as state sovereignty and the
administration of justice.

While Bentham, Austin, Holland, Salmodn and

Hart are major proponents of this school. Austin is
considered as a father of the Analytical school.

Bentham’s Theory of Utilitarianism: Bentham is

popularly known for his theory of utilitarianism which

has more emphasis on individualism. According to him

the main function of law is to make free the individual

from the bondage and restraint upon his freedom. He

adherence the principle of ‘laissez-faire’, which meant

minimum interferences of the state in the economic

activities of the individuals.

Bentham says that utility is that which produces benefit,

advantage, pleasure, good or happiness. His theory
introduced two premises, the first one is the belief in
consequentialism, and it means morality is concerned
with the effects of actions on the happiness of the
individuals. The second one is the maximization of
happiness. He says in his book The Principle of Morals
and Legislation that an action is a right action when it
creates or its consequence is the greatest happiness of the
greatest number. The “greatest happiness principle”, or
the principle of utility, build the cornerstone of all
Bentham’s thought.

According to Bentham, Analytical jurisprudence or

Expository is concerned with law as it as, without taking
consideration of any moral or immoral characters.
Censorial jurisprudence on the other hand is said to be
science of legislation, meaning what the law ought to be.

Imperative Theory or Command Theory

Austin defined law as the General Command of the State
or the Sovereign. The emphasis on the command makes
the theory Imperative. Command is an order given by a
superior authority to do some thing or forbid it to do
something. If the ‘consequences’ is not attached, the
citizens will not necessarily obey the law and ultimately
the Sovereign. Therefore, the key elements of command
become, the duty of the citizens to obey, the right of the
citizens in case of infringement and sanctions which are
the ‘consequences’ faced by the infringer.
Sanctions can be defined as fixed consequences,
‘expectation of certain events’, authorised by the
sovereign, which the person going against the law will
face. Through Sanctions, an element of coerciveness
comes into play which is authorised by the state.
Therefore, Sanctions is a way to implement, enforce and
protect the command of the Sovereign.
Austin narrowed down the concept of Sanctions in his
theory and did not consider rewards i.e. Positive
Sanctions as Sanctions. This can be understood by the
example of paying taxes. The citizens have to pay taxes
and if they do not pay the taxes, they know that they can
face the consequences of losing their property and is
bound to pay certain penalties. The fear of losing the
property and paying the huge penalties make the citizens
pay the taxes.
The Command and Sanctions are made through
Sovereign, but what all components makes a Sovereign.
Austin define Sovereign as, “determinate human
superior, not in the habit of obedience to a like superior,
receives habitual obedience from the bulk of the society,
that determinate superior is the sovereign in that
society.”
According to Austin, the Sovereign should be the
superior authority in the society or legal system, so that
authority is in a position to make the people obey the
commands with the use of power vested in them. Austin
speaks about the independence of the Sovereign from
the external factors like, the political societies. It should
be free from all the control present in the society. If
there is any authority or any other external factors to
which the Sovereign has to comply, that will not be
regarded as Sovereign. procedure.
This theory was highly criticised by all the school of all
thoughts. Another thinker of analytical school HLA
Hart. was a major critique of Austanian’s command
theory. The first criticism was about the generality of the
Command theory. Austin discussed the concept of
command enforced by sanctions in a general way, which
was applicable to only some laws like Criminal Law. But
this generality did not support the other laws. For
instance, in Contract Law which is a right in personam,
therefore the remedies in this category of law cannot be
threat of sanctions
Further Hart rejects that the concept of ‘habit of. The
leaders, or the people in Sovereign will have to change at
certain point of time. He further rejected the theory of
Sovereignty, on the basis that it has no controlling power.
Further, assertion made by Austin that judicial decisions
are not laws but tacit commands of Sovereign, are not
justifiable. Judicial precedents play an important role in
the legal system. It corrects any arbitrariness, checks on
the excessive use of power by any authority and protects
the citizens,

Pure Theory of Law

Hans Kelsen firstly proposed Pure Theory of Law in

1934 and expanded it in 1960. Kelson’s pure theory of
law is also known as Normative theory. It is called the
pure theory of law by Hans Kelsen because it talks about
pure law and it excludes from law the other factor
affecting the definition of law like morality, ethics,
economics, sociology etc.

Kelsen believes the concept that the law should be pure

from any investigation such as sociological, political,
historical, logical, etc. According to him, “the law will
stand on its own”.

Grundnorm: Kelsen’s pure theory of law features a

pyramidal hierarchy based on the grundnorm as the
foundational norm. Grundnorm is a German term that
means “fundamental norm.” He defines it as “the
assumed ultimate rule by which the norms of this order
are constituted and annulled, and their validity is
received or lost.” The grundnorm establishes the content
and verifies additional norms that are derived from it.

According to Kelsen, unlike some of the other norms,

the basic norm may draw its legitimacy from grundnorm.
The Grundnorm is the beginning point for a legal
system, and it is from this point that a legal system grows
more complex and specialised as it evolves. The
grundnorm, which is self-contained, is at the summit of
the pyramid. In a hierarchical structure, subordinate
standards are governed by norms that are superior to
them. The system of norms progresses from downwards
to upwards and finally closes at grundnorm.
Jurisprudence is the knowledge of norms. Law is a
normative science. A norm of law is simply a preposition
in hypothetical from. A norm of law has a distinct
feature. They are different from Science norm.

Criticism: Grundnorms are now vague And confusing.

Purity of nerve cannot be maintained

Natural law is ignored

Supremacy of international law

No practical significance

HLA Hart’s Legal Positivism

Legal positivism is that school of jurisprudence According
to which the legitimate sources of law are only the ones
which are in written form. According to John Austin laws
is the command of the sovereign which is backed by
sanction. However, HLA Hart condemned this view.

According to him, rules are independent and constructive.

Rules more concerned with what is to be done and hence,
he drew a distinction between primary rules and the
secondary rules.

Primary Rules and Secondary Rules: According to him,

laws are the rules which forbid individuals to perform
various kinds of actions or impose various restrictions or
obligations on the individuals. The Primary rules are
those rules which impose an absolute obligation on an
individual or abstain him from doing particular action; it
is instrumental for the generation of duties and
obligations for an individual.

According to Hart, these primary rules govern the

behavioural strand of an individual in society as well as
the conduct of an individual. They are obligatory in
nature. For example, the rules of criminal law exist for
the punishment of crimes such as theft, robbery and
murder. The rule of torts forbids defamation. Similarly,
the rule of environmental law condemns the pollution of
water bodies and the environment.

The primary rules found to be insufficient for catering to

the needs of the dynamic society the time. Hence this led
to the evolution of secondary rules. Secondary rules are
the foundational rules of every just society. The secondary
rules are “power conferring” rules in nature. There are
three types of secondary rules: "rules of recognition", "rules
of change" and "rules of adjudication".

According to the rule of recognition, the recognition of

rules is not contingent on the command of the sovereign.
However, according to the rule of recognition, it should
be recognised by the Legislature or the Judiciary.
However, the Constitution is placed at the apex position
in the hierarchy of rules of recognition. Judicial
Precedents and Legislative enactments are the other
aspects which exist in the hierarchy of rules of recognition.
The rule of change confers the authority on the Judiciary
by virtue of “amendments” to bring about change in the
laws corresponding with the dynamic nature of the society.
Eg: Constitutional amendment provisions in the Indian
Constitution.

The rule of adjudication confers the power to the

judiciary. The judges are vested with the power to
adjudicate the matters of dispute. These rule of
adjudication also contains the significant definitions of
“court, jurisdiction, judge, jurisdiction and
judgment.” Eg: Article 32 of the Indian Constitution.

Hart – Fuller Debate

Law and morality are often used overlapping. Law is
defined as “a rule of conduct or action prescribed or
enforced by controlling authority. Morality means “the
quality of being right, honest or acceptable”. Law creates
an obligation as the disobedience of law would lead to
punishment or fines. Morality is more of a social
obligation dictated by the societal understanding of right
and wrong. Morality is for the good conduct of men for
themselves and other fellow beings. Laws on the other
hand are for the smooth functioning of the society itself.
Hart - Fuller debate revolves around the philosophy of
law and morality.
H.L.A Hart espouses what is known as legal positivism.
Hart views the law in terms of ‘what is’. While Lon L
Fuller, belonging to the Natural School of Jurisprudence,
considers morality as ‘what ought to be’.
Hart considered legal system as free-standing. Fuller was
of the view that law should serve a purpose. Hart’s work
was to make the legal positivism more refined version
from that of Austin’s command theory. Fuller had
completely rejected the view point of Hart and was not at
all convinced by the argument put forward by him.
Law as Command: Hart defends Austin and Bentham
who first promulgated that “law as it is” and not “what
ought to be”. Fuller explains that the fidelity of law as the
loyalty which is owed by the human made laws. They
command our respect not because they have been made
by some authority but because they should “represent
human achievements”.
The Problem of Penumbra: Penumbra means a
looming problem. The problem of penumbra arises
when the words do not clearly define the meaning of the
law or when established in law the meaning seems
obsolete. In such situation the judges are free to interpret
the meaning of the law. Herein Fuller accuses Professor
Hart for “following the tradition of his predecessors and
treating morals as extralegal entity.” According to him
when the judges interpret a law they are by means of
interpreting going for ‘what ought to be’ than ‘what it is’.
This problem of penumbra is illustrated by an example
which has been used by Hart himself. As per the law a
vehicle is not permitted into a park. Now a bicycle is
parked in the park. A police officer left a ticket for
parking the bicycle in the park. When this matter went to
the court the question before the judge was to consider
bicycle as a vehicle or not. The purpose of this particular
law was to keep motorized vehicle outside of the park to
keep the pollution in check. The judge understands the
purpose of the law and therefore “bicycle ought not to be
included in the definition of vehicle”. Fuller portrayed
this as the perfect example of ‘what ought to be’ by
reaching out to some external factor. But Hart claimed
that this conclusion has been inferred from the total
“categorisation and harmonisation” of the legal system.
The Morally Bad Law: This is the third component of
the debate in which directly questioned morality and the
law. During the time of Hitler, it was a criminal offence
to insult the Fuehrer. A wife informed the authorities
that her husband was using derogatory against Hitler, so
the police came and took him away. When the war was
over, she was tried and convicted along with many
others. She was not affiliated to the Nazi party or to the
Stormtroopers. She was just a civilian following the law in
place at that time. This was called the informer’s case.
The lady was convicted but the judge who tried and
sentenced her husband was let go when the case went
into appeal.
For the positivist the lady was simply following the law
and the law is what it is. She simply was obedient citizen
to a command. But the naturalist think that she “ought
not to have” obeyed such a law which was not morally or
consciously right. Her defense and claim for protection
for following the law which was “contrary to all sense of
justice” was not accepted in the court.
Fuller’s Eight Principles: Fuller recommended some
principle for the laws to be accepted.
1. The laws made should be “expounded” or
explanatory.
2. Law should be promulgated or publicized.
3. Laws should be applied only in “prospective” manner.
4. Laws should be clear and comprehensible in all
manner and sense.
5. Laws should not be contradictory in nature.
6. Laws should not be impossible to obey.
7. Laws should not be made in such manner that they
need to be changed frequently.
8. Laws should be administered and stated as it is.

4. Historical School of Jurisprudence

Historical School of Jurisprudence describes the origin

of law. This school argues that the law was found not
made. The main source of law is Kings Judgment,
Customs and habits. Jurists like Montesquieu, Savigny,
Sir Henry Maine, and Georg Friedrich Puchta are the
supporter of the Historical School of Jurisprudence.
Savigny is regarded as a father of the Historical school.

As per Sir Henry Maine, Montesquieu was the very first

jurist to accept the historical school approach to
comprehending the concept of law. Montesquieu was a
French judicial, thinker, diplomat, and scholar who
studied and interpreted the rules of numerous civilizations
and came to the conclusion that “law is the invention of
the climate, local conditions, accident, or imposture.” He
went on to say that the law, like society, should be
dynamic, changing in response to the civilization’s needs
and demands. He mentioned these ideas in the book,
“The Spirit of Laws.”

Savigny’s Volksgeist Theory: Volksgeist theory means

“national character”. According to Savignty’s Volksgesit
theory, the law is the product of general consciousness of
the people or will.

According to Savigny, the law is the result of the

historical process that has revealed the customary laws.
As a result, the law is a duplicate of national spirit rather
than a product of established legislation. Savigny believes
that the legal system is a reflection of national
consciousness, which he refers to as volkgeist.

The concept of Volksgeist was served as a warning

against the hasty legislation and introduce the
revolutionary abstract ideas on the legal system. Unless
they support the general will of the people.

5. Sociological School of Jurisprudence

August Comte was the first writer to use the term
‘sociology’ which he described as a positive science of
social facts. The sociological approach to the study of law
is the most important characteristic of our age. Jurists
belonging to this school of thought are concerned more
with the working of law rather than its abstract content.
The Sociological school considers law as a social
phenomenon and examines law in relation to society. It
takes a fundamental functional view of law. “The main
concern of sociological jurists is to study the effect of law
and society on each other. They treat law as an
instrument of social progress.
Many factors led to the establishment of sociological.
The 19th century witnessed a shift of emphasis from the
individual to the society. This happened as a result of the
shocking consequences resulting from the Laissez faire
doctrine.
The Historical School which was a reaction to the
intense individualism of the 19th century by its emphasis
on the Volkgeist spirit of the people – indicated that law
and the social environment in which it develops are
intimately related. This idea inspired the jurists of
sociological school.
Auguste Comte (Scientific Positivism)
Compte was the first to use the term ‘Sociology’. His
method is called Scientific Positivism. He pleaded for
the application of scientific methods to the science of
sociology. According to him: “Society is like an organism
and it can progress when it is guided by scientific
principles. These principles should be formulated by
observation and experience of facts excluding all
metaphysical and other alike considerations.”
Herbert Spencer (Organic Theory of the State)
Herbert Spencer gave a scientific exposition of the
organic theory of society. He applied this evolutionary
trend of society to Sociology. The organic theory has
been by Professor Allen:
“The interdependence of organisms in its sociological
aspects means the mutual relation of all members of
civilized society and the distribution of a sense of
responsibility far wider than can be comprised with the
formula sovereign and subject.”
Leon Duguit (Theory of Social Solidarity)
Leon Duguit built his theory on social solidarity upon
the two needs of men in society. Firstly, there are
common needs of individuals which are satisfied by
mutual assistance and by putting together their similar
aptitudes. Secondly, there are diverse needs of the
individuals which are satisfied by an exchange of services
each using his own aptitudes to satisfy the needs of
others. This division of labour is the pre-eminent fact of
social cohesion (solidarity by division of labour for
organic solidarity).
The most important fact put forward by him is the
interdependence of man. The end of all human activities
and organisation should be to ensure the
interdependence of men. This is Duguit’s Theory Of
Social Solidarity.
Duguit attacked the myth of state sovereignty. State is
also a human organisation and it is in no way different
from other organisations. Therefore, the state stands in
no special position of privilege and it can be justified only
so long as it fulfills its duty.
Duguit’s story of minimization of state function leads
him to deny any arbitrary power to legislators. According
to him “legislator does not create law but merely gives
expression to judicial norms formed by the
consciousness of the social group”.
Duguit’s views on state and its functions led him to deny
the distinction between private and public law. According
to him both are to serve the same end i.e. ‘Social
Solidarity’. Another important point in Duguit’s theory is
that he denies the existence of private rights. He says that
“the only right which any man can possess is the right to
always do his duty“.
Rudolph Von Ihering (‘Purpose or Interest Theory’)
According to Ihering, the dominant notion to be found
in the exercise of human will is that of ‘purpose’. Law is a
part of human conduct, and in the idea of purpose is to
further and protect the interest of society.
In society, there is an inevitable conflict between the
social interests of a man with each individual’s selfish
interests. To reconcile this conflict, he employs the
method of reward viz., by ensuring that economic wants
are satisfied, and also by coercion.
He divided interest under three broadheads, viz.,
individual, social, and state interest. The success of the
legal process was to be measured by the degree to which
it achieved a proper balance between social and
individual interests. Law, according to him, never serves
the interests of an individual as end in itself but only as a
means to the good of the society and hence is a relative
concept.
He refuted the individualistic concept of law which
limited the function of law to the securing of civil liberty
by protecting the rights of individuals in consonance with
those of others.
Eugen Ehrlich (Living Law)
Eugen Ehrlich is regarded as the founder of the
Sociological School of Jurisprudence. Sociology of law is
the study of law from the sociological view. Ehrlich
considered society as a principal source of the law. And
by society, he means “association of men”.
Ehrlich’s concept of ‘Living Law’ is that the law of a
community is to be found in social facts and not informal
sources of law. He says “at present as well as at any other
time, the center of gravity of legal development lies not in
legislation nor juristic science, nor judicial decisions, but
in society itself.” Thus living law is the fact which governs
life and a proper study of law requires the study of all the
social conditions in which the law functions in the
society.
Roscoe Pound (Social Engineering)
Pound gave the theory of Social Engineering in which he
connected lawyers with the Engineers. Engineers are
expected to use their engineering skills to manufacture
new products. Likewise, social engineers are required to
build that type of structure in the society which provides
maximum happiness and the smallest friction.
According to him, “Law is social engineering which
means a balance between the competing interests in
society,” in which applied science is used for resolving
individual and social problems. Social Engineering is
balancing the different interests of individuals and the
state with the help of law. Law is a body of awareness
with the help of law a large part of Social engineering is
carried on. Law is applied to solve the conflicting interest
and problems in society.
Pound had not only listed the interest recognized by law
but he has also considered the ways by which they are to
be secured. This consists of the device of legal persons
and attribution of claims, duties, liberties, powers, and
immunities. There is also the remedial machinery
behind them, which aims sometimes at punishment,
sometimes at redress, and sometimes at prevention.
Pound has also maintained that a balance of interest is to
be brought about. Pound further says that the class to
which an interest belongs and its relative weight is subject
to change from one class to another and from time to
time depending upon political conception acceptable to
society at a particular time.

Five Jural Postulates by Roscoe Pound: Men must be

able to assume that others will commit no intentional
aggressions upon them (Criminal Law).
Men must be able to assume that they may control for
beneficial purposes what they have discovered and
appropriated for their own use, what they have created
by their own labor, and what they have acquired under
the existing social and economic order (Intellectual
Property Law).
They must be able to assume that those with whom they
deal in the general intercourse of society will act in good
faith (Contract Law).
They must be able to assume that those who are engaged
in some course of conduct will act with due care not to
cast an unreasonable risk of injury on others (Tort Law).
They must be able to assume that others who maintain
things likely to get out of hand or to escape and do
damage will restrain them or keep them within their
proper bounds (Strict Liability).

6. Realist School (Legal Realism)

Realist School of Jurisprudence is a philosophy of law
that follows sociological approach. Realists examine
court decisions and take into account the human factor
involved in making those decisions. It is a type of
jurisprudence that focuses on the law as it currently exists
in the real world rather than how it works in the books.
So, it focused primarily on judge behaviour and how that
behaviour affects judicial decision-making processes.
According to Goodhart, the main characteristic features
of realist jurisprudence are as follows:
1. Realists think there can be no certainty about the law
as its predictability depends on the collection of facts to
be decided by the tribunal.
2. They do not favour formal, logical, and conceptual
legislative strategy.
3. They lay greater stress on the psychological
approach to the proper understanding of law as it is
concerned with human behaviour and convictions of the
lawyers and Judges.
4. The importance of legal terminology is opposed by
realists.
5. They prefer to evaluate any part of the law in terms
of its effects.
American Realism
American realism’s ultimate goal is to reform the legal
system. They want to learn about the law “as it is,” rather
than “as it should be.” This is something they share with
positivists. Furthermore, they seek to comprehend the
law by taking sociological factors into account. They
approach the study of law from an empirical standpoint.
John Chipman Gray is regarded as one of the “mental
forefathers of the realist movement.” Oliver Wendell
Holmes is regarded as “the father of American Realism”.
Justice Holmes said that law is nothing more than a
prediction. He believes that the life of a lawyer is a
combination of logic and experience. Judges make
decisions based on individual sense of right and wrong.
According to Holmes, the law should be viewed through
the eyes of a bad man. Based on this prediction, Holmes
defined law as “prophecies (ability to predict) of what the
court will do in fact.
Another thinker, belonging to this school, Jerome Frank
refuted the myth that law is consistent, certain, and
invariable. He claimed that judges do not create law, but
rather discover it.
According to Karl N. Llewellyn, realism is a movement
in legal thought and work. The basic functions of law,
according to him, are referred to as “law-jobs.”
Scandinavian Realism
In contrast to American Realism, the Scandinavian
realists’ approach to law is more abstract and
philosophical. According to this school, law cannot be
explained by physical facts alone and exists by the
psychological effects caused by certain facts. This school
sought to explain how the law changes the behaviour of
people. Axel Hagerstorm is considered to be the father
of this school.
Carl Olivercrona, one of the main thinkers belonging to
this school, claimed that law is nothing more than a
“collection of social facts.” He argued that laws are not
orders or expressions of the state’s will, but rather
“independent imperatives” issued from time to time by
the state’s constitutional agencies. These imperatives
“operate in the minds of the judge” as he makes a
decision.
According to Alf Ross, the predictability of decisions is
what makes a law valid. According to him, valid law is
“the abstract set of normative ideas that serve as a
scheme of interpretation for the phenomena of law in
action.” Because the courts and other legal authorities
who apply the law consider these norms to be socially
binding, they are effectively followed.”

7. Feminist Jurisprudence

Feminist jurisprudence is a philosophy of law based on

the political, economic, and social equality of sexes. As a
field of legal scholarship, feminist jurisprudence began in
1960s. It now holds a significant place in the United
States. Laws affecting employment, divorce reproductive
rights, rape, domestic violence, and sexual harassment
have all benefited from the analysis and insight of
feminist jurisprudence.
The first known use of the term feminist jurisprudence
was in the late 1970s by Ann Scales during the planning
process for Celebration 25, a party and conference held
in 1978 to celebrate the 25th anniversary of the first
women graduating from Harvard Law School.
Feminists believe that history was written from a male
point of view and does not reflect women's role in
making history and structuring society. Male-written
history has created a bias in the concepts of human
nature, gender potential, and social arrangements.
According to Feminist School, the language, logic, and
structure of the law are male-created and reinforce male
values. By presenting male characteristics as a "norm"
and female characteristics as deviation from the
"norm," the prevailing conceptions of law reinforce and
perpetuate patriarchal power. Feminists challenge the
belief that the biological make-up of men and women is
so different that certain behaviour can be attributed on
the basis of sex. Gender, feminists say, is created socially,
not biologically.
There are four major schools of thought within feminist
jurisprudence. First, liberal feminism asserts that women
are just as rational as men and therefore should have
equal opportunity to make their own choices. They
challenge the assumption of male authority and seek to
erase gender-based distinctions recognized by law thus
enabling women to compete in the marketplace.
Cultural feminism focuses on the differences between
men and women and celebrates those differences. The
goal of this school is to give equal recognition to women's
moral voice of caring and communal values.
Radical feminism focuses on inequality. It asserts that
men, as a class, have dominated women as a class,
creating gender inequality. For radical feminists, gender
is a question of power. They urge women to abandon
traditional approaches that take masculinity as their
reference point. They argue that sexual equality must be
constructed on the basis of women's differences from
men and not be a mere accommodation of those
differences.
According to postmodern feminism, inequality is a social
construct and is a result of patriarchy, hence it requires
feminist reconstruction. The school emphasizes the
process of self-definition and the strategy for raising
awareness and giving voice to the unknown women’s
experiences. Postmodern feminists use deconstruction to
show that laws should not be rigid because they are made
by humans who have biases and thus contribute to
female oppression.

8. Marxist School of Jurisprudence

There are three basic assumptions in the Marxist
theories of law, first, that law is the product of economic
forces; secondly, law is considered to be the tool of the
ruling class to maintain its powers over the working
classes. Finally, law will wither away in the future
communist society.
The Marxian concept of law is entirely opposed to other
Schools of Jurisprudence. According to Marx, law is
intimately associated with the nature of the State. He
does not accept the view that law is the expression of the
will of the people or reflection of the principles of social
justice or the result of habits and customs or the social
needs it serves.
According to him, law is merely an expression of the will
of the State. In a class society it is the will of the ruling
class.
In a Capitalist State, the law is only the tool of the State
to maintain and safeguard the interests of the capitalist
class. The Marxian view of law does not accept other
refinements connected with the State and law. Moreover,
law for Marx is a vehicle for destroying Capitalism and
constructing Socialism.
9. Comparative School

Another school of jurisprudence, known as the

Comparative School, is of modern origin. Its exponents
adopt the method of examining and comparing the legal
systems of the past and the present, and arrive at
generalisations.
They also draw upon other Social Sciences for their
material for proper authentication and reliability.
Although the programme of this school is ambitious and
sufficient headway has been made in our knowledge of
law, much still remains to be done.
Comparisons are, no doubt, valuable aids and they bring
us nearer to the truth. But if law is really to be the
manifestation of the will of the people, it must be in
conformity with the genius of the people concerned. No
wholesale importation from outside can serve the desired
purpose and fulfil the needs.
 Module 2

1. Introduction: Law is an instrument which regulates

human conduct/behaviour. Law means Justice,
Morality, Reason, Order, and Righteous from the view
point of the society. Law is a broader term which
includes Acts, Statutes, Rules, Regulations, Orders,
Ordinances, Justice, Morality, Reason, Righteous,
Rules of court, Decrees, Judgment, Orders of courts,
Injunctions, Tort, Jurisprudence, Legal theory, etc.
2. Meaning of Law: In old English “Lagu” i.e. law,
ordinance, rule, regulation from old norse “lagu” law
collective Plural of “Lag” is layer, measure, stroke
‘Literally’ something laid down of fixed. In Hindu
religion law implies “Dharma”, in Muhammadean
religion (Islam) it is “Hokum” , in Roman its “Jus”, in
French, its “Droit” , in Arabic Alqanoon, in Persian
and Turkish, its Kunoon and in Latin its “Legam”.

3. Definitions: Great Greek thinker, Aristotle, had said,

“At his best, man is the noblest of all animals;
separated from law and justice, he is the worst” and
similarly, Thomas Hobbes had pronounced, “It is not
wisdom but Authority that makes a law.”
John Austin, father of English Jurisprudence, defined law
as “a rule laid down for the guidance of an intelligent
being by an intelligent being having power over him. He
also stated that “Law is the command of the Sovereign”.
According to another positive school thinker Salmond,
“the law may be defined as the body of principles
recognized and applied by the state in the administration
of Justice.
John Chipman Gray, belonging to realism school of
jurisprudence, defines law as: “the Law of the State or of
any organized body of men is composed of the rules
which the courts, that is the judicial organ of the body
lays down for the determination of legal rights and
duties.
Savigny, the proponent of the historical school, defined
law not as a body of rules set by determinate authority
but as rules consist partly of social habitat and partly of
experience. He said law is found in society and in
custom.
Roscoe Pound, who belonged to sociological school of
jurisprudence, defined law as a social institution to satisfy
social wants. He says law is a social engineering, which
means that law is a instrument to balance between the
competing or conflicting interests.
4. Origin of Law: Every society needs to have laws to
protect itself and its members. Even ancient
civilisations had laws, which were part of their religious
 ritual and tribal customs. These were passed on by
example and by word of mouth.
Babylon: The oldest written set of laws known to us is
the Code of Hammurabi. Hammurabi was the king of
Babylon between 1792 BC and 1758 BC. These laws
were carved on huge stone slabs and placed all over the
city so that people would know about them.
Their philosophy of law was: 'An eye for an eye and a
tooth for a tooth'. Whatever was done to the victim, then
the aggressor would be repaid in a similar fashion.
Rome: The most detailed legal code of any of the
civilisations was that of the Romans. The Roman law
code was first drawn up in 450 BC by the magistrates and
was called the Twelve Tables. All Roman citizens were
expected to know the Twelve Tables, which included
laws such as:
• When anyone makes a formal promise or sells

property, then according to law, his promise must

be carried out.
• If anyone sings abusive songs about somebody else,

he shall be put to death.

• If anyone breaks somebody else's limb and does not

apologise, then the other man can break the first

man's limb in return.
Whenever people had legal problems, they would ask
for an opinion from the jurists who studied the laws.
These opinions were written down and collected to form
part of the law.
According to Roman law, people were considered to be
innocent until proven guilty. Lawyers would present their
case to a jury consisting of 32 men, who would decide on
the punishment to be imposed. Over the centuries, many
changes and additions were made to the laws as the
Romans extended their rule to the countries they
conquered.

5. Nature of Law: What is the essence of law is a long-

disputed question.
There are two aspects of law. One is based on justice, the
other one is based on control. The latter part is in use
today. “Might is right” principle is followed. It is
retribution instead of restoration which should be
followed.
Justice is a set of universal principles which guide people
to analyse what is right and what is wrong. It disregards
the culture and society one lives in. Fiat justitia ruat
caelum is a Latin phrase which means, “Let justice be
done, though the sky falls.”
Social control refers to mechanisms which regulate
individual and group behaviour. E.A. Ross, the famous
sociologist believed that it is not the laws that guide
human behaviour but it is the belief systems that guide
what individuals do. Social control mechanisms can be
adopted as laws and norms which control and define
human behaviour.
6. Functions or Purpose of Law
Maintaining Order: Law is meant to establish public
order. Maintaining public order is necessary for a civilized
society. Therefore, the same is reflected in law.
Furthermore, the law when it is enforced provides
consistency with the society’s guidelines.
Establishing Standards: This law is a guideline to the
minimum accepted behaviour in society. There are some
activities that are a crime for a society to determine it will
not tolerate certain behaviors that may damage or injure
the person or their property. For example, it is a crime to
injure a person without any sort of justification. Thus,
doing so can constitute a crime of assault.
Resolving Disputes: Disputes are not avoided in a society
that has been comprised of people with different wants,
needs, values, etc. Also, the law provides a formal means
to solve the disputes which are the court system.
Protecting Liberties and Rights: The function of the law is
to protect various rights and liberties from unreasonable
or violations intrusions by organizations, persons or
government. Thus, if someone believes that the freedom
of speech has been prohibited by the government may
pursue the remedy by bringing the case in the courts.
Effecting Social Change: Several scholars agree on the
role of law in contemporary society as a mechanism for
social change. Law helps us to bring about rational,
expected, and guided social change. The flexibility of law
provides for some measure of discretion in law to make
it adaptable to social conditions. If the law is static and
unalterable, it does not react spontaneously to changes
that may lead to discontent and frustration among
subjects and may even lead to violence or revolution. A
degree of flexibility is therefore necessary in law

Passing Information: Through the law, the information is

passed on to the citizens every day in many various ways.

Conservation of Environment: Law is an effective tool in

the conservation of environment and protection of forests
and wildlife.

Maintaining International Relations: Law is an effective

weapon in ensuring peaceful co-existence between
various countries and maintenance of good international
relations by the countries.

7. Classification or Types of Law

1. Municipal Law and International Law

Municipal law is the law of that nation; it is domestic

law that governs the subjects of the state. This is contrary
to International law. Municipal Law regulates relations
between the individuals under the sway of the respective
State and the relations between this State and the
respective individuals. State approves the law. It is
generally regional in nature as it is applied within the
territory of the country itself.

International law is a set of rules which are binding

between countries and aims to ensure security and peace
among various nations. It is an independent system of
law existing outside the legal framework of a particular
state. International law has been incorporated into
national law by various countries. The United States has
declared that all international law will be part of the
nation’s law.

Customary International law: These are rules that have

been in force since ancient times between countries such
as the law of the sea.

Treaty law: These are rules made by treaties between two

or more countries.

Public International law: These are the rules that govern

the conduct and relations of the state with others.
Private International law: It contains rules and principles
according to which cases with foreign elements are
decided.
•

2. Public Law and Private Law

Public law is the part of law that governs relations

between legal persons and a government, between
different institutions within a state, between different
branches of governments, as well as relationships
between persons that are of direct concern to society.
The activities of the state are regulated by public law.
It determines and controls the organization and
functioning of the state and also determines the
relationship of the state with its subjects. The term
‘public’ means a state or a sovereign part of it or a body,
or a person holding a delegated authority under the state.
Private law is the branch of law that deals with the rights
and duties of private individuals and the relationship
between them. Private law deals with the rights and
obligations of individuals, families, businesses and small
groups and exists to assist citizens in disputes involving
private matters.

Further classification of private law is as follows: –

• Law of the person

• Property law

• Law of liability conflict of laws

 The law of liability is divided into 3 classes: –
• The contracts

• Quasi-contract

• Torts

S.NO. PUBLIC LAW PRIVATE LAW

1. Public law deals with Private la

issues that affect the w deals with the rights and
general public or the state obligations of individuals, families,
– society as a whole. businesses and small groups and
exists to assist citizens in disputes
involving private matters.

2. Public law includes inter- Private law includes participation

relationships between the among private citizens.
state and the general
population.

3. Public law consists of three Private law consists of the law of

subdivisions: obligations and the law of torts.
Constitutional,
administrative and
criminal law.

4. Public law deals with a Private law operates with a more

larger scope. specific scope.
S.NO. PUBLIC LAW PRIVATE LAW

5. Public law focuses more Private Law deals more with the
on the issues that affect the issues affecting private individuals,
general public or the state or corporations.
itself.

3. Civil Law, Criminal Law & Constitutional Law

Civil law deals with behavior that causes injury to an

individual or other private party, such as a corporation.
Example of civil law is defamation, breach of contract,
negligence which is resulting in injury or death, and
property damage.

Criminal law deals with behavior that can be recognized

as a crime against the public, society, or the state – even
if the immediate victim is a person. Examples of the
same are murder, assault, theft and drunk driving.
S.No. Civil Law Criminal Law

1. Civil law deals with the disputes Criminal law deals with crimes
between that are committed against
individuals, organizations, or society. Criminal law is the
between the two, in which body of law that deals with
compensation is awarded to the crime and the
victim. legal punishment of criminal
offenses.

2. According to civil law, the It serves different degrees of

wrongdoer has to pay punishment for the crime
compensation to the affected committed.
organization or person.

3. Civil law deals with property, Criminal law deals with serious
money, housing, divorce, custody crimes like murder, rape,
of a child in the event of a arson, robbery, assault etc.
divorce, etc.

4. Civil law is initiated by a person The government files a

or organization or also known as petition in a criminal law
the plaintiff. ‘ case.

5. In the case of civil law, there is As a matter of criminal law,

no punishment like criminal law, the punishment is done
but the aggrieved party receives according to the severity of the
 compensation and the dispute is offense or a fine can be
resolved. imposed.

6. Criminal law is the body of law “Beyond a reasonable doubt”:

that deals with crime and the Burden of proof is always on
legal punishment of criminal the state/government.
offenses.

Constitutional Law: The term “constitution” is a French

term and refers to the set of fundamental rules and
regulations that govern the functioning of a nation-state
or any other organization. A state’s constitution is the
supreme law of the land and thus requires higher
standards of legitimacy and integrity. It outlines a state’s
fundamental principles, administrative structures,
procedures, and fundamental rights of individuals while
defining the directions for a state’s development.

“Constitutional law” is concerned with the interpretation

and implementation of the Constitution and its
underlying principles. It forms the basis for individuals’
access to particular fundamental rights, inter alia the right
to life, the right to privacy, the freedom to move, and the
right to vote. It lays down procedural conditions that
must be met before a governmental entity can intervene
with an individual’s rights, liberties, or property.
Constitutional law also deals with subjects such as judicial
review, fundamental duties, and the power to make laws,
among other things.
 4. Substantive Law and Procedural Law

Substantive law is the law which governs the original

rights and obligations of individuals. Substantive law may
derive from the common law, statutes, or a constitution.
For example, a claim to recover for breach of contract or
negligence or fraud would be a common law substantive
right. This law refers to the body of rules that determine
the rights and obligations of individuals and collective
bodies.

Procedural law establishes the legal rules by which

substantive law is created, enforced and applied,
especially in a court of law. Procedural law refers to the
different processes through which a case proceeds.
Procedural laws define the rules with which substantive
laws may be enforced.

S.No. Substantive Law Procedural Law

1. It establishes the rights, It follows the means and

obligations and duties of other methods through which
persons or persons with the state. adequate legislation is
enforced.
2. It has independent powers to It has no independent
decide the fate of each case. authority to decide the fate of
each case.

3. This law cannot be applied in This law can be applied in

non-legal contexts. both legal and non-legal
contexts.

4. It does not specifically deal with It deals with what is

proceedings inside a court. happening inside the court.

5. These laws are regulated by Acts These laws are regulated by

of Parliament or government statutory laws.
implementation.
 8. Types of Legal Systems
Types of Legal Systems Legal systems vary from country
to country, and sometimes within a single country.
Although they develop in different ways, legal systems
also have some similarities based on historically accepted
justice ideals. Legal systems do fall into groups or
patterns with some similar features within each group.
Among the main groups that you might encounter are: 1)
Common Law; 2) Civil Law; 3) Religious Law; and 4)
Customary Law 5. Mixed or Hybrid Legal Systems.

Common Law System

Countries following a common law system are typically
those that were former British colonies or protectorates,
including the United States.
Features of a common law system include:
 • There is not always a written constitution or codified
laws;
• Judicial decisions are binding – decisions of the
highest court can generally only be overturned by that
same court or through legislation. Eg: In India, as per
Article 141 of the Constitution, any judgment made
by the Supreme Court of India having the value of
precedent is binding on all lower courts in the court.
Such judgments are called case laws. Such a judgment
has the same force of law passed by Legislature.

• Extensive freedom of contract - few provisions are

implied into the contract by law (although provisions
seeking to protect private consumers may be
implied);
• Generally, everything is permitted that is not
expressly prohibited by law.
A common law system is less prescriptive than a civil law
system. A government may therefore wish to enshrine
protections of its citizens in specific legislation related to
the infrastructure program being contemplated.

Civil Law Legal System (Continental or Romano-

Germanic System)
Countries following a civil law system are typically those
that were former French, Dutch, German, Spanish or
Portuguese colonies. The civil law system is a codified
system of law. It takes its origins from Roman law.
Features of a civil law system include:
 • There is generally a written constitution based on
specific codes (e.g., civil code, codes covering
corporate law, administrative law, tax law and
constitutional law) enshrining basic rights and duties;
administrative law is however usually less codified
and administrative court judges tend to behave more
like common law judges;
• Only legislative enactments are considered binding

for all. There is little scope for judge-made law in civil,

criminal and commercial courts, although in practice
judges tend to follow previous judicial decisions;
constitutional and administrative courts can nullify
laws and regulations and their decisions in such cases
are binding for all.
• In some civil law systems, e.g., Germany, writings of

legal scholars have significant influence on the courts;

• Courts specific to the underlying codes – there are

therefore usually separate constitutional court,

administrative court and civil court systems that opine
on consistency of legislation and administrative acts
with and interpret that specific code;
• Less freedom of contract - many provisions are

implied into a contract by law and parties cannot

contract out of certain provisions.
A civil law system is generally more prescriptive than a
common law system.

Religious or Canon Legal System emanates from the

sacred texts of religious traditions and in most cases
purports to cover all aspects of life as a seamless part of
devotional obligations to a transcendent, imminent, or
deep philosophical reality, either personal or
cosmological.

Customary Legal System is a set of customs, practices

and beliefs that are accepted as obligatory rules of
conduct by indigenous peoples and local com- munities.
Customary law forms an intrinsic part of their social and
economic systems and way of life.

Mixed Legal System traditionally combines common and

civil law elements in an obvious way. Usually, common
law takes charge of public law, while civil law governs the
private law side.

9. Dharma and Modern Law

Dharma is generally accepted to have been derived and
supersede from the vedic concept of Rita, which literally
meant, ’the straight line’. Rita refers to the Law of
Nature, it signifies moral laws, and based on
righteousness. When something is Rita it simply meant
that thing is true, right and nothing more.
Dharma originated from Vedas which are Sruti (heard
knowledge) and they are the supreme source of
knowledge for humans, as the narration of what is heard
from the ancient priests that is Sruti and they contains
narration on everything possible ranging from military to
politics to common people’s life. Its other sources are
Smriti, which are the interpretation of Vedas and four
sages have propounded the dharmasastras and are called
Smritikars. They are Manu, Yagnavalkaya, Brihaspati
and Narada.

Dharma signifies regularity of order universally accepted,

it includes religion, duty, and inseperable of a quality or
an order, whereas present day law is based on reasons
and does include religious aspects. Dharma is a duty-
based concept, however the present law focuses on rights
rather than duties.

Dharma in itself included morals, ethics and righteous

conduct of a man, but the present system does not
recognise the moral or ethical values rather than conduct
or motive, Modern law now focuses on the act and the
consequences.

Dharma pre-supposes a supernatural and binds together

by the fear of the same supernatural but on the other
hand the law is based on reasonableness and binds
through legal sanctions given by courts (human).

Law in modern sense is confined to rights and not with

righteous conduct whereas Dharma is all pervasive and
universal. The law pre-supposes man’s idea of ‘what
ought to be’ and is based on reasonableness.

The concept of welfare state, which is the nature of state

today, is found to have roots in Dharma. The Human
Rights and fundamental rights had its roots in Dharma
and Rigveda clearly showed ample evidences.

10. Comparative Law

Comparative Law is a method for the study of laws of

different countries. It includes various processes such as
analyzing the laws and comparing them on a different
basis. It emphasizes on the legal mechanisms being
adopted by countries and compares them.

Comparative law is not a legal text or body of rules. It is

more of a method. Thus, German and French lawyers
use terms like ‘rechtsver-gleichung’ and ‘droit compare’
which means law compare and thus seems to be more
appropriate for the subject. It is not a separate branch of
law but just a method to analyze different versions of the
law.

Comparative law is a way to build a basic foundation

through which laws all over the world operate. The
interconnectivity among the various sectors of different
countries has created a situation where consensus
between the countries in various aspects becomes
important.

The first adoption of modern comparative law seems to

have been done by Rome and England. In 1829, the
term was used by Mittermaier and Zochariae in their first
legal review which was devoted to studying of foreign law
and thus paving its way into the legal system of Germany.
At the foundation event of the College De France in
1832, the concept was introduced in France as well.

Presently, Montesquieu is considered as the ‘Father of

comparative law’ because of the comparative approach
he used in his book De L’esprit des lois.

Significance of Comparative Law: 1. Comparative helps

in evaluating a better law.

2. It is significant in gaining knowledge for students and

professionals.

3. It helps in substantiating the application of the law.

4. The most significant part of comparative law is the

understanding of international law.

5.It is crucial for understanding trade laws.

6.The main aspect of comparative law is the unification

of laws on an international level.

7. In case of conflict analysis, it can be used in private

international law.
 Module 3
Sources of Law

1. Precedent
Precedent is one of the sources of law. Many times, the
judges depend on their own sense of right and wrong and
decide the disputes. Such decisions become authority or
guide for subsequent cases of a similar nature and they
are called precedents.
The dictionary of English law defines a judicial
precedent as a judgement or decision of a court of law
cited as an authority for deciding a similar state of fact in
another case. Precedent is more flexible than legislation
and custom.
Precedent is otherwise called case law or judicial decision
or judge made law. It enjoyed a high authority. Precedent
plays a vital role when law is unwritten. The English
Common Law is based on precedent.
Example of Precedent
Vishakha and others vs. State of Rajasthan, 1977
It is regarded as one of the landmark cases in India
because this case was the first of its kind to provide safety
for women at their work places. The roots of the case are
attached to miss bhanwari devi who was a social worker
and was brutally gang raped by upper case men, as she
opposed a child marriage .though she filed a case she
was unable to get a justice. Bhanwari Devi's
determination attracted many women and ngos to file a
public interest litigation (PIL) collectively under the
platform of Vishakha for the violations of article
14,15,19(1)(g) and 21 of the Indian Constitution. The
judgment given by the bench of J.S Verma, Sujata
Manohar and B.N Kripal laid down the Vishakha
guidelines to protect women against sexual harassment at
work place. Later in 2013 it was transformed into a the
sexual harassment of women at workplace Act 2013.
Types of Precedent
Authoritative Precedents: These are those precedents
which are binding on all the courts. These precedents
are binding on judges who interpret the law and whether
they approve it or no, these are regarded as a source of
law. For example decision of the Supreme court.
Authoritative precedents are of two types:
Absolute Precedents: These precedents are binding
there are no choices, judges have to follow it.
Conditional Precedents: these are not absolute if judges
want they cannot follow them but in certain
circumstances. But generally, they are binding.
Persuasive Precedents: They do not have any legal force
or effect in themselves. They are not bound to follow if
judges want they can use these as a reference and take
into consideration while giving decisions. These
precedents are of guiding character and only a historical
source of law. Persuasive precedents can help to
establish laws but giving some authority from the past.
The decisions of one high court only act as a guide or
persuasive for another High Court in India. The HC
decision on a particular case is not binding on another
HC decision. They may take reference from these
decisions but there is no obligation that they have to state
the same decision as given by previous HC. For example
foreign judgments, authoritative textbooks etc.
Original Precedents: According to Salmond these
precedents establish or create new law. It is evidence for
the law of the future. An original precedent is made
when there is no previous judicial decision on a point of
law. When the court has to form an original precedent, a
judge will come to their decision by analogy.
Declaratory Precedents: These precedents apply already
existing rules. It is considered a good source of law.

Theories of Precedent
1. Declaratory Precedent Theory: Declaration of
existing law by the judges is known as declaratory theory.
Judge only declare the existing law.
2. Original Precedent Theory: Law-making done by
the judge is known as original precedent theory. Judge
are the law makers. The role of judge is creative,
particularly when the law is absent.

Principles of Precedent
1.Ratio Decidendi: The reason for the decision is known
as Ratio Decidendi. It is an authoritative principle of a
judicial decision. According to Prof Keeton, Ration
decidendi is a principle of law which forms the basis of
the decision arrived at by a Judge. It is essential for the
decision of a case. It has force of law and binding on the
courts.
Bridges Vs. Hawkeshworth Case: Customer found
money on the floor of a shopping complex. Both
customer and shopkeeper claimed that money. The
court treated shop as a public place and applied the rule
“finder keeper” and it favoured the customer. Here, the
ratio decidendi is the finder of goods is the keeper
principle.
2. Obiter Dictum: Something said by the judge on the
way is Obiter Dictum. It is a judge's expression of
opinion uttered in a court or in a written judgement. But
it is not essential to the decision and therefore not legally
binding as a precedent.
Judge may declare some general principles relating to law
through Obiter Dictum. But it may be unnecessary and
irrelevant to the issues before him. Those unnecessary
statements of law which lay down a rule is called Obiter
dictum.
3. Stare Decisis: Stare decisis means “to stand by things
decided” in Latin. When a court faces a legal argument,
if a previous court has ruled on the same or a closely
related issue, then the court will make their decision in
alignment with the previous court's decision.
A prior ruling or judgment on any case is known as a
precedent whereas the Stare Decisis dictates that courts
look to precedents when overseeing an ongoing case with
similar circumstances.
4.Prospective overruling: A Bench of the Supreme Court
consisting of more number of judges can overrule the
earlier decision of a Bench of the Supreme Court. It is a
modern trend which enables the court to correct its
errors without affecting its past transactions. It was in the
case of Golaknath v. State of Punjab that the then Chief
Justice Subba Rao had first invoked the doctrine of
prospective overruling.

2.Custom
The term ‘custom’ comes from the French word
‘Coustume’.
Custom can simply be defined as long-standing unwritten
regulations that have acquired a compulsory status over a
time period. A custom is a continual series of behaviour
that has come to be considered as fixing the norm of
conduct for members of society.

John Salmond says, “Custom embodies those values that

have been recognised by the national conscience as
principles of fairness and public benefit.”
A valid custom, according to Salmond, possesses
absolute legal authority and has the force of law in and of
itself.
Regarding the origin of customs there are different and
divergent views. Historical jurists of Germany say that
they originate from the common consciousness of
people. Some say that man’s nature of imitation is the
main cause of origin of customs. There is a series of
reputed jurists who assert that judicial decisions are the
basis of customs.

Types of Custom
a) Legal Custom: Legal custom is a custom whose
authority is absolute; it possesses the force of law. It
is recognized and enforced by the courts.
Legal custom may be further classified into the following
two types:
• General Customs: These types of customs prevail
throughout the territory of the State.
• Local Customs: Local customs are applicable to a part
of the State, or a particular region of the country.
b.) Conventional Customs: Conventional customs are
binding on the parties to an agreement. When two or
more persons enter into an agreement related to a trade,
it is presumed in law that they make the contract in
accordance with established convention or usage of that
trade.
Essentials of a Valid Custom
1. Antiquity – A custom to be recognized as law must
be proved to be in existence from the time
immemorial A custom in England must date from
the reign of Richard I, King of England. In England,
the time of legal memory for a custom to be
considered legitimate is 1189.
In Ambalika Dasi v. Aparna Dasi, the Calcutta High
Court held that either 1773 A.D. or 1793 A.D. is the
appropriate period for treating a custom that has
existed since time immemorial.
2. Continuance: The second essential of a custom is
that it must have been practiced endlessly. In
England, the custom during the period from 1189
must have been enjoyed continuously without any
interruption.
 3. Peaceable enjoyment: The custom must have been
enjoyed peaceably. There should not be any long
standing disputes over a particular custom.

4) Obligatory force: The custom should have an

obligatory force. It must have been supported by the
general public opinion and enjoyed as a matter of right.

5) Certainty: A custom be certain. A custom that is

obscure or indefinite cannot be recognized. It is more a
rule of evidence than anything else. The court must be
satisfied by a clear proof that custom exists as a matter of
truth, or as a legal presumption of fact. In the famous
Wilson v. Wills case, it was said that a custom must be
specific and not ambiguous.

6) Consistency: The customs which ever are prevailed

should not come in conflict with other established
customs. They should maintain consistency among the
other customs. Therefore, it is said that one custom
cannot be set in opposition to other customs.

7) Reasonableness: A custom must be reasonable. A

custom must be should be in conformity with regard to
basic morality. It should be prevailed as understanding of
justice, health and public policy. If the custom is not
reasonable, then it cannot be considered as a valid custom.
The Bombay High Court ruled in Mathura Natkin
Plaintiff v. Esu Naikin found illegal the practice of
adopting girls for immoral purposes in the name of a
custom.

8) Conformity with statute law: A custom has to be valid,

and it should be in conformity with statute law. There
should not be any contravention in relation to the
existing laws. It is a positive rule in most of the legal
systems that a statute can abrogate a custom. If any
violation is found in relation with custom in a territory, it
cannot be treated as custom. The Supreme Courrt of
India declared in Mohammad Baqar and Ors.V. Naim-
Un-Nisa Bibi that custom, obviously, cannot override
newly adopted legislation.

9) Public Policy: Whatever the public policy is it should

be of state and the custom must be in operating. The
custom should not go against public policy.

10) General: The custom will be effect when it is

universally accepted or nearly so. If there is an absence of
unanimity of opinions then customs has no power left, or
rather they don’t exist.

Custom and Prescription

Prescription is limited to the rights of a person and his
predecessors, thus it is a species of custom. When a
course of conduct is practiced for a long time, it gives rise
to rule of law, to become custom and if it gives rise to the
right, it is prescription. Prescription is confined to the
personal right whereas custom extends to a particular
place of community and unlike custom; prescriptions
need not to be followed from time immemorial. For a
custom to be valid it must be in conformity with the
principle of natural justice, it is not in case of
prescription. In simple words, custom is a source of law
while perception is a source of right.

3.Legislation

Meaning of Legislation: – Legislation means the process

of lawmaking. Legis means law and Latum mean
“making”, and as a whole it means lawmaking. According
to Austin, it means the making of law by a supreme or a
sovereign authority which must be followed by people of
every stratum of the society. Salmond defines Legislation
as the process of lawmaking by a competent and able
authority.
Legislation is the process of lawmaking where a
competent authority is given the task of drafting and
enacting the law in a state.
According to Salmond: – “Legislation is that source of
law which comprises in the assertion of lawful standards
by a competent specialist.”
According To Austin: – “Legislation is the command of
the sovereign or the superior authority which must be
followed by the common masses backed by sanctions.”
According to Gray: – “Legislation implies the formal
expression of the administrative organs of the general
public.”

What are the types of legislation? While enacting any

legislation and the rule of law, the welfare of the citizens
must be kept in mind and therefore, it is must be
adopted in the best interests of the citizens.
Some different types of legislation are as follows: –
1. Supreme Legislation: – The Supreme legislation is
the legislation embraced by the sovereign force of
the state.
A. In regards to all the matters relating to the
legislature, executive, and judiciary, the
constitution of India is considered the
supreme authority. Also, supreme
legislation is that legislation that draws its
power right from the constitution. Thus, it
cannot be challenged under any legislative
power.
B. In the Indian legal system, ordinances, acts
of parliament, laws made by the governors
and president are in the limits of their
authority. This authority is given by the
constitution as a part of supreme legislation.
So, in India, the authority is possessed by
the parliament.
2. Subordinate Legislation: – Any other legislation
that is lower in authority than the supreme
legislation is called subordinate legislation. Also, it
derives its power from any authority besides the
sovereign power. The legislation created by the
authorities like municipalities universities, and
corporations that are under the authority of
supreme legislation are also part of subordinate
legislation. It is made under the forces assigned by
the Supreme power. Such legislation owes its
existence, authenticity, and continuation to the
supreme master. Subordinate legislation is
obligated to parliamentary control. Sub categories
or example of subordinate legislations can be: –
Colonial Legislation, Executive Legislation,
Judicial Legislation, Municipal Legislation,
Autonomous Legislation.
A. Colonial Legislation: – Countries that are
not autonomous and are under the control
of another state do not have a Supreme
Court. These countries are classified as
colonies, dominions, protected or trust
areas, and so on. Their laws are subject to
the Supreme Legislation of the state over
which they have control. As a result, it is
secondary legislation. The United Kingdom
has a large number of colonies and
dominions. The laws they pass for self-
government are subject to change, repeal,
 or supersession by British Parliament
legislation.
B. Executive Legislation: – Executive
legislation is created when legislative
powers are given to an executive by an
authorized official. Even though the
official’s primary responsibility is to carry
out the laws and maintain the organization,
he or she is constantly reliant on
subordinate enactment powers. Today’s
laws contain assignment statements that
delegate law-making authority from the
office to the executive to improve statutory
arrangements.
C. Judicial Legislation: – The judicial
system has been given the authority to
establish and apply its laws to protect the
country’s judicial system’s transparency.
This will also ensure that no other
government organ is involved in the
administration of the state’s judicial system.
D. Municipal Legislation: – Municipalities
are given the authority to enact bylaws
governing their immediate surroundings. A
neighborhood body’s legislation governs its
territory. Municipal corporations,
Municipal Boards, Zila Parishads, and
other Indian municipal bodies are
examples. There is a push to give
Panchayats more power. Along these lines,
 there is a chance that this type of
subordinate enactment will be expanded in
our country. The 73rd Amendment later
included the proposals in the Constitution.
The Municipal Legislation was made for
the purpose such as water tax, land urban
cess, property tax, town planning, public
health, and sanitation, etc.
E. Autonomous Legislation: – The law
created by the last is known as the
autonomous law, and the body is known as
a self-ruling body when the Supreme
authority grants powers to a group of
individuals to administrate on problems
that are important to them as a group. A
railway is a separate entity from the rest of
the transportation system. It establishes
bye-laws to govern its operations, among
other things. A college is a self-governing
organization as well. Some Indian
universities have even been given
autonomy.
3. Delegated Legislation: – ‘Delegation’ can be
defined as a demonstration of entrusting an
individual with the force or enabling him to follow
up for that individual who has given him that
power or to go about as his representative or
delegate. ‘Delegated legislation’ signifies the
practicing of administrative force by a specialist
who is lower in position to the Legislature, or who
 is subordinate to the Legislature. ‘Delegated
legislation’, moreover insinuated as helper
legislation, is a sanctioning made by an individual
or body other than Parliament. Parliament,
through an Act of Parliament, can permit another
person or someone to make sanctioning. An Act
of Parliament makes the arrangement of a
particular or specific law and will in general
contain a diagram of the motivation behind the
Act. By assigning the legislation by Parliament to
the Executive or any subordinate, it enables
various individuals or bodies to incorporate more
subtleties to an Act of Parliament. Parliament
thusly, through basic authorization (for instance an
Act of Parliament), licenses others to make laws
and rules through delegated legislation. The
sanctioning made by an approved individual
should be made according to the explanation set
down in the Act of Parliament.

What are the advantages of legislation as a source of law?

Some main advantages of legislation as a source of
law are as follows: –
1. Abrogative Power: – It has the authority to amend
or repeal existing laws that are not under the
control of several sources. Also, Legislation has
both a constitutive and an abrogative function;
2. Effectiveness: – Legislation allows for a more
efficient division of labor by separating the two
 functions of making and enforcing the law. As a
result, efficiency improves;
3. Declaration: – It establishes that legal concepts will
be known before they are enacted. Justice requires
that laws be known before they are implemented
and enforced by the courts, yet the ease legislation
operates retrospectively, applying to facts that
occurred before the law was enacted. In its
application, statute law is rarely retrospective.
Then legislation passes the test of a court of
justice’s interpretation of the statute. If any
changes to the adopted law are suggested, they are
disclosed and public input is sought;
4. Reliance on Unintentional Legislation: – Because
the legislation is self-contained and emerges as the
authoritative source of law, it does not have to
withstand scrutiny until the initial case of
legislation;
5. Incomparable in Form: – Legislation is superior in
form because it is brief, clear, easily accessible,
and understandable, whereas valuable case law
must be extracted from a mountain of dross.
Before the ratio is decided or case law can be
discovered, one must read the entire judgment. As
Salmond puts it, ease law is “gold in the mine,” a
few grams of precious metal for every tonne of
useless material, whereas statute law is “coin of the
realm,” ready for immediate use; and
6. Provision for Future Cases: – Legislation can
make rules for cases that have not yet occurred. As
 soon as a defect is brought to the legislature’s
attention, it can fill a vacancy or settle a dispute in
the legal system.

What are the disadvantages of legislation as a source of

law?
There is no source of law that is perfect and completely
complete in its form and sense; every source of law has
some flaws and gaps, which are as follows in the case of
legislation: –
1. Rigid and Inflexible: – The law in the legislation is
rigid and is inflexible and un-adaptive. Therefore,
in extreme cases, injustice occurred with the
victims;
2. In light of Hypothesis: – Legislation, for the most
part, is based on speculative certainty, taking into
account the current environment and
surroundings, in which established law is
frequently observed to be blemished in its
application to the perplexing issues that arise in
real life through piecemeal solutions arising from
commonsense exigencies and convenience;
3. Lack of Clarity: – It is commonly stated that
statute laws are frequently drafted in ambiguous
language, with numerous loopholes. It opens the
door to a plethora of possible interpretations.
There are numerous errors and omissions made
while connecting the law, which makes little sense
to the average person;
 4. Lack of Judicial Discretion: – The judge must
implement the law in its current form and adhere
to it. The law is applied as written. Other aspects
such as social, economic, and other circumstances
must also be considered by the judge while
resolving the case, but this aspect was not found in
written form anywhere, due to which it may be
found difficult for the judges to pronounce the
judgment as the law written and ignoring the merit
of the case and other aspects of the case; and
5. Arises Conflict: – Individual rights are abridged by
some legislation, which is subjected to Judicial
Review. For example, Citizenship Amendment
Act, 2020, Farms Act, 2020 was reviewed by the
Judiciary.

Difference between Legislation and Judicial Precedent as

Sources of Law
1. The legislation has its source in the process of law
which is basically enacted and enforced by
the State while the precedent has its origin in
ancient and historic judicial pronouncements.
2. Legislation has an authoritative force on courts by
the assembly. However, precedents are made by
the courts themselves.
3. Legislation signifies formal declaration of law by
the governing body though precedents are
acknowledgement and use of new standards of law
by courts in the administration of equity, justice
and good conscience.
4. Legislation is ordered before a case emerges.
However, the precedent appears simply after the
case has developed and taken for the choice of the
court.
5. Legislation is basically of an exhaustive
structure while the extent of legal precedent is
restricted to comparable cases as it were.
6. Legislation is commonly and
generally forthcoming while precedent
is retrospective in nature.
7. Legislation is announced or distributed before it is
brought into power, on the other hand, precedent
comes into power on the double, i.e. when the
choice is articulated.
8. Legislation is finished with the goal of
the lawmaking process yet it isn’t so on account of
the precedent. The precedent which incorporates
ratio decidendi and obiter dicta are expected to
settle a particular contest on the purpose of law
once for all.
9. It isn’t hard for people, in general, to realise the
law instituted by lawmaking body yet the
precedent dependent on the case law isn’t
effectively known to the general population. Now
and again, the attorneys who manage law are
themselves oblivious about the current case-law.
Therefore it makes a precedent of an ambiguous
nature.
 10. Legislation includes law-production by
deductive strategy while case-law is made by
resorting to an inductive technique.

Difference between Legislation and Customs as Sources

of Law
1. The presence of legislation is basically by law,
while customary law is wholly accepted in a
particular boundary.
2. Legislation is enacted out of hypothetical
standards. However, customary law becomes is
adopted because of its very well and long presence
in history.
3. Legislation as a source is indeed a long lasting
nature of law, as contrasted to the custom which is
the most established type of law and is followed by
a particular sect
4. The legislation is a fundamental characteristic for
a present-day society while the customary law was
created in a crude social order.
5. Legislation is finished, exact, written in the
structure and effectively open. However,
customary law is generally unwritten am non-
scriptum and is hard to follow.
6. Legislation results out of the deliberations while
custom develops inside the general public in the
ordinary course.
 Module 4
Justice

1. Introduction
In democratic systems, justice is given the highest place.
The word justice is derived from the Latin word “jus”
which means to “bind” to contract. The Greek word for
justice is “dike”. Justice stands for just conduct, fairness
or exercise of authority in maintenance or right.
Different interpretations are given to justice from time to
time. Some writers regard justice as virtue while others
hold it for equality'. Some consider it as rule of law'.
Justice is not only an integral part of political science, but
also of ethics, law, philosophy, etc.
Major Concepts of Justice: There are two major
concepts of justice. The first one, Numerical Concept of
Justice, gives equal share to all. The Greek City States
followed this concept. The holding of an office in this
system did not call for any special knowledge or
qualification. This concept was mooted by Jeremy
Bentham. The idea was everyone is to count for one,
nobody for more than one.
The next one is Geometrical Concept of Justice. It is a
concept of proportionate equality. It means equal share
to equal and unequal share to unequal. It means that the
distribution of power and patronage should be
proportionate to worth or contribution of the individual.
Pluto and Aristotle favoured this idea.
Plato’s Concept: Plato, the father of political philosophy,
in his “The Republic”, defined justice as one of
functional specialization. He was of the opinion that
justice was ethical or philosophical and not based on
conventional morality. According to him, an individual
render of justice performed his duties for which he was
fitted and trained for.
Plato, further, viewed justice as a quality of the soul and
habit of mind and aimed at an organic society. He
regarded justice as the supreme virtue. Plato opined that
justice was something internal, and it existed in the
individual and in the state. Justice was the bond which
held a society together. Plato's theory of justice was
universal in character.
2. Types of Justice
1. Social Justice: Social Justice is taken to mean that all
the people in a society are to be equal and there is be no
discrimination on the basis of religion, caste, creed,
colour, sex or status. Barker said that social justice is
another name for equal social rights. Social Justice aims
to provide equal opportunities to every individual to
develop his inherent qualities.
2. Economic Justice: Economic Justice is indeed closely
related to social justice because economic system is
always an integral part of the social system. Economic
justice demands that all citizens should have adequate
opportunities to earn their livelihood. They should get
fair wages as can enable they to satisfy their basic needs
and help them to develop further. The state should
provide them economic security during illness, old age
and in the event of a disability.
3. Political Justice: Political justice means giving equal
political rights and opportunities to all citizens to take
part in the administration of the country. Citizens should
have the right to vote and to contest elections without any
discrimination on the basis of religion, colour, caste,
creed, sex, birth or status.
Distributive Justice: According to Aristotle, distributive
justice implies that the state should divide or distribute
goods and wealth among citizens according to merit.
Distributive justice includes affirmative action such as
recruitments and promotion in government services,
admission to public educational institutions, seats in
legislature, welfare, free education and other goods and
opportunities and they are distributed amongst the
members of the society.
The simple approach, with regard to the theory of
distributive justice, was made by the 20th century
American political philosopher John Rawls in his
books A Theory of Justice and Political Liberalism.
Rawls introduced the concept of justice as fairness which
consisted of liberty and equality. Equality is subdivided
into
• fair equality of opportunity; and
• the difference principle.

This doctrine is appropriate for the forms of government

which neglects the basic rights and interests of the
minority.
Legal Justice: It has two dimensions-the formulation of
just laws and then to do justice according to the laws.
Legal Justice means rule of law and not rule of any
person. It includes two things: that all men are equal
before law, and that law is equally applicable to all.
While making laws, the will of the rulers is not to be
imposed upon the ruled. Laws should be based on
public opinion and public needs. Social values, morality,
conventions, the idea of just and unjust must be always
kept in view.

3. Theories of Justice
Mill’s Utilitarian Theory of Justice: The concept of
utilitarian justice can be found in the
work “Utiltarianism” by John Stuart Mill. Mill said that
justice was a subset of morality—“injustice involves the
violation of the rights of some identifiable individual”.
Utilitarians see justice as part of morality and don’t see
justice to have a higher priority than any other moral
concern. Utilitarians often advocate for social welfare
because everyone’s well-being is of moral interest and
social welfare seems like a good way to make sure
everyone flourishes to a minimal extent.
Utilitarians often advocate free trade because (a) free
trade can help reward people for hard work and
encourage people to be productive, (b) the free market
allows for a great deal of freedom, (c) freedom has a
tendency to lead to more prosperity, and (d) taking away
freedom has a tendency to cause suffering.
Nozick’s Theory of Justice: This theory affirmed that we
have negative rights (to be left alone) but denies that we
have positive rights (to social welfare or education).
Nozick says taxation is a form of coerced redistribution
of wealth and it’s unjust because we have a right to
property and we don’t have a right to social welfare.
John Rawls’s Theory of Justice: Rawls described his
theory of justice called “Justice as Fairness” in his book
“A Theory of Justice”. He suggested a new way to learn
about principles of justice—the original position. The
original position asks us to imagine that a group of
people will get to decide the principles of justice. These
people don’t know who they are. Rawls calls it ‘veil of
ignorance’. They are self-interested, and they know
everything science has to offer. Rawls argues that they
want to enforce principles of justice that will “fairly
distribute” certain goods that everyone will value—what
Rawls calls “primary social goods”.
Rawls argues that the people in the original position will
discuss which principles of justice are best before voting
on them, and the best principles worth having will reach
a “reflective equilibrium”. In this process, the most
intuitive principles will be favoured and incompatible less
intuitive principles will have to be rejected in order to
maintain coherence. He then lays down two intuitive
principles of justice in particular which will reach
reflective equilibrium:
1. Each person is to have an equal right to the most
extensive total system of equal basic liberties
compatible with a similar system of liberty for all.
2. Social and economic inequalities are to satisfy two
conditions: first, they are to be attached to positions
and offices open to all under conditions of fair
equality of opportunity; and second, they are to be
the greatest expected benefit of the least advantaged
members of society.
4. Administration of Justice
Administration means management and justice means to
right and equitable implication. By the administration of
justice is meant the maintenance of right with in a
political community by means of the physical force of the
state. For sound administration of justice, physical force
of the state is prime requirement.
According to Salmond, a state with reference to its
territory as a society of men established for the
maintenance of order and justice within a determined
territory by way of force. The main function of the
administration of justice is the protection of individuals'
rights, enforcement of laws and punishment of criminals.
It is the social nature of men that inspires him to live in a
community. However, living in a society leads to conflict
of interests and gives rise to the need for Administration
of Justice. Once the need for Administration of Justice
was recognized, the State came into being.
Initially, the State was not strong enough to regulate
crime and impart punishment to the criminals.
According to Hobbes “that a common power is
necessary to keep people with in control in the
community. He says, unless man is under “a common
power to keep them all in awe”.
The main object of the administration of civil justice is to
provide relief by way of compensation or other relief to
the injured party. The rights enforced by civil
proceedings are of two kinds- Primary Rights and
Sanctioning Rights.
5. Types of Administration of Justice
Administration of Justice is the primary functions of the
State and it is generally divided into administration of
Civil Justice and Administration of Criminal Justice.
There are two types of wrongs, civil wrongs and criminal
wrongs. Criminal wrongs are public wrongs while civil
wrongs are private wrongs.
Civil Administration of Justice: The main object of the
administration of civil justice is to provide relief by way
of compensation or other relief to the injured party.
Basically, it is a right in persona. The rights enforced by
civil proceedings are of two kinds- Primary Rights and
Sanctioning Rights.
Criminal Administration of Justice- The administration
of criminal justice is to punish the offender. Punishment
may be described as the infliction by State authority, of a
consequence normally regarded as an evil (imprisonment
or death) on an individual found to be legally guilty of a
crime. In the primitive society, the basis objective of
justice was to inflict punishment on the offenders of a
crime. The punishment was very severe. An eye for eye
and a tooth for a tooth was part of the administration of
justice. The objective was to prevent the future crimes.
But now, the punishment system is based on strict legal
rules.
6. Benefits & Drawbacks of Administration of Justice:
Administration of justice brings uniformity and
consistency in the law and it causes a systematic
development of law.
The Rules of law represent the collective wisdom of
community therefore, in following them there are little
chances of going wrong.
As the rules are fixed, it helps judge in applying the law
uniformly.
As the law is known to the citizen, it enables them to
regulate their conduct in accordance with it.
But the main disadvantages is that it is rigid. The rate of
change in the society is always more rapid than the rate
of change in the Legal Justice.
Legal Justice is full of technicalities and formalities.
Legal Justice is complex. Our society is complex too.
Thus, to meet the needs of the society, we need complex
laws.
Salmond said that ‘law is without doubt a remedy for
greater evils yet it brings with it evils of its own’.
7. Theories of Punishment
The main purpose of administration of justice is to
punish the wrongdoer. It is the State which punishes the
criminals. From the ancient times, a number of theories
have been given concerning the purpose of punishment.
Punishment is a process by which the state inflicts some
pain to the persons or property of person who is found
guilty of Crime.
Deterrent Theory: Salmond said that the deterrent
aspect of punishment is extremely important. The object
of punishment is not only to prevent the Evildoer from
committing the crime again but also to make him an
example in front of the other such persons who have
similar criminal tendencies.
Even in Manu Smriti, the Deterrent Theory is
mentioned. Manu said “Penalty keeps the people under
control, penalty protects them, and penalty remains
awake when people are asleep, so the wise have regarded
punishment as the source of righteousness”.
Criticism: There is a lot of criticism of the deterrent
theory of
punishment in modern times. It has been criticized on
the grounds that it has proved ineffective in checking
crimes and also that excessive harshness of punishment
tends to defeat its own purpose by arousing the sympathy
of the public towards those who are given cruel and
inhuman punishment. Hardened criminals are not afraid
of punishment. Punishment losses its horror once the
criminal is punished
Preventive Theory: This theory believes that the object
of punishment is to prevent or disable the wrongdoer
from committing the crime again. Deterrent theory aims
at giving a warning to the society at large whereas under
Preventive Theory, the main aim is to disable the
wrongdoer from repeating the criminal activity by
disabling his physical power to commit crime.
The supporters of this theory recognize imprisonment as
the best mode of punishment because it serves as an
effective deterrent as also a useful preventive measure.
According to Paton: “The Preventive theory concentrates
on the prisoner and seeks to prevent him from offending
again in the future. The death penalty and exile serve the
same purpose.
Criticism: Critics points out that Preventative
Punishment has the undesirable effect of hardening first
offenders, or juvenile offenders, when imprisonment is
the punishment, by putting them in the association of
Harden Criminals.
Reformative Theory: This theory believes that
Punishment should exist to reform the criminal. Even if
an offender commits a crime, he does not cease to be a
human being. He might have committed the crime
under circumstances which might never occur again. The
object of the punishment should be reform the offender.
The criminal must be educated and taught some art or
craft or industry during his term of imprisonment, so that
they may be able to lead a good life and become a
responsible and respectable citizen after release from jail.
Criticism: Critics of this theory state that if Criminals are
sent to prison to be transformed into good citizens, a
prison will no longer be a 'prison' but a dwelling house.
This theory has been proved to be successful in case of
young offenders.
Retributive Theory: In primitive societies, the
punishment was mostly retributive in nature and the
person wronged was allowed to have his revenge against
the wrongdoer. The principle was “an eye for an eye”.
According to Justice Holmes It is commonly known that
the early forms of legal procedure were grounded in
vengeance. According to Sir John Salmond, the
retributive purpose of punishment consist in avenging
the wrong done by the criminal to society.
Criticism: Critics of retributive theory points out that
punishment per se is not a remedy for the mischief
committed by the offender. It merely aggravates the
mischief. Punishment in itself evil and can be justified
only on the ground that it yields better result. Revenge is
wild justice. Retribution is only a subsidiary purpose
served by punishment.
Theory of Compensation: This theory believes that
punishment should not only be to prevent further crime
but it should also exist to compensate the victim who has
suffered at the hands of the wrongdoer. However, critics
say that this theory is not effective in checking the rate of
crime. This is because the purpose behind committing a
crime is always economic in nature. Asking the
wrongdoer to compensate the victim will not always
lower the rate of crime though it might prove beneficial
to the victim.
Criticism: Critics points out that it tends to oversimplify
the motive to crime.
8. Functions of Courts and Administrative Tribunals
The courts play a prominent role in law-making. It is
responsible for safeguarding the rights of the people. It
also provides advice to the executive and legislative
bodies. Whenever there is a dispute between the state
and the central, the Judiciary resolves it.
Tribunals are institutions established for discharging
judicial or quasi-judicial duties. The objective of tribunals
may be to reduce case load of the judiciary or to bring in
subject expertise for technical matters. Another objective
is to provide speedy and inexpensive justice to the
employees on their grievances relating to service matters.
Administrative tribunals must have a statutory origin.
They must have some features of the ordinary courts,
but not all.

Court Administrative Tribunal

A court of law is a part of the The administrative tribunal is
traditional judicial system. an agency created by a statute
endowed with judicial powers.
A court of law is vested with It deals with service matters and
general jurisdiction over all is vested with limited
matters. jurisdiction to decide a
particular issue.
The courts follow a uniform, There is no uniform procedure
fixed statutory procedure. that the administrative tribunals
are required to follow to
exercise adjudicatory powers.
The court exercises only Administrative tribunals
judicial functions. undertake various other
administrative functions.
 All courts are tribunals, but all Tribunal is wider than court.
tribunals are not courts.
It can decide the validity of It cannot decide the validity of
legislation. legislation.
The courts do not follow Many tribunals perform
investigatory or inquisition investigatory functions as well,
functions, rather it decides the along with their quasi-judicial
case on the basis of evidence. functions.
The decision of the court The decision is subjective, i.e.
is objective in nature, at times, it may decide the
primarily based on the matters taking into account the
evidence and materials policy and expediency.
produced before the court.
It is presided over by an It is not mandatory in every
officer expert in the law. case that the members need to
be trained and experts in the
law.

9. Alternate Dispute Resolution Mechanism

An alternate dispute resolution mechanism is a
structured process that addresses disputes or grievances
that arise between two or more parties engaged in
business, legal, or societal relationships. A dispute
resolution mechanism must at a minimum be
 • Legitimate: a mechanism must have sufficiently
independent governance structures to ensure that
no party to a particular grievance process can
interfere with the fair conduct of that process.
• Accessible: a mechanism must be publicized to
those who may wish to access it.
• Predictable: a mechanism must provide a clear
and known procedure with a time frame for each
stage and clarity on the types of process and
outcome it can (and cannot) offer.
• Equitable: a mechanism must ensure that
aggrieved parties have reasonable access to
sources of information, advice and expertise
necessary to engage in a grievance process on fair
and equitable terms;
• Rights-compatible: a mechanism must ensure that
its outcomes and remedies accord with
internationally recognized human rights
standards;
• Transparent: a mechanism must provide
sufficient transparency of process.

10. Types of Alternate Dispute Resolution Mechanism

Collective Bargaining: Collective bargaining is probably

the most effective method of resolving industrial
disputes. The bargaining is collective in the sense that the
chosen representative of the employees (i.e. the union)
acts as a bargaining agent for all the employees in
carrying out negotiations and dealings with the
management. Collective bargaining benefits both
employees as well as employers.

Arbitration: It is a procedure in which a neutral third

person studies the situation, listens to both the parties
and gathers information, an then makes
recommendations that are binding on the parties.
Arbitration is effective as a means of resolving disputes
because it is established by the parties themselves and
the decision is acceptable to them. Secondly, it is
relatively expeditious when compared to courts or
tribunals. Delays are cut down and settlements are speed
up.

Conciliation: It is a process by which representatives of

workers and employers are brought together before a
third party with a view to persuade them to arrive at an
agreement by mutual discussion between them. The
alternative name for third party is mediators. It may be
stated that the conciliator has no power to force a
settlement, but can work with the parties separately to
search for solutions, and generally facilitates the reach of
an agreement. Mediators act as communications catalyst.

Adjudication: It means a mandatory settlement of an

industrial dispute by a labour court or a tribunal.
Generally, the government refers a dispute or
adjudication depending on the failure of conciliation
proceedings. Section 10 of the Industrial Disputes Act,
1947, provides for reference of a dispute to labour court
or tribunal. Once a dispute is referred for adjudication,
the verdict of a labour court or tribunal is binding on
both the parties. But this method has been criticized
because of the delay involved in resolving conflicts.
 Module 5

Legal Concepts

1. Person

Any living human being either male or female is a

person. In old Roman law, slaves were not supposed to
be person because they did not possess rights. In legal
term, a being who is capable to possess rights and
obligation and liabilities is a person. All human beings
are persons. Any being whom law regards as capable of
rights and duties is a person.
Kinds of persons
There are two kinds of person in law.
• Natural persons
• Legal person
Natural Person
All the human beings are natural persons. The entire
male and female are persons. All the living beings which
are recognized as person by the State, are persons in law
and persons in fact.
Legal Person
Legal persons are created artificially and law regards
them as legal person. They are persons only in the eyes
of law. They are also created by legal fiction so called as
fictitious also. They are also called juridical,
conventional, imaginary, and they have rights and
obligations as natural person. They can sue and be sued.
Status of Animal as Legal Person
They are not persons because they do not possess rights
and obligations. Some people say that they are persons
because law prohibits cruelty to them. They should be
treated sympathetically and kindly. But this is our
cultural heritage and the duty of society and not the duty
of animals. Rights always correlate with duties. Since they
do not have any duty, they do not possess any duty and
hence they are not persons In the ancient Roman law, a
rooster was prosecuted and punished. But in modern
law, master of animals can be sued and punished and not
the animals itself.
Status of Idol as Legal Person
Gods are recognized as persons only for lawful purposes
and thus named as 'Legal/Juristic Person'. But, a deity is
considered as a person only after its public consecration.
Such deities enjoy property rights, are liable to pay taxes,
can fight legally and can also be sued.
Status of Dead Human Beings as Legal Person
They cease their rights and obligation at the moment
they go away from this world. They are immune from
duties and not subject of rights after death. Law
recognizes the compliance of will, burial ceremony, no
defamation of dead person and no desecration of graves.
But despite of this fact, they are not persons and these
duties lie to their legal heirs or living society members.
Status of Unborn Baby as Legal Person
In civil law they can sue after they are born through their
next friends or at attaining the age of majority.
A child in womb has certain rights and inherits property.
All these rights are applicable subject to his or her birth.
• The child can claim damages after birth, for the
injuries he received before birth.
• He or she can claim compensation for the death of
his father or mother in fatal accidents.
• He or she inherits property even though his father dies
before his birth.
• He or she is a natural person even if his or her birth is
only for a moment.
• A woman cannot be punished after conviction if she is
pregnant, till birth of the baby.
Kinds of Corporation
• Corporation aggregate
Corporation aggregate is a group or collection of persons
who become joint to accomplish a task. Even all the
members of this corporation die, the corporation will
remain live and continue until death by law. Common
example of this corporation is Municipal Corporation or
registered company.
• Corporation sole
Corporation sole is series of successive persons or
individuals. It consists of only one person at a time like
King, Postmaster General, Assistant Commissioner or
Prime Minister. When a person dies, second one comes,
fills in vacancy and performs functions. After the death
of office holder, for the time being, office becomes
dormant or inactive. Only when the other person fills in
the position, it becomes active again.
Theories of Corporate Personality

There are many theories of Corporate Personality.

Different Jurists propounded different theories to
explain the nature of Corporate personality, but the best-
known theories of a Corporate Personality are as follows

1) Fiction Theory:
The Fiction theory was propounded by Savigny.
According to Savigny "a personality is attached to
corporations, institutions and funds by a pure legal
fiction. The Personality of the corporation is different
from the personality of its members, that means there is
a double fiction in the case of corporation. Salmond and
Holland are the supporters of this theory. According to
Salmond, corporation is nothing more than the outcome
of metaphor and fiction. The main defect of this theory
is that it exists in the eyes of law only.

2) Realist theory: Realist Theory was propounded by the

great German Jurist Gierke. It was followed by Sir
Fredrick Pollock, Geldart, Maitland etc. According
to Gierke, Corporation is a real but mysterious entity,
every group has a real mind, a real will and real power of
action. According to this theory, every group comes to
have personality of its own whether that group is social or
political one.

3) Concession Theory: Salmond, Savigny and Dicey are

the main supporters of this theory. According to this
theory, the only realities are sovereign and individual. the
other groups cannot claim recognition as persons. they
are treated as persons merely by a concession and the
part of the sovereign. Legal personality is conferred only
by law. Corporate personality is nothing but a concession
given to group or body of individuals by law to act as one
body.

4) Purpose Theory: According to this theory, Personality

is only enjoyed by human being. German jurist Brinz
and Bekker are the main supporter of this theory.
Salmond criticised this theory, According to him, it is not
applicable to a corporation sole.

5) Bracket Theory: Ihering is the chief exponent of

Bracket theory. Bracket theory is also known as
symbolise theory. According to this theory, the members
of a corporation are the bearers of the rights and duties
which are given to the corporation for the sake of
convenience It is not always practicable or convenient to
refer to all the innumerable members of a corporation.
A bracket is placed around them to which a name is
given. That bracket is the corporation. The weakness of
this theory lies in the fact that it is not able to indicate
when the bracket may be removed and the mask lifted
for the purpose of taking note of the members
constituting the corporation.
2. Right

The Latin term for right is rectus which means ‘correct’.

Rights are the essential conditions for social life that lead
to overall development. Right means essential claims
recognized by the civilized society and are enforced by
the state. There are various forms of rights like natural
rights, moral rights, legal rights etc. Legal rights exist
under the rules of the legal system. Ordinarily, they are
recognized and protected by law enforced by the state.

John Salmond defines it as ‘an interest recognized and

protected by a rule or justice”.

John Austin observed that “a party has a right when

another or other is bound or obliged by law to do or to
forbear towards or regarding them’.

Dean Roscoe Pound observes that legal rights contains;

an interest which is secured and protected by law; a
recognized claim to act forbearances by another or by all
to make the interest effective; the capacity of creating or
altering rights; the privileges and liberties and as an
adjective, it is meant to give effect to recognize and give
effect to moral rights.
The High Court of Madras in Daniel v State explained
the main contributes of the legal right as follows; In the
strict sense of the term, a legal right is an ascertainable
claim which is enforceable by courts and justice
administration agencies. In its wider sense, it has to be
understood as any advantages or benefits conferred upon
a person by rule of law.

Every right involves a three-fold relation when viewed

from the point of view of the owner:

i. It is a right against some person or persons

ii. It is a right to some act or omission of such
person or persons
iii. It is a right over or to something which that act
or omission relates to.

Theories of Rights
There are three main theories regarding the nature of
legal rights, they are;

1. Will Theory of Rights

This theory is supported by Hegel, Kant, Hume and

others. According to this theory, a right is an inherent
attribute of the human will. Right is the will of an
individual. Man expresses his will over an object through
rights. This theory extended the natural rights by
declaring that the State could not legally interfere with
certain spheres of personal life. It is the function of law
to confer certain powers or allow certain freedom to
individuals in the form of legal rights.

Duguit does not agree with this theory and criticizes it by

suggesting that will is not an essential element of a legal
right or law. The real basis of law is social solidarity. He
also calls the theory of subjective rights a mere
metaphysical abstraction.

Interest Theory of Rights

This theory is propounded by the German Jurists Rudolf

Van Ihering. According to this theory, “a legal right is a
legally protected interest”. According to him the basis of
the legal rights is the interest and not the will of the
person. The main objective of the law is to protect the
individual interest and the conflicts between them.

Salmond criticized this theory on the ground that it

completely overlooked the element of recognition by the
state. According to him, a legal right should not only be
protected by the State but also be recognized by it.

Dr. Allen has attempted to blend both these theories by

pointing out that the essence of a legal right seems to be
legally guaranteed power to realize an interest. This
theory considers both will and interest as an essential
ingredient of the legal right.
Protection Theory of Legal Rights

This theory completely denies the existence of any legal

rights. As per this view, there are no separate rights and
an individual has no separate existence of its own. Rights
are granted by the States they belong to and individuals
do not have any independent legal rights as such. Not
much importance should be given to the individual as
the State is the only real thing. This theory has been
rejected as it is far from the reality of the modern society
of democratic welfare states where rights are very
important.

Elements of Legal Rights

According to Salmond, legal rights have the following
essential elements;

Owner of the Right: It is called as the subject of the right

or the person of inherence. There must be a person who
is the owner of the right. A legal right is always vested in a
person. However, the rights don’t need to be certain or
determinate. An unborn possesses a legal right even
though it is not certain whether he would be born alive
or not.

Person of Incidence: It is also known as the subject of

the duty. He is bound by the duty and he is to act or
forbear for the benefit of the right. For example, where
A has a particular right against B, A is the person of
inherence and B is the subject of the incident.

Content of the Right: There are certain positive and

negative acts necessary for the fulfilment of the right. It
may be an act or omission. It is also called the substance
of the right.

Subject Matter of the Right: It is the object or subject

matter over which the right is exercised. It is something
to which an act or forbearance relates. Right accrues over
things like money, goodwill, land, property etc.

5. Title of the Right: Title is the name given to the legal

right that shows the owner of the right. Every legal right
has some title. Facts must show how the right is vested in
the owner of the right.

Various Types of Legal Rights

There are various kinds of rights classified by different
jurists.

Perfect and Imperfect right

A perfect right is enforceable by the court of law.

According to Salmond, a perfect right corresponds to a
perfect duty. An imperfect right, on the other hand, is
recognized by the State but is not enforceable by the law.
It is incapable of legal enforcement; they are not
perfect. Imperfect rights are good for defence, though
not good as a ground for action. Example: Claims barred
by lapse of time, claims against foreign states or
sovereigns etc.

Positive and Negative Right

According to the nature of the co-relative duty, rights are

classified into positive and negative rights. In the positive
right, a person is duty bound to perform something. In
the negative right, people are restrained from doing
something. They have negative duties corresponding to
them. A positive right aims at some positive benefit but
a negative right aims at not to be harmed. Positive rights
have a mediate relation to the object whereas the
negative right has an immediate relation to the object.
Rights to receive damages or recovering money from the
debtor are examples of positive rights. A right to
reputation is a negative right as it imposes a negative duty
upon others not to interfere with it. .

Antecedent Right and Remedial Right

The rights that deal with the substantive law may be

divided into antecedent and remedial rights. Antecedent
rights exist irrespective of any wrong being committed.
For example, the purchase of any good has an
antecedent right over that good. Whereas a right that
accrues when antecedent rights are violated is known as
remedial rights. It involves relief in the form of
compensation for the violation of an antecedent right.

Right in Rem and Right in Personam

Right in Rem or real right, corresponds to a duty

imposed upon persons in general whereas Right in
Personam, personal right, corresponds to a duty
imposed on a determinate individual. A real right is
available against the whole world whereas a personal
right is available against a particular individual only.
Hence, Real Rights are more important than personal
rights. A person’s right for peaceable occupation and
reputation are right in rem whereas the right to receive
rent from the tenant and right under the contract is right
in personam.

Proprietary Right and Personal Right

The proprietary rights include a person’s estate and his

property in different forms. It possesses certain monetary
value and is an element of wealth. For example, right to
land, houses, right to goodwill etc. On the other hand,
personal rights are elements of well-being that do not
have any monetary value. For example, right to
reputation, personal liberty, right against bodily harm etc.
Proprietary Rights are alienable whereas personal rights
are not alienable. There exists a factor of inheritance in
proprietary rights that do not exist in the latter.
Proprietary rights are more static as compare to personal
rights.

Rights in Re Propria and Right in Re Aliena

Right in propria means right over one’s property and

right in re aliena means right over the other’s property.
In its widest sense, encumbrance is right in re aliena. All
other rights that are not limited are rights in re propria.
The owner of the chattel has the right in his property.
Pledge is right in aliena as it is right over the property of
someone else.

Principal Right and Accessory Right

Principal rights are independent. Accessory rights have a

beneficial effect on principle rights. For example, if an
owner of land has a right of way on the adjoining land,
the ownership of the land is his principal right and his
right to the way on the adjoining land is the accessory
right.

Legal Right and Equitable Right

In England, legal rights were recognized by the common

law courts and equitable rights were recognized by the
Court of Chancery that was the court of equity. Where
there is a conflict between the legal right and an equitable
right, the legal right will take precedence over the other.
The Indian Law, however, does not recognize a
distinction between these two rights.

Vested Right and Contingent Right

A vested right creates an imminent interest. The

difference between vested interest and contingent interest
is that vested interest happens when a certain incident
takes place. But in the case of a contingent interest, the
condition mentioned is very much uncertain and so the
transfer of property may or may not happen if the
condition is not fulfilled.

Public Right and Private Right

Rights vested in the State are called public rights. It is

enforced by the State as it is the interest bearer of the
public. A private right is concerned with private
individuals only. For example, an assault is a breach of
the private right of. But avoiding military service when
mandatory is an injury to the State and hence it is a
violation of the public right.

Hohfeld Analysis of Right

Wesley Newcomb Hohfeld’s analysis of right continues

to contribute significantly to our current understanding of
the nature of rights. Fundamental Legal Conceptions as
Applied in Judicial Reasoning and Other Legal
Essays was his seminal work. A chair at Yale University
is named after Hohfeld. Hohfeld’s theories are still
relevant today, even in India.

A ‘right’, according to Hohfeld, is a legal interest that

imposes a correlative duty. According to him, if X has a
right against Y to keep off the latter’s land, the correlative
(and equivalent) is that Y has an obligation toward X to
stay off the place. In the same way, a ‘privilege’ imposes a
comparable and correlative no-right, power imposes a
correlative liability and immunity results in handicap.
The contrast between a right and a privilege is
particularly important in this regard.

Hohfeld points out that the term ‘right’ was frequently

used to refer to a variety of other legal interests such as
power, privilege, and immunity. He proposes separating
rights, privileges, powers, and immunities, all of which he
considers to be separate legal interests. His definition
methodology is based on the usage of correlatives and
opposites. His analysis of right is majorly based on the
earlier system proposed by Salmond.
The vertical arrows connect jural correlatives, or ‘two
legal positions that entail each other,’ whereas the
diagonal arrows connect jural opposites, or ‘two legal
positions that deny each other.’

The first two pairs of legal positions (right/duty and

liberty/no-right) are first-order relations, while the
following two pairs (power/liability and
immunity/disability) are second-order relations. Some
first-order relations are directly applied to human
behaviour and social interactions without the use of any
second-order relations. All second-order relations, on
the other hand, are applied directly to human
entitlements and only indirectly to human behaviour and
social interactions.

3. Duty

Duty, the word finds its derivation from the word “due”
which means something which owed. In the legal scenario,
duty means a legal obligation to do or not to do something.
According to Salmond, a duty is an obligatory act, it is an
opposite of which would be wrong. Duties and wrongs are
correlatives. Supporting this, Fitzgerald has said, the
commission of wrong is breach of duty and performance
of duty is avoidance of wrong. According to Gandhiji, if
we discharge our duties, rights will not be far too seek.
Duty can be ethical, moral, cultural etc. in nature or either
a compulsion by the state, omission of which will result in
punishment by law. It is a concept that is prescribed -to be
followed but is not mandatory in nature. It is a
commitment which is moral towards someone and must
be performed for that individual. Cicero, an early Roman
philosopher who discusses duty in his work “On Duty”,
suggests that duties can come from four different sources:-
1. as a result of being a human
2. as a result of one’s place in life (one’s family, one’s
country, one’s job)
3. as a result of one’s character
4. as a result of one’s own moral expectations for
oneself.

Classification of Duties
Legal Duty and Moral Duty
A legal duty is opposite of a legal wrong and it is
recognized by the law for administration of justice.
Similarly, moral duty is an opposite of moral wrong, but is
not recognized by law but it is followed out of human
conscience and social perception. So, a duty can be legal,
but not moral and vice versa. So, by the operation of law
it is mandatory to perform a legal duty but not a moral
duty. For example, not selling adulterated milk is a legal
duty and not wasting paper is a moral duty. There is
punishment for former and not for latter.
Positive Duty and Negative Duty
When a person is enforced to perform a duty, the duty is
called positive duty. Whereas, when the law asks the
person from refraining in involving or undertaking a
particular act, such duty is called negative duty. For
example – to pay debt is a positive duty whereas, not to
trespass on third person’s land is a negative duty.
Primary Duty and Secondary Duty
Primary duty is one which doesn’t need to be stated, it
exists on its own. Whereas, Secondary duty is one which
exists only for giving the way to other duties thus, having
no independent existence. For example – Not to cause
injury to another person is the primary duty, but to pay
damages as a result of injury caused is the secondary duty.
Absolute Duty and Relative Duty: Absolute duties are the
one which are not followed by a right. Relative duties are
the duties which come with a bond and are followed by
right. Thus, a relative duty cannot exist without a right.
Austin stated four kinds of absolute duties; duties to those
who are not human beings, duties towards public at large,
self-regarding duties and duty towards State or sovereign.

4. Obligation

The word originally derives from the Latin term “obligare.

Salmond defines obligations as the vinculum juris, or
bound of legal necessity which binds together two or more
determinate individuals. According to Savigny, an
obligation is “the control over another person, yet not over
his person in all respects, but over a single act of his which
must be conceived of subtracted from his free will and
subjected to our will”. Obligation under jurisprudence can
be defined as a duty in personam but not a duty in rem.
In general, the former requires the obligation to pay a
debt, to enforce a contract or pay for damages in tort.

Kinds of Obligation

Contractual Obligation

According to Section 2(h) of the Indian Contracts Act,

contracts are the agreements enforceable by law. Under a
contract, the contracting parties have the obligation to
meet the obligations they have established on each other.
It creates right in personam between the parties.

Delictual Obligation

Delictual obligations are the duty of making pecuniary

satisfaction for the wrong, i.e. tort committed by the
defendant. Such a duty is established by law and if
individuals do not comply with their duty and cause harm
to other individuals, then the person against whom tort is
committed has the right to claim unliquidated damages
from the one who didn’t comply with such duty.
Quasi-Contractual Obligation

These are the obligations arising out of contracts. These

obligations are regarded by law as contractual though they
are not so in fact. Primordial in Roman Law such
obligations were called obligationes quasi ex contractu,
whereas in English law, they are called quasi-contractual.

Innominate Obligation

Salmond defines innominate obligation as residuary class

of obligation. Innominate obligations are those which are
not purely contractual, delictual or quasi contractual. This
means they do not have a particular designation or term.
For Instance, trustee ‘s obligation to the beneficiary.

5. Title

Title is derived from “titulus” of Roman law and “titre”

of French law. Title is a link between a person and an
object to establish ownership of property. It is the source
from which a right originates. A title is a set of facts by
reason of which a right has become the subject matter of
ownership. A title is a document that shows legal
ownership to a property such as a car or an intangible
property like trademark. Title is created even of stolen
objects. It is right of ownership in fact and in law over
property. According to Salmond, title is the fifth element
of a legal right. He said Every legal right has a title, that is
to say, certain facts or events by reason of which the right
has become vested in its owner.
Kinds of Title
Investitive Title
Investitive facts create rights. As a result of investitive
facts, a right comes to be vested on its owner. Investitive
titles are further divided into original titles and derivative
titles.
Original Title: A right may be created de novo and it
may have no previous existence. This right is created first
time on the objects, which are ownerless. Such a right is
called an original title.
Derivative Title: If a right is created by the transfer of an
existing right, it is called a derivative title. This right is
second right, which is created after gone away of original
right.
Divestitive Title: Divestitive titles are divided into
alienative facts and extinctive facts.
Alienative Derivative Title: The facts of which the legal
result is to transfer right from the owner are called
alienative derivative facts.
Extinctive Derivative Title: The facts of which the legal
result is to destroy rights are called extinctive divestitive
title.
6. Liability

Liability is the condition of the person who has

committed a wrong. Salmond defines liability as, ‘the
bond of necessity that exists between the wrongdoer and
the remedy of the wrong'. The task of law is not finished
only by laying down rights and duties. It ensures their
protection, enforcement and redress also. Therefore,
liability is a very important part of the study of law.

Civil & Criminal Liability

Civil liability accrues on an accused if he commits a civil
wrong – like negligence defamation etc. While Criminal
liability accrues to an accused if he commits a criminal
offences like murder, sedition, theft, rape etc.

Civil liability determined under the CPC while Criminal

liability is determined under Cr.PC.
The legal remedy for a civil wrong is payment of
compensation or damages by the wrong doer to the
victim. The legal remedy for a Crime is the giving of
punishment to the offender by the State.
Civil cases are decided by the standard of preponderance
of probabilities while in criminal cases the guilt of the
accused has to be proved beyond reasonable doubt.
Remedial Liability: It is based on the maxim “Ubi jus ibi
remedium”, which means that “where there is a right
there is a remedy.” If a right has been conferred by law,
then the law must also provide a remedy to enforce or
claim that right. Similarly, if a duty has been imposed by
the law, then the law must also ensure its fulfilment. If
there is a breach of duty, there ought to be some remedy
prescribed and enforced by law.
Penal Liability: It is based on the maxim “ actus non facit
reum nisi mens sit rea”, which means that an act alone
does not make a person guilty unless & until it is
accompanied with a guilty mind”. If the guilt of an
accused is established in a criminal case, the court
awards him appropriate punishment which may be
simple imprisonment, rigorous imprisonment, fine,
death penalty etc.
Strict Liability
The rule of strict liability evolved in the year 1868, in the
case of Rylands Vs. Fletcher case. According to this
principle, if someone (defendant) keeps or brings
hazardous substances on his premises, then he will be
held responsible if the substances escape the premises
and it harms another person (plaintiff). Although there is
no negligence on the part of the defendant, he has no
intention to harm another person. This means that the
prima facie liability is of that person who keeps the
hazardous substances.
In these situations, even the defence of an unavoidable
accident is not a genuine defence. This is called the
principle of strict liability. Further, in the case of strict
liability, the burden of proof is always on the defendant.
This means that the defendant has to prove why he is not
liable to pay the damages. Also, there is no need to
prove fault, negligence or intention. The claimant is
required to prove that tort took place and the defendant
is responsible for the same.
Absolute Liability
When a profit-making enterprise is indulged in carrying
out any inherently dangerous activity, and if any damage
is caused to any party, the defendants, i.e. the company
owners will be completely responsible for that damage.
So, they have to pay compensation to the aggrieved
party. Further, the undertaking will be liable for all
possible damages or consequences arising out of that
activities.
The essence of this law is to make such industries supply
all the necessary safety equipment and follow all the
safety measures to prevent the workers from any mishap.
So, this is to protect the interest of the workers and also
to provide them with a safe working environment.
The Supreme Court of India created the doctrine of
absolute liability, in preference to the doctrine of strict
liability in M C Mehta Vs Union of India case. This
decision was made by the court after two major gas leaks:
• Escape of Methyl Isocyanate from Union Carbide
Plant – Bhopal Gas Tragedy
• Leakage of Oleum Gas from one of the units of
Sriram Food and Fertilizers Industries
Because the first incident caused great damage to
thousands of people, the Supreme Court of India was in
fear that the industries that deal with hazardous
substances would be free from the liability for damages
that took place due to the leakage of deadly gases,
because of the exceptions under strict liability. This gave
birth to the doctrine of absolute liability. So, it is also
based on three principles which are:
• Enterprise
• Hazardous Activity
• Escape not necessary
There are no exceptions in the case of absolute liability.
The quantum of damage is always proportional to the
size of the enterprise.
Vicarious Liability
Vicarious liability is a situation in which one party is held
partly responsible for the unlawful actions of a third
party. The third party also carries their own share of the
liability. The word vicarious is used here to describe the
fact that the liability imposed in indirect. Probably the
most common case of vicarious liability comes from the
employer-employee relationship. It is referred to as
respondeat superior. The employer is held liable for the
unlawful actions of an employee if the conduct occurs
during the scope of the employee's work. A good
example is the Exxon Valdez oil spill.
Also sometimes referred to as imputed liability, vicarious
liability states that any party who is in an authoritative
legal relationship with another party is legally responsible
if their actions cause harm to the other party. Third-party
vicarious liability can occur if it can be proven that a
client or customer was caused harm in the name of, on
behalf of, or under direction from, the company in
question. It’s important to note that an employer can still
be found vicariously liable for an employee’s actions
even after the departure of the offending employee from
the firm.
There are a variety of actions that can cause harm and
that an employer could be held vicariously liable for.
They include
• Breach of copyright
• Libel
• Harassment (sexual or otherwise)
• Slander
• Breach of confidentiality
• Bullying
 • Physical abuse/causing of bodily harm
• Mental abuse

7. Possession
Possession is an evidence of ownership. "Possession"
literary means physical control over a thing or an object.
It expresses the closest relation of fact that can exist
between a thing and the person, who possess it. In law,
possession means it includes not only physical control
over a thing but also an intention to exercise that physical
control. The person who is in possession is called a
'Possessor'.
The Supreme Court in Superintendent Remembrancer
Legal Affairs vs Anil Kumar, AIR 1980 SC 52, held that
it is impossible to work out a completely logical and
precise definition of Possession uniformly applicable to
all situation in the context of all the statutes. Salmond
defines Possession as, " the continuing exercise of a claim
to the Exclusive use of an object." Savigny defines
Possession as, "intention coupled with physical power to
exclude others from the use of material object. Sir
Frederick Pollock defines Possession as, "In common
speech a man is said to possess to be in possession of
anything of which he has the apparent control from the
use of which he has apparent power for excluding
others."
Elements of Possession

Possession has two essentials;

1) Actual power over the object possessed. i.e. corpus

possessionis and

2) Intention of the possessor to exclude any interference

from others. i.e. animus possidendi.

According to John Salmond,

both corpus and animus must be present to constitute
Possession. Ownership is a legal concept whereas
Possession is factual as well as legal concept.

Categories of Possession: Possession is divided into

two categories.

a) Possession in fact and

b) Possession in law.

Possession in fact is actual or physical possession.

It is physical relation to a thing. Possession in law means
possession in the eye of law. It means a possession which
is recognized and protected by law. There is sometimes a
discrepancy between possession in fact and position in
law, although usually possession exists both in fact and in
law in the same person. A person who is in de
facto possession of a thing also comes to have de jure
possession.

Modes of Acquiring Possession:

There are two modes of acquiring possession i) Delivery

and ii) Taking.

i) Delivery: Delivery completes voluntary act from one

person to another. The transferor gives actual position to
the transferee. It is usually a lawful mode of possession.
Delivery may be actual of constructive. In actual delivery
the thing is physically delivered.
ii) Taking: Taking implies an Act exclusively on the part
of the person who physically takes the possession. It is
acquisition of the possession without the consent of
previous possessor. It is the possession without the
consent of the Possessor. It is usually possessio-civilis. It
may or may not be lawful. If it is lawful then it is legal
possession. i.e. possessio-juri.

Possessory Remedies

Possessory Remedies are those which exists the

protection of Possession even against ownership.
Proprietary remedies are those which are available for
the protection of ownership. In many legal systems,
possession is provisional or temporary title even against
the true owner. Even a wrongful Possessor who is
deprived of his possession can recover it from any
person whatsoever on the ground of his possession. Even
the true owner, who retakes his own, must first restore
possession to the wrongdoer and then proceed to secure
a possession on the ground of his ownership. The
relevant case law is Elves v. Brigg Gas Co. 1886
Chancery Division.

Types of Possession

Corporeal Possession: Corporeal possession is the

possession of material things, movable as well as
immovable such as car, book, pen, wristwatch, land etc.

Incorporeal Possession: It means Possession of

immaterial or intangible things. These are the things,
which do not have physical existence and therefore
cannot be perceived by our senses. Therefore,
possession in respect of this thing is known as
incorporeal possession. For Copyright: Trademark,
Patent, Goodwill etc. According to Salmond, corporeal
possession is possession of an object whereas incorporeal
possession is the possession of a right.

Mediate Possession: It is the possession of a thing

through another, either through his friend, servant or
agent. As the thing remains in possession with another,
the possessor has lesser degree of physical control over
such thing.
Illustration: 'X' has a car, which he leaves with his driver.
The possession of the driver will be immediate whereas
the possession of 'X' will be mediate.

Immediate Possession: It is also called as direct

possession. In immediate possession, as the thing is in
possession of the possessor directly, he has higher degree
of control over such thing. It means that there is no other
person holding the thing.

Illustration : 'X' has a car and he keeps it in his garage,

this constitutes immediate possession.

Constructive Possession: Constructive possession is not

actual possession it is a possession in law and not
possession in fact. According to Pollock and Wright, it is
a possession which arises only by the construction of law.

Eg: The delivery of the keys of a building.

Adverse Possession: It means holding the land on his

own behalf of some other person. if adverse possession
continues peaceful and undisturbed for that number of
years, he can claim ownership and the true owner's right
(ownership) gets extinguished. If a property is occupied
by someone for more than 12 years in India, he will have
the benefit of adverse possession and will have a claim
for a better title than the owner.

De facto Possession: De facto Possession exists where

the thing is in the immediate occupancy of a party. The
person in de facto possession has the physical control of
the thing to the exclusion of others and has Animus and
Corpus over the material object. De facto possession
may be described as actual possession.

De jure Possession: De jure possession can be described

as posssession in law. De jure possession exists when
person claims a thing as his own in natural normal legal
manner by occupying a thing without any dispute as to
his legal right to possess and enjoy the thing. Legal
possession may exist with or without property in
possession.
Res nullius: Res nullius means ownerless things or object
s. If a customer finds a lost wallet while shopping in a sto
re which
is not identifiable, can retain till reasonable time to wait it
s
true owner. He is obliged to bring this matter into the
knowledge of shopkeeper and give him his own address.
If true owner did not come till reasonable time, he will h
old title.

8. Ownership

Jurists have defined ownership in different ways. All of

them accept the right of ownership as the complete or
supreme right that can be exercised over anything. Thus,
according to Hibbert ownership includes four kinds of
rights within itself.
• Right to use a thing
• Right to exclude others from using the thing
• Disposing of the thing
• Right to destroy it.
Austin while defining ownership has focused on the
three main attributes of ownership, namely, indefinite
user, unrestricted disposition and unlimited duration.
• Indefinite User
• Unrestricted Disposition
• Unlimited Duration.
Austin’s definition has been followed by Holland. He
defines ownership as plenary control over an object.
According to him an owner has three rights on the
subject owned
• Possession
• Enjoyment
• Disposition
According to the Salmond, ownership vests in the
complex of rights which he exercises to the exclusive of
all others. For Salmond what constitute ownership is a
bundle of rights which in here resides in an individual.
Salmond’s definition thus points out two attributes of
ownership:
• Ownership is a relation between a person and right
that is vested in him
• Ownership is incorporeal body or form
KINDS OF OWNERSHIP
Corporeal and Incorporeal Ownership
Corporeal ownership is the ownership of a material
object and incorporeal ownership is the ownership of a
right. Ownership of a house, a table or a machine is
corporeal ownership. Ownership of a copyright, a patent
or a trademark is incorporeal ownership. The distinction
between corporeal and incorporeal ownership is
connected with the distinction between corporeal and
incorporeal things. Incorporeal ownership is described
as ownership over tangible things. Corporeal things are
those which can be perceived and felt by the senses and
which are intangible. Incorporeal ownership includes
ownership over intellectual objects and encumbrances.
Trust and Beneficial Ownership
Trust ownership is an instance of duplicate ownership.
Trust property is that which is owned by two persons at
the same time. The relation between the two owners is
such that one of them is under an obligation to use his
ownership for the benefit of the other. The ownership is
called beneficial ownership. The ownership of a trustee
is nominal and not real, but in the eye of law the trustee
represents his beneficiary. In a trust, the relationship
between the two owners is 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 ownership is called beneficial
ownership.
Legal Ownership and Equitable Ownership
Legal ownership is that which has its origin in the rules of
common law and equitable ownership is that which
proceeds from the rules of equity. In many cases, equity
recognizes ownership where law does not recognize
ownership owing to some legal defect. Legal rights may
be enforced in rem but equitable rights are enforced in
personam as equity acts in personam. One person may
be the legal owner and another person the equitable
owner of the same thing or right at the same time.
The equitable ownership of a legal right is different from
the ownership of an equitable right. The ownership of an
equitable mortgage is different from the equitable
ownership of a legal mortgage. There is no distinction
between legal and equitable estates in India.
Vested Ownership and Contingent Ownership
Ownership is either vested or contingent. It is vested
ownership when the title of the owner is already perfect.
It is contingent ownership when the title of the owner is
yet imperfect but is capable of becoming perfect on the
fulfillment of some condition. In the case of vested
ownership, ownership is absolute. In the case of
contingent ownership it is conditional. For instance, a
testator may leave property to his wife for her life and on
her death to A, if he is then alive, but if A is dead to B.
Here A and B are both owners of the property in
question, but their ownership is merely contingent.
Sole Ownership and Co-ownership
Ordinarily, a right is owned by one person only at a time.
However, duplicate ownership is as much possible as
sole ownership. When the ownership is vested in a single
person, it is called sole ownership; when it is vested in
two or more persons at the same time, it is called co-
ownership, of which co-ownership is a species. For
example, the members of a partnership firm are co-
owners of the partnership property. Under the Indian
law, a co-owner is entitled to three essential rights,
namely
• Right to possession
• Right to enjoy the property
• Right to dispose
Co-ownership and Joint Ownership
According to Salmond, “co-ownership may assume
different forms. Its 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 death of one of the co-
owners. If the ownership is common, the right of a dead
 man descends to his successors like other inheritable
rights, but on the death of one of two joint owners, his
ownership dies with him and the survivor becomes the
sole owner by virtue of this right of survivorship.
Absolute and Limited Ownership
An absolute owner is the one in whom are vested all the
rights over a thing to the exclusion of all. When all the
rights of ownership, i.e. possession, enjoyment and
disposal are vested in a person without any restriction,
the ownership is absolute. But when there are restrictions
as to user, duration or disposal, the ownership will be
called a limited ownership. For example, prior to the
enactment of the Hindu Succession Act, 1956, a woman
had only a limited ownership over the estate because she
held the property only for her life and after her death;
the property passed on to the last heir or last holder of
the property.

Sr.
No. Ownership Possession
Ownership is
an absolute authority over Possession is physical control over
1. the property. the property.
It holds unlimited and
uncontrolled rights over the
2. property. It is a limited concept of right.
It is a union of ownership It is a single concept giving no right
3. and possession of ownership.
4. It is a de jure concept. It is a de facto concept.
Ownership right is a wider Possession is a right of
5. concept. consumption only.
It is a perfectly legal right. It It is a possessory right only. It
6. shows legal situation. shows real position.
Transfer of ownership is not Possession is a comparatively easy
an easy process, but it needs process and practically no need to
legal or formal procedures, register and such formalities like
7. prerequisites of registration. ownership.
It has no technical It faces the technical obstacles for
8. obstructions to transfer. transfer.
Ownership cannot be carried
out practical use in the Possession may be a ground for the
9. absence of possession. ownership as well.
It consists the bundle of
rights and all the rights are It is prima facie a proof or evidence
10. right in rem. of ownership.
11. It is a guarantee by the law. It is a physical control over it.

9. Property
According to John Locke: “Every man has a property in
his person. Every individual has the right to preserve his
property, that is, his wife, liberty and estate.” Property
includes all the legal rights of a person. In its widest
sense, all animate or inanimate things belonging to a
person are included within the meaning of the term
property.
In a narrower sense, the property includes the
proprietary rights of a person. Proprietary rights
constitute his estate or property. However, another
interpretation of property is that the law of property is
the law of proprietary rights in rem. Going by this, a
freehold or leasehold estate or copyright also includes
the meaning of property. John Austin believed that
property can have different meanings at different times.
It could be the whole set of assets owned by a person
including both rights in-rem and rights in personam.

Kinds of Property

Corporeal Property
The other name for the corporeal property is tangible
property because it has a tangible existence. It relates to
material things. The right of ownership of a material
thing is the general, permanent and inheritable right of
the user of the property or thing. Further corporeal
property can be divided into two categories-

Movable
Chattels, for example, leases, to cows, to clothes etc are
movable property. It simply includes all corporeal
property which is not immovable.
Immovable
Land, for example, is an immovable property. According
to Salmond, an immovable piece of land has many
elements attached to it. It is inclusive of the ground
beneath the surface down to the centre of the world.
Interestingly, it also includes the column of space above
the surface ad infinitum.

Real and Personal Property

The difference between real and personal property is
similar to the difference between movable and
immovable property. Real property means all rights over
land recognized by law. However, personal property
means all other proprietary rights whether rights in rem
or rights in personam.

Incorporeal Property
Incorporeal property is intangible property. The other
terms frequently used are intellectual or conventional
property. It includes all those valuable interests which are
and can be protected by law. The need to recognise and
protect incorporeal property has been recognised in
recent times. The scope of the term property has
widened and it has come to include virtual property as
well. In modern times, a large share of a country’s
property can be found in the form of shares of a
company. Further incorporeal property is of two
kinds- rights in re propria and rights in re aliena.
Encumbrances

Right in re aliena are known by the name of

encumbrances. These are rights in rem over areas of
property owned by another person. These rights prevent
the owner from exercising some definite rights
concerning his property.
Salmond refers to the four kinds of encumbrances
namely lease, servitude, security and trust.

a. A lease is an encumbrance of property vested in one

person to the possession and use vested in another
person

b. A servitude refers to the right of limited use of pieces

of land. Land must be unaccompanied whether by the
ownership or by possession of it.

c. A security is an encumbrance vested in a creditor over

property of his debtor for securing the recovery of the
debt for example right to retain possession of a thing till
the payment of the debt.

d. A trust is an encumbrance where there is limited

ownership over the property by an equitable obligation
to deal with it for the benefit of someone else.