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Jurisprudence

Frequently Asked Questions on Jurisprudence

Q. 1. What do you understand by the expression "Legal Theory" ? Discuss the ambit of legal theory ?

Ans. Introduction :

(a) The word "jurisprudence" has been derived from the original Latin jurisprudentia which means the knowledge of law or the science of law. Salmond maintains that word 'science' applied to the study of law has a limited meaning; when we use the word science in relation to law; 'it means and includes a systematic study and knowledge of the field of law.' According to Salmond jurisprudence is the "science of civil law."

Jurisprudence according to Roman jurist Ulpain, "the knowledge of things divine and human, the science of right and wrong." They believe that there was some absolute right to which the law should conform and the jurist must know it. That is why another great jurist Paulus said that "the law is not to be deduced from the rule, but the rule from the law." These definitions and conception of jurisprudence by Roman jurist, howsoever vague, inadequate or primitive they may be, deserves special credit because they put the idea of legal science which has an existence independent of the actual institutions of a particular society. Cicero defined, "philosophical aspect of the knowledge of law." Holland who belongs to the analytical school defines jurisprudence, "as the formal science of positive law." According to Gray jurisprudence is the "science of law", the statements and systematic arrangement of the rules followed by the courts and the principles or those rules.

Professor Allen defines it as the "Scientific synthesis of the essential principles of law". Now one should again be quibbling over the words "scientific synthesis" and "essential principles". What do we mean by these words ? All these questions raise a lot many questions before we get in any way nearer the subject.

Critical analysis :

The abovestated definition of Prof. Allen may seem to be abstract one but it gives the true picture of the subject. To limit the definition on one or few aspects of law will cause the early demise of the definition. The bounds of law are widening by leaps and bounds the rules to which Austin stoutly denied the title of law, are not considered law but are very important part of law. The tests which were laid down to determine whether given rule is law or not are changing very fast and giving place to new ones which may include many other rules which were not included in law. There is difference of opinion about the definition, purpose and scope of law. Under these conditions it is very difficult to give a definition which may be universally acceptable. It is only after knowing the definition of law and schools of jurisprudence that the reader may be able to form idea about the nature and scope of the subject.

As with the definition, there is also difference of opinion about the boundaries and the methods of jurisprudence. The different schools have put forward different theories. They stand in an order of historical evolution and are complementary to each other. All these views together give a complete and full picture of the subject.

Jurists at various times and places have made their approaches to the study of law from different angles. All systematic thinking about legal theory is linked at one end with philosophy and at other end, with political theory.

Gray observes; the relation of jurisprudence to law depends not upon what law is treated but how law is treated. The word jurisprudence was interpreted and used differently in different countries with different and sometimes conflicting social and political systems. The word was used to uphold and justify their endeavours to institutionalize certain political-social or economic systems or as a concerted attack on such systems. This has obviously been the case ever since human societies evolved some legal systems of their own and the law givers started championing their existing systems or advocated modification in the light of their socio-economic set up.

It is against this background that jurisprudence as a science of law enlarged its scope. New shades of meaning were given to the word jurisprudence; so much that it came to touch every conceivable aspect of human life. Now we have "jurisprudences" rather than jurisprudence - philosophical jurisprudence, analytical or positive jurisprudence, anthropological and historical jurisprudence, Marxist jurisprudence, Functional jurisprudence etc. The subject has spread its tentacles still further and we can find Medical jurisprudence, Architectural jurisprudence etc. Of course the word used in such context means some treatises annunciating some workable legal rules and principles which may be of importance in a given situation.

Jurisprudence remains primarily a science of law or Dias puts it, "concerned with thought about law rather than with knowledge of law". Thus it is both a philosophy and science of law, for its study invariably entails speculation about he law as it is, and as it ought to be. All writings about jurisprudence are primarily studies of this crucial thing called law. But what it to be remembered is that jurisprudence does not deal with laws as such (for example, the law of contract or IPC) providing commentaries etc., for its province is philosophical, speculative and analytical. It studies the fundamental percepts and concepts of law.

The horizons and breadth of jurisprudential study of the nature of law and its functions can no more be confined to one particular idea or philosophy or view point. It is as history of ideas evolved to resolve social conflicts in society on the matrix of set standards of values, ideals and goals. Law has to co-exist and function within the parameters of social dynamics and offers the solution as discovered or determined by social exigencies and needs. The failure to realise this relationship between social discipline and law would make law a mere fantasy or an exercise in futility and in abstraction. According to famous Roman jurist Ulpain, jurisprudence is the knowledge of things human and divine, the science of the just and unjust. When we examine this definition, it hardly makes any sense; at best it seems to take notes of the notions and the conceptions which governed the earlier civil society during the Roman period.

Cicero defined jurisprudence as the philosophical aspect of the knowledge of law. Cicero is slightly clearer. He is not concerned with the actual law, but its philosophical aspects i.e. what law ought to be. Thus Cicero seems to have made a clear distinction between the ideal and the actual laws. Jurisprudence was concerned with the universal, the ideal, and not with the limited and the particular systems of law.

According to Gray, "The relation of jurisprudence to law depends not upon what law is treated but how law is treated. A treatise on jurisprudence may go into the minutes particulars or be confined to the most general doctrines and in either case deserves its name, what is essential to it is that it should be an orderly scientific treatise in which the subjects are duly classified and subordinated."

The word jurisprudence has been derived from the original Latin jurisprudentia which means the knowledge of law or the science of law; the word juris means law while the prudentia means knowledge. It is not known, when the word came to be defined as `the science of law'. Salmond maintains that word "science" applied to the study of law has a limited meaning; when we use the word `science' in relation to law `it means and includes a systematic study and knowledge of the field of law; a kind of intellectual enquiry. The word science used in relation to law must not be confused with the word science as used in relation to purely physical and natural sciences. Thus Salmond defined jurisprudence as a "Science of Civil Law". The new phenomenon concerning the study of jurisprudence has evoked interesting reaction from Lee Loevinger who in an Article in Minnesota Review wondered at the new trends. In his opinion jurists seems to have sold his soul to statistician, the Boolean algebrist, the computer scientist. "The next step forward in the long path of man's progress must be from jurisprudence to jurimetrics which is the scientific investigation of legal problems".

Prof. Julius Stone calls it the lawyers extraversion. "It is the lawyers examination of the percepts, ideals and techniques of the law in the light of present knowledge in disciplines other than the law". Jurisprudence today is envisaged in an immeasurably broader and more sweeping sense than that in which Austin understood it. Buckland described the change vividly. "The analysis of legal concepts", he said, "is what jurisprudence meant for the student is the days of my youth. In fact it meant Austin. He was a religion; today be seems to be regarded rather a disease. He cannot be replaced on his pedestal; the intensely individualistic habit of mind of his day is out of fashion." At the present time jurisprudence may tentatively be described as any thought or writing about law and its relation to other disciplines, such as philosophy, psychology economics, anthropology etc. It is to be distinguished from an exposition of law itself. The breath of the modern attitude is well summed up by Professor Stone in these words :-

"Jurisprudence, then in the present hypothesis 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." The description implies that nobody can encompass the scope of the subject unless he is a master of many branches of learning other than the law. We might be tempted to abandon the subject in despair when we ponder on another remark of Stone that "it presents a chaos approaches to a chaos of topic chaotically delimited". To yield to such a temptation however would be too pessimistic. Dr. Dias thinks that the vast coverage of jurisprudence should be a source of comfort rather than despair.

Q. 2. Discuss the nature, scope and subject matter of jurisprudence ?
OR
Write a short note on the nature and scope of jurisprudence with special reference to its classification ?
OR
Discuss the utilitarian approach of jurisprudence and its practical value ?

Ans. Introduction and meaning :

Jurisprudence is the name given to the certain type of investigation into law, an investigation of an abstract, general and theoretical nature which seeks to lay bare the essential principles of law and legal systems. It is a subject which differs in kind from other subjects. Actually it means elucidation of the general principles upon which actual rules of law are based. The word "jurisprudence" has been derived from Latin word "jurisprudentia" which means knowledge of law. "Juris" means law and "prudentia" means skill or knowledge. Thus, jurisprudence signifies knowledge of law and its application. Jurisprudence has assumed different meaning at different times. The present meaning which jurisprudence conveys in modern times is the result of a course of evolution.

Salmond's definition :

He defines jurisprudence as the "science of the first principles of the civil law". Jurisprudence deals with a particular species of law viz., civil law or law of the state. They are enforced by courts or judicial tribunals and regulate external human conduct only. It has characteristic feature which distinguish it from law of every other kind. In society the conduct of man is governed by three kinds of law :

(i) the laws of theologian

(ii) the laws of the moralist and

(iii) the laws of the jurist.

Austin's Definition :

Jurisprudence as the "philosophy of positive law". According to him, the "positive law or juspositivium" is the law laid down by a political superior for controlling the conduct of those subject to his authority. Thus, the term positive law used by him is analogous to the civil law but the term philosophy used by him is somewhat misleading because philosophy deals with general theories about things whereas jurisprudence is general theory only of man-mode laws.

Austin divided jurisprudence into two kinds :

General jurisprudence : Which is the science concerned with the exposition of the principles, notions and distinctions which are common to the system of laws, understanding by systems of law, the ampler and maturer systems which, by reason of their amplitude and maturity are pre-eminently pregnant with instruction.

Particular jurisprudence :

Which is the science of any one of such systems of positive law.

Gray's definition : He defines jurisprudence as the "science of law", the statement and systematic arrangement of rules followed by the courts and the principles involved in those rules. Thus jurisprudence deals with that kind of law which consists of rules enforced by courts while administering justice.

Subject-matter of jurisprudence : It can be divided into three branches :

(1) Historical jurisprudence : Historical jurisprudence deals with the general principles governing the origin and development of law, with influences that affect the law, with the origin and development of those legal conceptions and principles which are so essential in their nature as to deserve a place in the philosophy of law.

(2) Analytical jurisprudence : Analytical jurisprudence analyses the first principles of law as they exist in a legal system.

(3) Ethical or philosophical jurisprudence : It deals with the first principles of ethical significance and adequacy of law.

Jurisprudence is the study of fundamental legal principles. That study may be

(a) Philosophical.

(b) Scientific.

Jurisprudence is, in its widest amplitude, known as the knowledge of law. But in the stricter sense it is the study of fundamental legal principles and is concerned with the normative and not merely the positive, it is concerned not merely with the actual, but also with the ideal. Law plays on the strings of those fundamental principles evolved or comprehend by the beautiful harp of jurisprudence. Jurisprudence is the harp that produce the melody of law, for the legislators, judges and lawyers are the musician who play on the strings of this harp.

Contents of Jurisprudence : There are three main contents of jurisprudence :

(a) Sources : Basic features of a legal system are to be found mainly in its authoritative sources and the nature and working of the legal authority behind these sources. Custom, legislation, precedent as a source of law, methods of judicial interpretation, reasoning, administration of justice and pros and cons of codification of laws are all included under this category.

(b) Legal concepts : Legal concepts are studied under the science of jurisprudence because they furnish for better understanding of law in its various forms a background well founded. Legal concepts include rights, titles, property, ownership, possession etc. All these concepts are also studied under the different branches of law yet jurisprudence tries to build a more comprehensive picture of each concept individually.

(c) Legal theory : Legal theory is concerned with law as it exists and functions in the society and the manner in which law is created and enforced as also the influence of social opinion and law on each other. Legal theory seeks to link law with other disciplines and pursue its study in a wider social perspective.

Scope of Jurisprudence : The scope of jurisprudence has widened considerably over the years. Jurisprudence includes all concepts of human order and human conduct. Therefore, anything which concerns order in the state and society will be within the domain of jurisprudence.

Redcliffe has said that jurisprudence is a part of history, part of economics and sociology, a part of ethics and a philosophy of life.

Justice Mukherjee has observed on the scope of jurisprudence, "jurisprudence is both an intellectual and idealistic abstraction as well as behavioural study of man in society. It includes political, social, economic and cultural ideas. It covers the study of man in relation to state and society."

Utility of jurisprudence : Jurisprudence is an abstract and theoretical subject, without any practical use. Salmond has pointed out that jurisprudence has its own intrinsic interest like any other subject of serious scholarship. Just as a mathematician investigates the number theory not with the aim of seeing his findings out of practical use but by reason of fascination which it holds for him, likewise the writer on jurisprudence may be impelled to his subject by its intrinsic interest.

Jurisprudence is not without practical value. It is the eye of law having its main uses as follows:

(1) A study of those fundamental principles which are common to all systems of law is of great advantage in the study of a particular system of law.

(2) The aim of jurisprudence is to develop those fundamental principles, the knowledge of which is essential for the practical work of the registrar and the advocate and which are adopted by society to adjust relations between man and man.

(3) A study of jurisprudence is of immense value to the closely allied sciences of legislation.

(4) Jurisprudence has also great educational value. The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique.

Q. 3. Jurisprudence is the eye of law ? discuss
OR
Discuss the province of jurisprudence : Is it of any practical value to a practising lawyer ?

Ans. The word "jurisprudence" has been derived from the original Latin jurisprudentia which means the knowledge of law or the science of law; the word juris means law while the prudentia means knowledge. It is not known, when the word came to be defined as `the science of law'. Salmond maintains that word "science" applied to the study of law has a limited meaning; when we use the word `science' in relation to law `it means and includes a systematic study and knowledge of the field of law; a kind of intellectual enquiry.' The word science used in relation to law must not be confused with the word science as used in relation to purely physical and natural sciences. Thus Salmond defined jurisprudence as a "Science of Civil Law". The new phenomenon concerning the study of jurisprudence has evoked interesting reaction from Lee Loevinger who in an Article in Minnesota Review wondered at the new trends. In his opinion jurists seems to have sold his soul to statistician, the Boolean algebrist, the computer scientist. "The next step forward in the long path of man's progress must be from jurisprudence to jurimetrics which is the scientific investigation of legal problems".

The term `jurisprudence' in the Anglo-Saxon world and in former British colonies including India has a definite, legal, linguistic and contextual meaning and thought-content. It is an expression to denote the approach which envisages the analysis and exposition of law by weeding out such non-legal value oriented elements which had made law confusing, uncertain and indeterminate. In other words, it is a systematic study of positive law or the philosophy of positive law or the formal science of positive law as expounded by Austin and his successors. The expression jurisprudence in vogue in England and other former British colonies including India where the main concern of law has been to strive for status quo in the interest of stability and legal justice. It is used in the sense as understood by Austin, Kelsen, Hart. The Continental jurists like Ihering, Stammler, Dugiut, Kohler and the American jurists who have propounded the theory of "living law", law with ever changing content or law based on "felt needs" or social forces and processes reject the purely technical, analytical or conceptual study of law called hitherto jurisprudence. Instead they have adopted an evaluative and philosophical approach towards law which it is supposed to sub-serve by putting forth the moral, social and human factors as loadstar for law. They totally reject and relegate logic, mathematical and calculative study of law which beset law especially during nineteenth century.

According to P.J. Fitzgerald : Jurisprudence is the name given to a certain type of investigations into law, an investigation of an abstract, general and theoretical nature which seeks to lay bare the essential principles of law and legal systems. In other words, "Jurisprudence is both a philosophy of law and a reflective study rules which form the basis of concrete legal problems."

The Province of Jurisprudence :- It is essential for a lawyer in his practical work to have a knowledge of jurisprudence, the aim of which is to formulate the fundamental principles which are adopted by society to adjust the relations between man and man because the knowledge of the general ideas and principles laying at the root of all rules of law, which Jurisprudence imparts service to train the mind into legal ways of thought and affords a key to the solution of many provisions of civil law which would otherwise appear to be singular and unaccountable. Without such knowledge, no lawyer can really measure the meaning of the assumptions upon which this subject rests.

It has been aptly said that "Jurisprudence is the eye of law". This statement may be best illustrated by stating three main uses of jurisprudence. They are :-

(a) A study of those fundamental principles which are common to all systems of law. This study is of great advantage in the study of a particular system of law.

(b) The practical work of the legislator and the advocate requires the knowledge of the fundamental principles which are adopted by society to adjust the relations between man and man. The aim of jurisprudence is to formulate these principles to "supply the foundations which the science of law demands but of which the art of law is careless."

(c) A study of Jurisprudence has been of immense advantage in the closely allied science of legislation which concerns itself with what the law should be. The use of the word jurisprudence as the eye of law lays its foundation in the legal system of all most all the western countries. In brief the legal philosophy of Jurisprudence is incomplete without the study of law.

(d) It enlightens the students and helps them in adjusting themselves in the society without causing injuries to the interests of other citizens. According to J.G. Phillimore : in Principles and Maxims of Jurisprudence, "Such is the exalted science of jurisprudence, the knowledge of which sends the students into civil life full of luminous precepts and notions applicable to every exigency of human affairs."

(e) Jurisprudence helps the Bench and the Bar in ascertaining the true meaning of legislative enactments by providing the rules of interpretation.

Q. 4. The expression jurisprudence which at first denoted a knowledge of law came through the development of the conception to express the idea of a science of law. Explain this statement with reference to the origin of the word "jurisprudence" ?
OR
Critically examine that jurisprudence is the "synthesis of essential principles of law"?

Ans. Introduction :

Critical analysis :

Q. 5. Discuss the nature and objective of jurisprudence in comparison with other discipline of study ?

Ans. Introduction : In fact the horizons and breadth of the jurisprudential study of the nature of law and its functions can no more be confined to one particular discipline or idea or philosophy but in actual it is analytical study of different ideas, theories and values. Therefore the encompass of the area of jurisprudence can by no means be either an abstract speculation in vacuum nor can it be confined to one particular fallacy, philosophy. In its specific sense jurisprudence has been divided into three branches :

(a) analytical.

(b) historical.

Where on one side jurisprudence is said to be analytical study but there on other side we cannot deny the fact that it is impossible to bring a true analytical picture of jurisprudence without considering the other two branches. Study of jurisprudence is integrative, synthetic and purposive. It is a study of both a theoretical exercise concerning the development of law as it has evolved as well as is a functional perception of social processes, ethos and other forces which shapes and condition the ultimate quality and content of a legal system. It is not merely an intuitive reflection or merely an inductive cut and dry method it is rather a role or value oriented method to sensitise the community and its rules to the requirements of justice, equality and morality. It is a conceptual analysis of theory of law correlated to socio-political goals of a society which provide explanation, justification and meaning to the totality of legal system. It attempts to critically analyse the nature of law in socratic manner as has been understood by Greeks, Hindus and Romans.

Jurisprudence is the subject which analyse the law and apply its approach to its respective field. Therefore, jurisprudence as a philosophy of law has three related purposes namely - evaluation (analysis), general synthesis and improvement in various legal concepts in a logical and rational manner to sub-serve the postulated ideals and beliefs which the thinkers hold essential for ordering of society. Jurisprudence is actually the "analytical study of law".

Jurisprudence is law : It gives an understanding of the nature of law. It helps in the study of the actual rules of law and in tracing out principles underlying therein. It is a body of principles and rule. Such rules or principles serve order, regulate behaviour and conduct inter-relationship between man and man.

Jurisprudence is set of principles or rules of laws : It is the set of principles or rule of law which are either found or grow with the general consciousness of the people or are framed by an individual or a body of individual with the express or tacit consent and agreement of the people. Such principles or rules may also be imposed on a nation by a victorious power.

Jurisprudence an analytical approach : It develops the critical faculties of the mind and gives the proper understanding of legal expressions and terminologies. It is a scientific development of law.

Jurisprudence regulate human behaviour : It regulates human behaviour and conduct by establishing certain norms which are enforced by an external authority. It neither encourages nor forbids men from thinking this way or that way but it regulates their approach.

Jurisprudence is an inter-disciplinary study : It is an inter-disciplinary study and partakes of the methodology of almost every other social science. It has been both a philosophy and a science with a marked emphasis on the one or the other.

Jurisprudence as normative structure and legal ideology : It may be defined as normative jurisprudence dealing with concepts like morality, justice, ethics etc. and their relevance in decision making. It is an account of normative evaluation of legal principles including its ideology and political ends.

Jurisprudence as science of legislation : It deals with contents of an actual legal system, as existing at any time, whether past or present. It is a science of legislation, the purpose of which is to set forth law as it ought to be. It deals with the ideal future of the legal system and with the purposes for which it exists.

Any how jurisprudence [without bothering ourselves with the instrument or modes of enquiry taken over from other social disciplines] remains primarily a science of law or as Dias puts it, "concerned with thought about law rather than with the knowledge of law." Thus it is both a philosophy and science of law, for its study invariably entails speculation about the law as it is, and it ought to be. All writings about jurisprudence are primarily studies of this crucial thing called law. But what it to be remembered is that jurisprudence does not deal with laws as such [for example, the law of contract or IPC] for its province is philosophical, speculative and analytical. It studies fundamental percepts and concepts of law.

Q. 6. Discuss the practical role played by jurisprudence in modern society ?

Ans. Modern jurisprudence trenches on the fields of social science and of philosophy; it digs into the historical past and attempts to create the symmetry of a garden out of the luxuriant chaos of conflicting legal systems. The breadth of its scope, covering a voluminous literature written in many tongues, makes it a difficult subject to master. There is a danger that excessive learning may obscure the real problems that must be faced. Too many works contain such a wealth of reference to the learning of the past and present that they become tedious and unintelligible.

Jurisprudence is sometimes used merely as an imposing synonym for law, as when we speak of medical jurisprudence. Jurisprudence is a particular method of study, not of law of one country but of the general notion of law itself. Holland describes it as the formal science of positive law. Allen as the scientific synthesis of the essential principles of law. However it may be defined it is a study relating to law, and although the term law may seem to be uninitiated a simple one, analysis reveals that there are many uses of this word. Hence one of the first tasks of jurisprudence is to throw light on the nature of law. At first sight it would seem to be the most logical procedure first to define law and then to discover scope of jurisprudence. But there are various ways of approaching the problem and each school of jurisprudence tends to set up its own definition. Thus to take only one point for purposes of illustration, law has a twofold aspect :

It is an abstract body of rules and also a social machinery for securing order in the community. The sensible approach is to admit that both these sides of law must be considered. But some schools put an exaggerated emphasis on the first, others on the second. Clearly, a jurisprudence which considers only the theoretical rules of the books will be very different from one which attempts to study law in action.

In the 20th Century which has produced a large number of distinguished jurists, jurisprudence has been understood more or less as a science of law. It remains still controversial as to what it consists of Holland who belongs to the analytical school defines jurisprudence as the formal science of positive law. Now positive law is the law which is promulgated by a sovereign and followed by the courts. Jurisprudence is indeed, a science of law; it is primarily concerned with the nature of law. It is a science which seeks systematically to analyse the vagaries of human conduct vis-a-vis social, moral and ethical values and endeavours to harmonize such values with the ideals enshrined, goals cherished and the purposes sought to be realised by each society. Jurisprudence in modern society is not merely a study of abstract ideals which governed human conduct during different periods or a set of concrete rules based on determinism and induction, it is also a value oriented method to resolve varying social interests which call for legal recognition and enforcement. It is indeed an intellectual inquiry and exercise concerning the nature of law and basic function of law, the relationship between law and justice and law and morals etc. Functionally speaking, it is a technique or methodology to devise design, and identify such pressing demands or problems which require solution within the parameters of law and other social norms. Thus study of jurisprudence is both a theoretical exercise concerning the development of law as it has evolved as well as is a functional perception of social processes, ethos and other forces which shape and condition the ultimate quality and content of a legal system. It is not merely intuitive reflection or merely an inductive cut and dry method, it is rather a role or value oriented method to sensitise the community and its rules to the requirements of justice, equality and morality. It is no more a study of vague ideals irrelevant to the needs and values of the society. It is an experimental study of legal ideals and of social philosophy, political ideology in form and content, nature and function which make it a living and dynamic discipline - "a master of science" of legal thought.

Jurisprudence, broadly speaking is normative evaluation of basic legal values and ideals which impart validity and recognition to a legal system. It is a conceptual analysis of theory of law correlated to socio-political goals of a society which provide explanation, justification and meaning to the totality of legal system. In modern times jurists like Pound, Hart, Stone, Fuller, Rawls, Dworkin, Kelsen, Friedmann, Krishna Iyer, Bhagwati, Desai, Kuldip Singh, Upendra Baxi etc. have made profound contribution in the field of jurisprudence. Obviously, the methods or techniques that have been adopted to analyse the nature of law and its ends have varied since the Greek period what Dias and Hughes Call "a Panaramic Survey" of the whole field of jurisprudence. In modern times new shades of meaning were given to the word jurisprudence, so much so that it came to touch every conceivable aspect of human life. Now we have "jurisprudences" rather than jurisprudence - philosophical jurisprudence, analytical or positive jurisprudence, anthropological jurisprudence, historical jurisprudence, functional jurisprudence etc. The subject has spread his tentacles still further and we can find medical jurisprudence, Architectural jurisprudence etc. In modern days, the real purpose of jurisprudence is to set forth the law as it ought to be and to deal with ideal future of the legal system and with the purposes for which it exists.

Q. 7. Jurisprudence concern with any thought about law ? Discuss.

Ans. Jurisprudence remains primarily a science of law or Dias puts it, "concerned with thought about law rather than with knowledge of law". Thus it is both a philosophy and science of law, for its study invariably entails speculation about he law as it is, and as it ought to be. All writings about jurisprudence are primarily studies of this crucial thing called law. But what it to be remembered is that jurisprudence does not deal with laws as such (for example, the law of contract or IPC) providing commentaries etc., for its province is philosophical, speculative and analytical. It studies the fundamental percepts and concepts of law.

Q. 8. Examine the growth and development of jurisprudence by drawing the difference between jurisprudence and legal theory ? Illustrate.
OR
History of jurisprudence is as old as the history of human culture itself and it can be seen as a series of attempts at answering what the law is. Discuss the importance of jurisprudence by drawing a difference with legal theory ?

Ans. Introduction

1. Jurisprudence like law and language is coveal with society. Therefore, the attempt to define jurisprudence also described as Legal theory - Its precise nature, meaning and content is challenging and never-ending task. For jurisprudence is not merely the study of abstract ideals which governed human conduct during different periods or set of concrete rules based on determinism and induction it is also a value oriented method of resolve varying social interests which call for legal recognition and enforcement. It is indeed an intellectual inquiry and exercise concerning the nature of law and basic functions of law, the relationship between law and justice and law and morals etc.

2. Functionally speaking, it is a technique or methodology to devise, design and identify such pressing demands or problems which require solution within the parameters of law and legal norms. Thus the study of jurisprudence is both the theoretical exercise concerning the development of law as it has evolved as well as is a functional aspect of social processes, ethos and other forces which shape and condition the ultimate quality and content of a legal system. It is not merely an intuitive reflection or merely an inductive cut and dry method, it is rather a role or value oriented method to sensitise the community and its rules to the requirements of justice, equality and morality. It is no more a study of vague ideals irrelevant to the needs of the society. It is an experimental study of legal ideals and of social philosophy and political ideology in form and content, nature and function which make it a living and dynamic discipline - "master of science" of legal thought.

3. Jurisprudence broadly speaking, is normative evaluation of basic legal values and ideals which impart validity and recognition to a legal system. It is conceptual analysis of theory of law correlated to socio-political goals of a society which provide explanation, justification and meaning to the totality of legal system. It attempts to critically analyse the nature of law in socratic manner as has been understood by Hindus, Greeks and Romans.

In modern time jurists like Pound, Hart-Stone, Fuller, Dworkin, Kelsen, Friedmann, Krishna Iyer, Bhagwati, Desai, Kuldip Singh etc. have made profound contribution in the field of jurisprudence. Obviously, the methods or techniques that have been adopted to analyse the nature of law and its ends have varied since the Greek period what Dias and Hughes call "a Panaramic survey" of the whole field of jurisprudence. In other words, history of jurisprudence is as old as history of human culture itself.

Jurisprudence And Legal Theory :

(a) The term jurisprudence is the Anglo-Saxon word and in former British colonies including India has a definite legal, linguistic and contextual meaning and thought-content. It is an expression to denote the approach which envisages the analysis and exposition of law by weeding out such non-legal value oriented elements which had made law confusing, uncertain and indeterminate. In other words it is a systematic study of positive law or the philosophy of positive law or the formal science of positive law as expounded by Austin and his successors. Such a study of law insists on total exclusion of customary practices, judicial hunches, moral or social vagaries and fantasies which according to Austinians tend to make law diffusive. Therefore, when attempts are made to define jurisprudence as a logically coherent and consistent legal system there is little concern for individual good or social justice for the people in general. It is why the positivists make feverish effort to make law as a command and the legal system "logical" "formal" or "pure" when adjudged with reference to "sovereign" or grundnorm. Such a methodology or science of law denude of moral values and social expediency in the Hobbes-Bentham-Austinian definition as jurisprudence.

However the term legal theory has both philosophical and sociological implications. It is an evaluative and philosophical study of law in terms of ends, values and goals which law ought to subserve. The term legal theory is generally used in the sense as an evaluative and normative study of the concept of law and its relationship with morality and justice. Such a study of law evolves value judgments of the social goals and of ideological and political goals which the legal system is to conserve or cater. The term "Legal Theory" has been for the first time coined by W. Friedmann in 1945 when his legal theory appeared and since then it has become popular amongst the Continental American jurists who refuse to accept the traditional British concept of jurisprudence based on sheer logic sovereign, command and coercion devoid of moral and social values. Thus debate has sparked off among the jurists as to the meaning of the term jurisprudence and legal theory. The question arises whether is there some difference between the two terms often used interchangeably by legal scientists. According to Fitzgerald jurisprudence is both a philosophy of law and a reflective study rules which form the basis of concrete legal problems. Whereas to him legal theory is "an attempt to answer the question what is law" ? in order to clarify the most of all legal concepts, the concept of law itself. It means legal theory is essentially a theoretical evaluation and an objective inquiry of the basic nature, meaning and purpose of law. Indeed essential talk of legal theory is to examine and analyse the philosophical notion of law which itself is confounded by divergent philosophical, political and ideological controversies.

Legal theory is not concerned with or interested in the entire field with which jurisprudence is concerned. Its principal concern and attempt is to analyse what can be described as fundamental or core elements of the phenomenon "law". But the distinction so made between legal theory and jurisprudence appears to be of semantic value and is illusory as their contents are not only inseparable as are their respective goals and purposes. The distinction between the two is that of emphasis and of range only rather than of content. Both are concerned with general nature of law and in the modes and methods which are adopted for evaluating and evolving various legal concepts and theories.

(b) In nutshell, legal theory means a theory or philosophy of law dealing with nature of law and other related moral and ethical ideals and goals. It may be described as normative jurisprudence dealing with concepts like morality, justice, ethics etc. and their relevance in decision making. It attempts to philosophize law to make it less personal and arbitrary to promote goals with new directions for the solution of conflicts. In a way it is on account of normative evaluation of legal principles including its ideology and political ends. However AM Honore thinks that a definition of legal theory must give description of law as well as of its normative structure and legal ideology. He remarks legal theory may be looked from two different views :

(i) On the one hand, it may be thought of as the enterprise of describing the conditions which must exist in order that there may be laws and of giving an account of the characteristics of law.

(ii) On the other hand, it can be convinced as the advocacy of political and moral ideals within the framework of a convention which requires them to be put forward as versions of the meaning definition or function of law. Legal theorists are engaged in a form either of cartography or of ideological warfare.

Broadly speaking, legal theory involves a study of the characteristic features of law and common to legal systems, an analysis of the basic elements of law which made it law and distinguish it from other forms of rules and standards, from systems which cannot be described as legal systems and from other social phenomenon. The nature of the legal theory lies in the study of the light which theories may shed on the distinctive attributes of law, by an examination of the relative merits and demerits of the principal expositions of the subject.

The concept of legal theory although overlapping is intended only to focus the need of new awareness of new developments and changes that are taking place in the western world in legal science. An understanding of the concept of jurisprudence becomes necessary in order to have an over all idea and knowledge of new juristic philosophies of great contemporary legal thinkers.

Q. 9. "Law is the command of the sovereign." Critically examine this statement of Austin in the light of present-day circumstances.

Ans. Introduction

The work of the English jurist John Austin (1790-1859) remains the most comprehensive and important attempt to formulate a system of analytical legal positivism in the context of modern state. The first six lectures the most influential part of his work were published in 1832 under the title of "The province of jurisprudence Determined" and the rest was published posthumously in 1861. After his death he achieved greater fame and became the founder of what was popularly called the Analytical School.

He confined his field of study only to the positive law. Prof. Allen thinks that it is proper to call the Austin's School as imperative school. This name he gave on the basis of Austin's conception of law - "Law is Command". Austin's initial task to be a critical analysis of the law as it is. In his first six lectures he sought to elucidate law and his concept of law is an imperative one which is based on sovereignty. According to him law is only an aggregate of individual laws. In his views all laws are rules the majority of which regulate behaviour.

Austin define : Law as a "rule laid down for the guidance of an intelligent being having power over him. This can only be accomplished by a determinate person or body, since an indeterminate body cannot express wishes in the form of commands.

Law is of 2 kinds :

(a) Law of God - Laws set by God for men

(b) Human Laws - Laws set by men for men.

Two kinds of Human laws

(1) Positive Law :

These are the laws set by political superiors as such or by men not acting as political superiors but acting in pursuance of legal rights conferred by political superiors. Only these laws are the proper subject matter of jurisprudence.

(2) Other laws :

Those laws which are not set by political superiors (set by persons who are not acting in the capacity or character of political superiors) or by men in pursuance of legal rights.

Austin proceeded to distinguish between what he called -

(1) "Laws properly so called."

(2) "Laws improperly as called".

(1) Laws properly so called : are those laws which are commands. Divine laws or the laws of the God, which are set by God to his human creature are the laws properly so called.

(2) Laws improperly so called : are those laws which are not command. Eg. Laws by analogy as laws of fashion, laws by metaphor i.e. laws of gravity.

Human laws : These are those laws which are not set by men as political superior or in pursuance of a legal right Eg. positive morality - Positive moral rules, International law.

Positive law is the subject matter of jurisprudence : Austin says that only positive law is the proper subject matter of jurisprudence - law simply and strictly so called or law set by political superiors to political inferiors. Jurisprudence is the general science of positive law.

Law is Command : Law is command of sovereign which implies

(a) Duty

(b) Sanction

Being a command, every law properly so called flows from a determinate source. Whenever a command is expressed or intimated one party signifies a wish that another shall do or forbear and the latter is obnoxious to an evil which the former intends to inflict in case the wish be disregarded. The key to a law properly so called lies in obligation. Every wish with regard to conduct is favourable to conduct which is desired and unfavourable to the conduct which is not desired. Such wishes may emanate from directions or from general opinion, but wishes which are directives are distinguishable in that they render conduct obligatory. General opinion cannot create obligations. Every Directive then is a command; the threat of evil is a sanction and the party commanded and threatened is under an obligation or duty. Duty and sanction are correlative and fear of sanction is the motive for obligation.

Opening a new era approach -

(1) Austin laid down many of his propositions as deduced from English law as it was during his time. The credit goes to Austin for opening a new era approach.

(2) Austin was intimate to great thinkers and philosophers of his time like Benthan and Hill and he wiped out many false notions which had obscured the true meaning of law and legal terms.

(3) Austin's classification and analysis of the concepts of English law has served as a guide for better English analytical jurists.

(4) Austin's theory attains the notion of simplicity consistency and clarity of exposition. Austin's method is described as characteristic of English jurisprudence.

(5) Austin's theory was widely accepted in English and American jurisprudence. Later on his theory received increasing attention and respect from the Continent and Germans.

(6) Later Analytical theories have improved upon Austin's theory and have given a more practical and logical basis. Jurists like Salmond and Gray have improved upon it and considerably modified the analytical postivist approach. The Vienna school of law is the outbreak of Austin's theory.

(7) Even the defects of Austin's theory is the constant source of illumination; for his error's are often the mis-statement of truths of central importance for the understanding of law and society.

(8) Austin as a jurist kept himself free from the rival political ideologies of nationalism and internationalism. Even one of the great critics, Olivecrona, also acknowledges him as the pioneer of modern positivist approach to law. Thus Austin made great contribution to jurisprudence.

Q. 10. Give an account of the Austin's concept of law. In what respects he followed Benthem in this regard ?

Ans. (1) Introduction : John Austin is the founder of the Analytical School. He is considered to be father of "English Jurisprudence". The first six lectures delivered by him in the London University were the most influential part of his work. These six lectures were published in 1832 under the title of "The Province of Jurisprudence Determined" and the rest were published posthumously in 1861. In these lectures he dealt with nature of laws, sources of law and presented an analysis of English legal system.

(2) Austin's Analytical Positivism : Austin set himself the task of making a beginning with the analysis of the principle concepts of English law. Before doing so he felt it necessary to demarcate the province of law and to distinguish it from what it ought to be. Austin distinguished between what he called

- "laws properly so called" and

- "laws improperly so called"

The key to laws properly so called lies in obligation. An obligation exists when another has the power and purposes of inflicting an evil on any actor, who fails to conform to the desired conduct. This other may be God, human being acting as political superior i.e. a sovereign person or body of persons in an independent political society or private persons acting in persuance of rights conferred upon them by political superiors.

Every directive is a command, the threat of evil is a sanction and the party commanded and threatened is under an obligation or duty. Duty and sanction are correlative and fear of sanction is the motive for obedience.

A command may be particular or general. Particular command is addressed to one person or group of persons whereas general commands are addressed to the community at large and enjoin classes of acts and forbearances. General commands are continuing commands. Any commander who receives "habitual obedience" is sovereign in that society.

Laws "properly called" are subdivided by him into laws set by God, Divine law and laws set by men to men acting as political superior. To every law set by men to men he applied the term "positive law" or "law simply and strictly so called" so as to distinguish them from the laws of God. "Positive laws" are the subject matter of Jurisprudence. Separate from all these are laws set by men to men neither as political superiors, nor in persuance of rights conferred upon them by such superiors e.g. those set by a master to a servant or the rules of a club. They are still laws "properly so called" because they are commands, but he distinguished them from positive law by giving them the term "positive morality".

Laws "improperly so called" consist in the first place of "Laws by analogy" i.e. law set and enforced by mere opinion, also somewhat confusingly termed as "positive morality" - positive so as to distinguish them from the Laws of God, morality so as to distinguish them from positive law or law strictly so called. Another subdivision included is "laws by metaphor", which covered expression by the uniformities of Nature. Major thrust in Austinian positive law was on separation of law from morals. As a corollary of it, he distinguished science of jurisprudence from ethics. For him, "Command" was the key to the science of jurisprudence.

(3) Bentham-Austin : (a) Like Bentham, Austin believed that "Law" is only an aggregate of individual laws. In his view, all laws are rules the majority of which regulate behaviour. These are either directives or those imposed by general opinion. A directive, whether general or particular, is the expression or intimation of your wish `that another shall do or forbear, issued in the form of a command'. Accordingly, a law in its most comprehensive signification is "a rule laid down for the guidance of an intelligent being by an intelligent being having power over him."

(b) Austin is considered to be father of analytical or positivist thought. However, Jermey Benthem whose many works have lately come to light appears to be the founder of this approach. Austin owes much to Bentham and on many points his propositions are not more than a para-phrasing of Bentham's theory.

(c) Austin was intimate to great thinkers and philosophers of his time like Bentham and Mill. Austin defined jurisprudence as a "philosophy of positive law" and distinguished it from "science of legislation" inspired by Benthamite principle of utility. He asserted that science of jurisprudence is concerned with positive laws without regard to their goodness or badness. The science of legislation is for Austin a branch of ethics or morality towards both of which positive law is indifferent or different.

(d) Bentham expounded the concept of positive law commanding citizens which they are obliged to do with a threat of sanction and legal consequences that flow in the event of disobedience of command of the sovereign. It is Bentham who rejected the conjectural assertions and competing claims of natural law for superiority and presented a typical model of positive law - stripped of vagueness which marked a clear departure from natural law and ascendancy of the sovereign made law in the interest of general good. It is, therefore, Bentham and not John Austin who is the progenitor of modern analytical jurisprudence.

(4) Austin's conception of law : Austin defined law as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. He has divided law into two parts:

(1) Laws set by God for men, and

(2) Human Laws i.e. laws made by men for men.

Human laws are further divided into positive laws and other laws :

(a) Positive laws - There are the laws set by political superiors as such, or by men not acting as political superiors but acting in pursuance of legal rights conferred by political superiors. Only these laws are the proper subject matter of jurisprudence.

(b) Other laws - Which are not set by political superiors or by men in persuance of legal rights. According to Austin, the study and analysis of positive law alone is the subject matter of jurisprudence and the chief characteristic of positive law are command, duty and sanction. However, he accepts that there are three kinds of laws which, though not commands, may be included within the purview of jurisprudence by way of exception. They are as follows :

Declaratory laws

These are not commands because they are already in existence and are passed only to explain the law which is already in force.

Laws of repeal

These are not commands but in fact they are the revocation of a command.

Laws of imperfect obligation

These are not treated as commands because there is no sanction behind them.

Austin's contribution to Analytical School can never be overlooked. He opened an era of new approach to law. Even the defects of his theory are further source of enlightenment.

Q. 11. Explain Austin definition and show how Salmond makes an improvement over it ?

Ans. Austin definition :

1. Austin define Jurisprudence as the "philosophy of positive law". According to him, the positive law of "jus postivium" is the law laid down by a political superior for controlling the conduct of those subject to his authority. Thus, the term positive law used by him is analogous to the civil law but the term philosophy used by him is somewhat misleading because philosophy deals with general theories about things whereas jurisprudence is generally theory of only man-made laws.

2. Austin divided jurisprudence into two parts :

(a) General Jurisprudence : It is the science which is concerned with the exposition of the principles, notions and distinctions which are common to the system of laws, understanding by systems of law, the ampler and maturer systems which by their reason of amplitude and maturity are pre- eminently pregnant with instructions.

(b) Particular Jurisprudence : It is the science of any one of such systems of positive law.

3. Austin believed that "Law" is only an aggregate of laws and he defined law in its most comprehensive significance as a rule laid down by an intelligent being for the guidance of an intelligent being having power over him.

4. Austin distinguished between Laws properly so called and Laws improperly so called. The former are general commands addressed to the community at large and enjoin classes of acts and forbearances and they are further sub-divided into :

"Laws set by god, Divine laws or the law of God."

and laws set by men to men to which he applied the term "positive to distinguish them from the law of God".

5. Laws set by men to men also fell into two categories :

(a) Laws set by political superior i.e. by a sovereign person or sovereign body of persons to a member or members of independent political society wherein that person or body of person was sovereign or supreme. This category also included laws set by private persons acting in pursuance of rights conferred upon them by political superiors. All this was termed by Austin "positive law" or "law simply and strictly so called" and was according to him, the subject-matter of jurisprudence.

(b) Laws set by men to men neither as political superiors, nor in pursuance of rights conferred upon them by such superiors e.g. those set by a master to a servant or the rules of a club. They are still laws properly so called, because they are commands, but he distinguished them from positive law by giving them the term "positive morality".

6. Laws properly so called are species of commands. But being a command every law properly so called flows from a determinate source or emanates from a determinate author. The key to understand a law properly so called lies in duty, which is created by the command of a sovereign. A command consists of the expression or intimation of your wish that another shall do or forbear, coupled with the power and purpose of inflicting and evil sanction in the event of disobedience. Duty and sanction are correlative terms, the fear of sanction supplying the motive for obedience.

7. Sovereign power is determinate : According to Austin, in every independent political state there is a sovereign power, which extracts obedience from the bulk of the members of the society.

8. Sovereign power is unlimited : Austin considers the sovereign to be the source of law. Law is the will or command of the sovereign. The sovereign is the authority in the state which can make and unmake any and every law. The power of the sovereign cannot be controlled by any command of his own. According to him, the sovereign power may have "de facto" limitations because it is dependent upon two factors which are coercive force and docile disposition of the people. However, he suggests that there can be no "de jure" limitations on the sovereign authority. This means that there can be no legal limits on the power of the sovereign authority.

9. Sovereign power is indivisible : If the power of the sovereign cannot be legally limited, it follows that it is incapable of division. According to Austinian theory, there can be only one sovereign in the state, that is to say, one person or one body of persons in whom the totality of sovereign power is vested. Sovereign power is indivisible and cannot be shared between two or more persons or bodies of persons.

Salmond's definition as an improvement :

1. Salmond defines Jurisprudence as the science of the first principles of the civil law. Jurisprudence thus deals with a particular species of law, viz., civil law or law of the state. They are enforced by courts or judicial tribunals and regulate external human conduct only and not the inner beliefs of man.

2. This definition has a characteristic feature which distinguish it from law of every other kind. In society the conduct of man is governed by three kinds of law :

(i) the laws of the theologian,

(ii) the laws of the moralist,

(iii) the laws of the jurists.

It is with this jurist laws only that jurisprudence is concerned. The laws of theologian have divine or super-human source whereas the laws of moralist are man made laws. In their mature condition, the laws of the jurist exist in politically organised society and are enforced by courts or judicial tribunals of the society which apply a variety of sanctions ranging from capital punishments to a fine.

3. Salmond has criticised the distinction made by Austin. According to Salmond, the "jurisprudence generalis or general jurisprudence is not the study of legal systems in general but the study of fundamental or general elements of particular legal system.

4. Dr. Holland has also criticised the distinction made by Austin. He says that in Austin's particular jurisprudence it is only the material of the science which is particular and not the science itself. Holland holds that jurisprudence should be used without any qualifying epithet and that it represents the science of basic principles of law.

5. Sovereign power is determinate : According to Salmond, every political society involves the presence of sovereign authority. Unlike Austin, Salmond visualises the possibility of the existence of a semi-sovereign state. Salmond points out that it is not necessary that sovereignty in all cases should be found in its entirely within the confines of the state itself and it may, wholly or partly, be external to the state.

6. Sovereign power may be legally limited : Unlike Austin, Salmond says that sovereign power may be legally limited. An authority may be "sovereign" within its sphere for in that sphere its power is uncontrolled. The ambit of this sphere need not be unlimited. Salmond observes that Austin's error lies in confusing the limitation of power within its subordination. When Salmond says that sovereignty may be limited, it is not suggested that sovereign power may be legally controlled within its own sphere, for that would be a self- contradictory proposition. What Salmond actually suggested is that the province of sovereignty may have legally determined bounds.

7. Sovereignty is divisible : According to Salmond, sovereign power is divisible. It may be divided into 3 organs of the state namely legislative, executive and judiciary, each branch being free and uncontrolled in its own sphere.

8. Salmond and Gray further improved upon it and considerably modified the analytical positivist approach. They differ from Austin in his emphasis on sovereign as law giver. According to Salmond, the law consists of the rules recognised and acted on by the courts of justice. Gray defines law as judicial organs of the state. This emphasis on the personal factor in law, later on, caused the emergence of the Realist school of law. The Vienna school which is known as Pure theory of law also owes to Austin's theory.

Q. 12. Write an essay on Savigny's historical approach of jurisprudence ?
OR
Discuss Savigny theory of Volkgeist and its relevance in Indian condition ?

Ans. : Introduction : Savigny was born in Frankfurt in 1779. His interest in historical studies was first kindled at the universities and was greatly encouraged when he became acquainted with the study of Roman law. His works - (1) The Law of Possession (2) The History of Roman Law (3) The System of Modern Roman Law. He attacked the idea of codification in Germany as he knew the defects of contemporary codes. According to him Law is a product of the people's life - it is a manifestation of its spirit. Law has its source in the general consciousness (Volkgeist) of the people.

(a) Law develops like language : Law has a national character : A nation to him, meant only a community of people linked together by historical, geographical and cultural ties. Law like language develops with the life of people. The organic evolution of law with the life and character of a people develops with the ages and in this it resembles language. Law, language, custom have no separate existence. The boundaries of some nations may be clearly defined, but not of other nations and this is reflected in the unity or variety of their respective laws. Even where the unity of a people is clear, they may lie within it inner circles of variations such as cities and guilds. He then went to elaborate the theory of Volkgiest

(i) According to him Law is a matter of unconscious and organic growth. Therefore, law is found and not made.

(ii) Law is not universal in its nature. Like language, it varies with people and age.

(iii) Custom not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness.

(iv) As laws grow into complexity, the common consciousness is represented by lawyers who formulate legal principles. But the lawyers remain only the mouthpiece of popular consciousness and their work is to shape the law accordingly. Legislation is the last stage of law-making and therefore, the lawyer or the jurist is more important than the legislators.

(b) Early development of law is spontaneous : According to Savigny earlier stages law develops spontaneously according to the principle of internal necessity. After the society has reached a certain stage of civilization, the different sides of national activities, hitherto developing as a whole divide in different branches and are taken by specialists as jurists, scientists. Law like other subjects now assumes a double existence, on one side a general national life, on the other the distinct science of jurists. The correlation of these 2 elements varies with the elements of life of the people but both more or less participate in the development of law.

(c) His theory reaction against natural law theories : He made the juristic world perpetually conscious of the iceberg quality of law, with its present pinnacle concealing and denying the hidden nine-tenths of its past. His theory came as powerful reaction against rationalism and principles of natural law.

Savigny's influence :

His theory influenced many jurists. It was after Savigny that the value of the historical method was fully understood. Apart from his followers in his own country and in the continent, his method was followed in England by Maine, Vinogradoff, Lord Bryce etc. Savigny's theory traced the evolution of law in various societies. Pollock, Maitland, Holds worth, Holmes in their works pointed out that the course of common law was determined by social and political conditions of particular time. His theory contain the germs of future sociological theories. That's why Savigny is called by some as "Darwinian before Darwin and a sociologist before sociologists." Savigny sounded a note of warning against hasty legislation and the introduction of revolutionary ideas and aspirations based on abstract principle. Savigny vehemently opposed both the assumptions and laid down the propositions which became the thesis of the historical school.

Savigny's theory in Indian Condition :

According to Savigny law is begotten in the People Volk by Popular Spirit (Volkgeist). In India the Volkgeist existed within each society and evolved by manifesting its appearance in the form of customs and traditions. Law has its roots embedded in the hearts of people. It is the "Will" of the people which give rise to the legislations. The driving force of social change, in the Indian context, is the re-discovery of popular spirit. Labour legislation, removal of social evils and disabilities, evil of untouchability and many other similar Acts have been the result of common consciousness. But his opposition to codification was not recognised in Indian condition. Customs are basically based on public opinion which finally take the shape of legislation which embodies the principle of justice which society recognises. Hence law of any particular society is the embodiment and reflection of the spirit of a people united by common language, custom, feelings and common past, who evolve and procreate law. Thus Indian socio-economic policy is the manifestation of the spirit of the people who evolve it.

Q. 13. "The movement of progress society has hitherto been from status to contract" - Maine, Discuss

Ans. 1. Maine believed that societies which do not progress beyond the spontaneous legal development are called Static Societies. But the societies which continued development of law by new methods are called progressive societies. Maine says that there are three methods by which any progressive society can develop its law :

(a) Legal fiction

(b) Equity and

(a) Legal fiction : Legal fiction change the law according to the changing needs of the society without making any change in the letter of law. Maine has defined legal fiction as, "any assumption which conceals or effects to conceal the fact that a rule of law" has undergone alteration, its letter remaining unchanged, its operation being modified. There are innumerable examples of legal fiction in English and Roman Law. The English maxim `the King is dead, long live the King' is one of the good examples of legal fiction. According to Julius Stone, "fictions are swaddling clothes of legal change." They are used for overcoming the rigidity of law.

(b) Equity : Equity consist of those principles which appeal to the conscience of human being. It includes those principles which are considered to be invested with a higher sacredness than those of the positive law. Equity came to rescue the defeat of common law in England. The King entrusted the task of administration of justice to Chancellor who was also the head of the Exchequer. He helped in the administration of civil justice through the principles of justice, equity and good conscience. Henry Maine has defined equity as, "a body of rules existing side by side of the original common law, founded on distinct principles and claiming incidentally to supersede the common law by virtue of a superior sanctity inherent in those principles".

At that time, the common law suffered from three main defects, namely absence of remedy in certain cases, inadequacy of remedy, excessive formalism. These defects were sought to be removed by exclusive jurisdiction, concurrent jurisdiction and auxiliary jurisdiction of equity.

(c) Legislation : Legislation is the most direct and systematic method of law-making. The power of the legislature to make laws has been widely accepted by the courts and the people all over the world.

Disintegration of Status : As to the legal conditions prevailing at the end of the general course of evolution i.e. of Static Societies, Maine calls them "Status". In progressive societies the idea of status is disintegrated. There is a "gradual dissolution of family dependency and the growth of individual obligation comes at its place. The individual is steadily substituted for the family, as the unit of which civil laws take account."

2. The difference between static and progressive societies are those of conditional by their outlook and mode towards life. The eastern societies were theocratic, religious and conservative in their outlook whereas western societies were political, military and secular in character. According to Maine this difference between stationary and progressive societies is one of the greatest secrets of history. The stationary condition of human race is the rule, the progress is the exception.

3. The development of societies was summed up by Maine in the following famous phrase : "If then we employ status to signify the personal conditions only and avoid applying the term to said conditions are the immediate or remote result of agreement, we may say that the movement of the progressive societies has hitherto been movement from status to contract".

4. The principle of social insurance is based on compulsory contribution from employers and employees. Similarly social legislation leads to such "status fetters" on freedom of contract as Workmen's Compensation Act, Minimum Wages Act, Factory Act etc. The growth of trade union business agreement leads to the replacement of individual bargaining by collective group agreements which curtail the freedom of individual on both side by penalising the outsider and compelling the member to submit to collective terms.

5. Dr. Friedmann points out that trends in the world are not uniform. It is an oversimplification to assert that a progressive civilisation is marked by a movement from subjection to freedom, from status to contract and from power to law and a retrogressive civilization is characterised by reverse process.

6. The Industrial Revolution turned many peasant communities into an industrial proletariat who had freedom to enter into contract with the employer. Maine witnessed also the triumph of the industrial North, a community more based on free contract, over the agricultural and feudal south, more favouring status and retaining the institution of slavery, in the American civil war.

Maine's theory of progressive society moves from status to contract is a balanced view of history. His theory preaches a belief in progress and it contained the germs of sociological approach.

Q. 14. What are the fundamental principles of Sociological School and what has been the contribution of this school in legal development ? Discuss

Ans. Introduction

(1) Sociological jurisprudence is the latest major trend in legal theory which is at once linked with discrediting of legal positivism of John Austin and historical pessimism of Savigny both of which had closed their eyes to ever increasing gulf between law & society.

(2) Sociological jurisprudence as such originated as a reaction especially to barren legal postivism which had based law solely on state's coercive power which had categorically rejected pursuits of morality and justice as irrelevant and improper in human relations.

(3) Savigny's insistence on adoring the past values and traditions too stopped the movement for reform and change in society through conscious efforts and planning. Due to dead weight of the past it only linked law to culture and customs of a community by over emphasising the role of unconscious and silent forces which only paved the way to narrow nationalism blocking the growth and development of cosmopolitan and new liberalising tendencies. Hence these lacuna's paved the way for sociological school.

Fundamental principles

(1) Its cardinal feature is its emphasis on functional aspects of legal institutions, doctrines and precepts and consider law merely as a tool or technique to sub-serve varying individual or social interests.

(2) The principle for sociological school is its emphasis on social requirements and purposes which the law must attend and answer rather than upon irrelevant commands or past traditions.

(3) It is a pragmatic approach emphasising philosophy of law for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles, for putting the human factor in the central place and relegating logic to its true position as an instrument.

(4) To resolve immediate problems of society with such tools - legal or extra legal and techniques which promote harmony and balance of interests of society.

(5) The main field for sociological jurist is the effect of law and society on each other. They take law as an instrument of social progress. Therefore, it is concerned with values also. Many jurists of great authority have given their definitions of sociology of law but it is not possible for a single definition to cover the wide range of study under this approach.

Contribution

(1) The view of various jurists that the law must be studied in relation to society has a great impact on modern legal thought. But it should not be taken to mean that other methods have completely ceased to exist. Still there are advocates of natural law though with a variable content, there are Catholic jurist who plead for maintaining a close relationship between law and morals, but these approaches are in many respects basically different from earlier approaches of this type on the subject and are influenced by sociological approach.

(2) Sociological school started with a new concept, meaning and function of law totally different from that of its earlier formal and conceptual character. It stands for tested, probable and concrete legal solutions to pressing social problems and aspirations which require urgent solution.

(3) It rejects traditional idealistic, dogmatic or logical notion of law as dysfunctional, anti-social and a clog undermining social harmony, social justice and social equilibrium. It therefore, maintains that law cannot shut its eyes to the complex social problems and thereby becomes essentially a healer, reconciler and above all a guarantor of social reforms and peaceful change consistent with the principles of humanity, equality and liberty. Law thus becomes a substitute for revolution and conflicts for achieving social good - the ultimate quest of sociological jurisprudence.

(4) It represented a new trend wherein the legal theory adopted a purposive and objective approach treating law as an instrument of social good as heralded by Bentham and Mills in England. Montesquieu, Weber and Durkheim in the continent. Subsequently it is in this contextual form that sociological jurisprudence became interest oriented, interest loaded and interest directed.

(5) Realist school is the outcome of sociological approach. In modern times, social relations are growing more and more complex. The concept of state and its relation with individuals have undergone a drastic change. New interpretations are being given to these changes some under the influence of various political theories and others on the basis of a partial picture of law. Some of the modern theories are no more than an analysis of the legal systems of the countries in which they have been propounded. Thus the social approach policy gave birth to new theories like Realist school, Communist theory, Pure theory of law.

Q. 15. Write an essay on Dean Roscoe Pound's Concept of Social Engineering ?

Ans. Among the advocates of the sociological method, the name of Pound stands pre-eminent. The main points of his legal theory are :

1. Emphasis on functional aspect of law : Pound concentrated more on a functional aspect of law. He defined law as containing "the rules, principles, conceptions and standards of conduct and decision as also the precepts and doctrines of professional rules of art. He stated that the function of law is to reconcile the conflicting interests of individuals in community and harmonise their inter-relations.

2. Pound's theory of Social Engineering : He conceived law as a social engineering whose main task is to accelerate the process of social ordering by making all efforts to avoid conflicts of interests of individuals in the society. Pound classified the various interests which are to be protected by the law under three heads :

(a) Private interests,

(b) Public interests,

(a) Private interests : Private interests to be protected by law are :

(i) Individual interest's of personality, namely, interests of physical integrity, reputation, freedom of volition and freedom of conscience. They are safeguarded by law of crimes, torts, contracts and constitutional laws.

(ii) The interests of domestic relations of persons such as husband-wife, parent-children, marital life.

(iii) The interests of property, succession, testamentary disposition, freedom of contractual relations, association etc.

(b) Public interests : Public interests to be protected by law are:

(i) Interests in the preservation of the state as such;

(ii) State as a guardian of social interests such as administration of trusts, charitable endowments, protection of natural environment, territorial waters, sea shores, regulation of public employment etc.

(c) Social interest : Social interests to be protected by the law are :

(i) Interest in the preservation of peace and order and maintaining general security;

(ii) Interest in preserving social institutions like marriage, religious institutions;

(iii) Interest in preserving general morals by counter-acting corruption, discouraging gambling and invalidating transactions repugnant to current morality;

(iv) Interest in conserving social resources;

(v) Interest in general progress which is to be achieved by freedom of education, freedom of speech and expression, freedom of property, trade and of commerce; and

(vi) Interest in the promotion of human personality.

3. Jural Postulates of Roscoe Pound : In order to evaluate the conflicting interests Pound suggested that every society has certain basic assumptions upon which its ordering rests. These assumptions are called Jural Postulates. Every individual in civilised society must be able to take it for granted that :

(a) he can appropriate for his own use what he has created by his own labour, and what he has acquired under the existing economic order;

(b) the others will act with due care and will not cast upon him an unreasonable risk of injury;

(d) that the people with whom he deals will carry out their undertakings and act in good faith.

To these postulates three more were added by Pound later in 1942, they are :

(e) that he will have security as a job-holder;

(f) that society will bear the risk of unforeseen misfortunes such as disablement as a whole;

(g) that society will bear the burden of supporting him when he becomes aged.

Pound's contribution to jurisprudence is great. He has emphasised "engineering" but has not forgotten the task of maintaining the balance. He has taken a middle way of avoiding all exaggeration but his approach has been experimental. His emphasis on studying the actual working of legal rules in the society, the importance of social-research for good law-making and pointing out the great constructive function which the law is to perform are very valuable contributions to jurisprudence. Pound's influence on modern legal thought is also great and it is under the light of his theory among other things, that the subject is being studied.

4. Law relates to other Social Sciences : The significance of Pound's sociological jurisprudence is of world import as it strikes a fine synthesis between liberty and equality and between freedom and social control through the instrumentality of law. Prof. Allen aptly sums up Pound's contribution as, "The aim of bringing law into closer relation with the other Social Sciences, now commands wide support and has become prominent feature of legal teaching all over the world". Allen further observed, Pound is the moderate of the moderates a relativist with strong conviction of the provisional nature of all legal creeds and expedients. It would not be accurate to describe his attitude as purely pragmatic or utilitarian, he is no enemy of abstract philosophy. But he is impressed by certain limits of legal philosophy which history has constantly illustrated in particular, the influence upon philosophical theory of contemporary exigencies which converts what purports to be absolute truth into a thesis conditioned by circumstances of time and place.

Q. 16. Write detailed note on Ihering's Sociological theory of law ?

Ans. : Ihering (1818-1892)

Ihering was educated at Berlin in Germany. He was a social utilitarian. He rejected the view of historical school. His system develops aspects of Austinian positivism and combines them with principles of utilitarianism as established by Bentham and developed by Mill.

His book `The Spirit of Law' was published in four volumes during 1852- 1865. Later on, he published his principal work, which was translated as `Law As Means to An End' in 1913.

Law is the result of constant struggle

According to Ihering, the development of law like its origin is neither spontaneous nor peaceful. Ihering says that "it is the result of constant struggle or conflict with a view to attain peace and order. Law is the guarantee of the conditions of life of society, assured by the State's power of constraint." The legal philosophy of Ihering greatly influenced the American sociological school of jurisprudence.

Law is to serve social purpose

Ihering takes law as a means to an end. According to him, law is to serve purpose which is not individual but social. When individual purpose comes in conflict with social purpose, it becomes the duty of the State to protect and further social purposes which clash with it. This end may be served either by regard or coercion and the State uses coercion to achieve this. Therefore, `law is coercion organised in a set form by the State'.

In the words of Ihering, "the simplest form of satisfaction of a need, in man as in the animal, lies in his own power. But whereas in the animal, need and power cooincide, this is not the case in man. It is this very disproportion between the two, this insufficiency of his own power, which is the cause by means of which nature forces him to be a man; namely, to look for man, and in association with others to attain those purposes to which he is alone unequal. In his necessity he refers to the outside world and his follows.

"We finally come upon the vital point in the whole organisation of right. This consists in the preponderance of the common interest of all over the particular interests of one individual; all join for the common interests, only the individual stands for the particular interest. But the power of all is, the forces being equal, superior to that of the individual; and the more so greater their number.

"We thus have the formula for social organisation, of force, viz., preponderance of the force which is serviceable to the interest of all over the amount at the disposition of the individual for his own interest; the power being brought over to the side of the interest common to all.

"The form in private law of a combination of several persons for the pursuit of the same common interest is partnership, and although in other respects the State is very different from partnership, the formula in reference to regulating force by interest is quiet the same in both".

Law is not the only means to control social organism

Ihering has made it clear that law alone was not the means to control the social organism. There are some other conditions of social life like climate, topography etc. for which no intervention by law is needed. However, there are certain aspects of social life which can be regulated and controlled exclusively by the intervention of law, such as raising of taxes and revenues. Ihering too defined `interest' in terms of pleasure and pain as Bentham did. Due to this definition, his theory is called `social utilitarianism'. Ihering has also given the theory of punishment which is to the effect that punishment is a means to a social end. It should not be based on retributive or compensatory ground.

According to Friedmann, "Ihering is the `father' of modern sociological jurisprudence." He prepared the more elastic legal technique required to meet new and changing legal problems by his fight against the `Jurisprudence of Concepts'. Moreover, his insistence that law is realised through struggle and self-assertion has effectively opposed the romantic conception of an unconscious manifestation of the Volksgeist through the law."

Criticism of Ihering's Theory

Ihering's theory has been ctriticised for two reasons. First reason is that he suggests that the function of the law is to reconcile the conflicting interests, he has pointed out that problem but has not given any solution for it. Secondly, criticism against Ihering's theory of purpose is that law in fact protects `will' and not the `purpose'.

Q. 17. Explain the part played by Ehrlich and Duguit as a sociological jurist ?

Ans. Ehrlich (1862-1922)

Eugen Ehrlich was born in 1862 at Czernowitz and he became Professor of Roman Law at the University of Czernowitz.

The central point of Ehrlich's thesis is that the law of a community is to be found in social facts and not in formal sources of law. The norms, which govern the social life in fact, are only partly reflected in the formal law of that society. The essential body of legal rules is always based upon the social `facts of law'. The `fact of law' which underlie all laws are usage, domination, possession and declaration of will. These facts regulate the social relations and make the `living law of the people', state-made law is only a part of this great body of law. One may find similarity between Savigny's Volksgeist and Ehrlich's living law but there is one vital difference between the two. In Savigny's view law is tied to the primitive consciousness of the people. Ehrlich locates law in the present day institutions of the society.

His view is similar to Duguit's view when he minimises the importance of State as the source of law but he differs from Duguit in respect of his principle of social solidarity. He says that there is no substantial difference between formal legal norms and the norms of customs or usages, because the sanction behind both of them is the same. If a statute is not observed in practice, it is not a part of `living law'.

Ehrlich has distinguished three types of legal norms. According to him, all legal norms regulate in some way the relation between command or prohibition and the underlying `facts of law'. They do so in different ways :

1. Legal commands or prohibitions may create or deny social facts in the case of repropriation or multiplication of contracts.

2. The protection may simply be given to legal norms purely based on facts of law such as by-laws of associations or corporations, or contracts closely connected are norms directly derived from social facts.

3. Norms may be entirely detached from social facts.

Criticism of Ehrlich's legal theory

First criticism against the Ehrlich's theory is that he makes no distinction between legal norm and other social norms and confuses the whole matter. Secondly, he confuses the position of custom as a source of law within custom as type of law and thirdly, he refuses to follow up the logic of his own distinction between specific legal State norms and legal norms where the State merely adds sanction to social facts.

Friedmann has summarised the weakness of Ehrlich's theory into three heads : "First, it gives no clear criterion by which to distinguish a legal from any other social norm. The interchangeability of both, which is a historical and social fact, does not diminish the need for a clear test of distinction. Accordingly, Ehrlich's sociology of law is always on the point of becoming, a necessarily sketchy, general sociology.

"Secondly, Ehrlich confuses the position of custom as a `source' of law with custom as type of law. In primitive society as in the International law of our time custom prevails both as the source and the chief type of law. In modern society, it is still important in the first, but less and less important in the second role. Modern society overwhelmingly demands articulate law made by a definite law giver. Such law will always, in varying degree, depend on these facts of law, but it does not derive its validity as law from this factual observance. This confusion permeates the whole of Ehrlich's work.

"Thirdly, Ehrlich refuses to follow up the logic of his own distinction between specific legal State norms and legal norms where the State merely adds sanction to social facts. If the former protect specific State purposes, such as its constitutional life, military, financial and administrative organisations, if was obvious a few decades ago and is even more obvious now that these specific State purposes, and with them specific State law norms, continually increase and expand. As modern social conditions demand more and more active control, the State extends its purposes. consequently, custom recedes before deliberately made law, mainly statute and decree. At the same time, law emanating from central authority as often moulds social habits as it is moulded itself."

Ehrlich's contribution

Ehrlich has contributed much to jurisprudence. His theory which came as a vigorous reaction against the analytical jurisprudence is more scientific and comprehensive. It appears that he is influenced by the work of Savigny but he differs from him in many respects. Ehrlich's approach is more practical and purposeful. He concentrates more on the present than on the past. He takes into account the social function of law and he says that in making and administering law, the requirement of society should be taken into consideration. For this purpose, a close study of the social conditions in which law is to operate is necessary. Ehrlich was the jurist to point it out and modern trend of thought is also in favour of such study. Ehrlich was in favour of social justice. By justice he does not mean some absolute principle, but a relative justice changing with time and place.

Duguit was a Professor of Constitutional Law in the University of Bordeaux. He attacked traditional conceptions of State, sovereignty and law and sough to fashion a new approach to these matters from the angle of society.

According to him, the outstanding fact of society is the interpredence of men. This has always existed and becomes more and more widespread as life grows more complex and as Man's mastery of the world increases. No one can live at the present time without depending upon a far-reaching web of services provided by his fellow-men. Water, food, housing, clothing, recreation, entertainment etc. are dependent on other people. This social interdependence is not a conjecture, but an inescapable fact of human existence. All organisation, therefore, should be directed towards smoother and fuller co- operation between people. This Duguit called the principle of "social solidarity". Here Duguit was influenced by Durkheim's work "Division of Labour in Society" which was published in 1893. Durkheim made a distinction between two kinds of needs of men in society. Firstly, the common needs of the individuals which are satisfied by exchange of services. Therefore, the division of labour is the most important fact which Duguit called as social solidarity.

From here, he launched his attack on traditional conceptions of the State, sovereignty and law. All institutions are to be judged according to how they contribute towards social solidarity. Therefore, the State can claim no privilege. At no stage did Duguit deny the existence of an organised unity known as the State.

Duguit's view on State and its functions led him to deny the distinction between private and public law. Both are to serve same end, i.e., social solidarity. Therefore, there is no difference in their nature. Such a division will elevate the State above the rest of the society which Duguit's theory never accepts.

Duguit denies the existence of private rights. With Comte he says that, "The only right which any man can possess is the right always to do his duty." According to him, all laws are only means of serving the end of social solidarity and should be judged by that criterion.

Duruit also denied the existence of rights. He treated `Natural Rights' as myths, since modern research has shown that Man has always lived in society and was never entirely independent. His legal philosophy may be summarised as follows :

(a) He refutes the doctrine of State sovereignty and considers the State merely as an expression of the will of individuals who govern.

(b) The unity of State is not consistent with the collectivist associations.

(c) Law is only an embodiment of duties which an individual is supposed to perform as a part and parcel of the social organisation for furtherance of social solidarity.

(d) His sole emphasis is on interdependence of man as a member of the community.

(e) He contemplates gradual withering away of the State and its replacement by groups or associations which are engaged in the service of the society.

Criticism of Duguity's theory

The first weakness of this theory is that his principle of `social solidarity' is a natural law ideal although Duguit is a positivist and excludes all metaphysical considerations from law. While defining law, Duguit confused it with what the law ought to be, this is the second defect of his theory. Third defect is that he advocated for the minimisation of State intervention at a time when the State was growing to be all important. Another weakness is that his theory is inconsistent at several places.

Q. 18. Realism is not a school of legal theory but it is a movement. Discuss the contribution and weakness of Realist School?

Ans. : Ans. The realist movement is a part of the sociological approach and is sometimes called the left wing of the functional school. It differs from sociological school in this respect that it is little concerned with the ends of law. It concentrates on scientific observation of law in its making and working. This movement is named as realist because this approach studies law as it is in actual working and its effects. They reject the traditional definition of law that it is a body of rules and principles that courts enforce. They avoid any dogmatic formulation. Pragmatism is essentially a postivist outlook which contributed to the emergence of Realist movement.

Professor Goodhart has enumerated basic features of realistic jurisprudence in the following way :

(1) The realist school depends for its importance, not upon any definition of law but upon the emphasis it places an certain features of law and its administration. The most striking feature of this school is the stress they place upon uncertainty of law as a series of single decision.

(2) The second feature is its attack on the use of formal logic in law, which they term medieval scholasticism. According to them the judge in deciding a case reaches his decision on emotive rather than on logical grounds.

(3) The third feature of the realist school is the great weight they place on modern psychology with strong leaning towards behaviourism.

(4) The fourth feature of the realist school is the attack they have made on the value of legal terminology, for according to them, these terms are a convenient method of hiding uncertainty of our law.

(5) Finally, the realists stress on evaluation of any part of law in terms of its effects and an insistence on the worth whileness of trying to find these effects.

Contribution of Realist approach

(1) The Realist movement has made some very valuable contributions to jurisprudence. Their approach to law is in a postivist spirit and they are not concerned with any theory of justice or natural law. They say that the certainty of law is a myth. They plead for a comprehensive approach and examination of all the factors that lead in reaching a decision.

(2) Realists goaded the lawyers to realize the nature of their work. Frank correctly observes that it has contributed in parts to the liberalisation of judges, from enslavement by unduly rigid legal concepts, caused those judges to ground their reasoning on broader and more human rule premises.

(3) Prof. Friedmann says that this approach in its true perspective is an attempt to rationalise and modernise the law - both administration of law and the material for legislative change - by utilizing scientific methods and the results reached in those fields of social life with which this social law is inevitably linked. Allen observed about this prospect and thus interpreted, the Realist school appears as another avatar of the sociological jurisprudence.

(4) Julius Stone also thinks that the Realist movement is a gloss on a sociological approach. What is needed is that this approach should take a more balances view and then it can be of great help in studying legal problems. The recent realist writings are moderate and they have started recognising the importance of principles and rules.

Weakness

(1) The Realists have undermined the importance of legal principles and rules and regard law as a jumble of unconnected decisions. For them, "law never is but is always about to be." Impressed by the variability of decisions they have come to the conclusion that law is not predictable at all but it is only series of applications and executions. But their own phraseology fails to support their contention.

(2) Secondly, their main concentration is on litigation, but there is a great part of law which never comes before the courts.

(3) Thirdly, they launched a vigorous attack against juristic complacency and the myth of certainty but in actual practice we find a great amount of certainty and a lot of transactions are regulated on this basis.

(4) Fourthly, they have exaggerated the human factor in judicial decisions. Undoubtedly, it plays a part but does not mean that judicial determination are the result only of the personality of the judge.

(5) Fifthly, the realist approach of American jurist is based on and is concerned with their own local judicial setting and therefore it does not give a universal method. It can be applied only in a society where the social forces have had their play in the law-making - as in common law systems. In societies, where the will of the legislator dominates every sphere of law, as in totalitarian states, there is no scope for the application of the realist approach.

Q. 19. Discuss the meaning of realism along with the philosophy of Jerome Frank and Holmes ?

Ans. Realism - Meaning explained

The Realists have made some very valuable contribution to jurisprudence. Their main contribution lies in the fact that they have approached law in a positive spirit and demonstrated the futility of the theoretical concepts of justice and natural law. They say that certainty of law is a myth. They plead for a comprehensive approach and examination of all the factors that lead in reaching a decision. Jerome Frank has rightly pointed out that Realist school has sought to liberate the judges from the enslavement of unduly rigid legal concepts and exhorted them to take into consideration the ground realities of social facts while deciding the cases. Professor Friedmann says that this approach in its true perspective is an attempt to rationalise and modernise the law both administration of law and the material for legislative change by utilizing scientific methods and the results reached in those fields of social life with which this social law is inevitably linked.

The main characteristics of the Realist jurisprudence as stated by Goodhart are following:

(1) The realists believe that there can be no definiteness above law as its predictability depends upon set of facts which are before the court for decision.

(2) They do not support the formal, logical and conceptual approach to law because the Court while deciding a case reaches his decision on emotive rather than logical grounds.

(3) They lay greater stress on psychological approach to the proper understanding of law.

(4) Realists are opposed to the value of legal terminology for they consider it as facit method of suppressing uncertainty of law.

(5) The realist school prefers to evaluate any part of law in terms of its effects.

Jerome N. Frank (1889-1957) : Jerome Frank was a practising lawyer since 1912 who served in many Government posts during 1935-41. In 1941, he became a judge in United States. However, it is Law and the Modern Mind first published in 1930 that contains Frank's jurisprudential thought on realism. It is in this work that Frank makes an attempt to demolish what he calls the "basic myth" about law. After Frank became the judge he concentrated his attention from the rule aspect of the law to the scrutiny of the fact-finding process in the trial courts. Thus from rule-skeptic, he turned to fact-skeptic. Frank declared, that law constituted the key factor in the administration of justice. With unrelenting zest, he probed into innumerable sources of error which may enter into a determination of the facts by a trial court. He admitted that legal rules and precedents have considerable value.

Certainty of law is a myth : A very vigorous writer of this school is Judge Jerome Frank. His work presents a very close examination of judicial process and is full of practical illustrations. His thesis is that law is uncertain, "certainty of law is a legal myth." The child like craving for certainty of law in men is due to the psychology which develops from childhood when he gets protection and safety from his father. In other words, it is the father-complex which makes one to think of certainty. According to some critics this is a Frieudian approach in the field of jurisprudence which is not at all necessary. Frank says that it is not proper for lawyers and judges to stick to the myth of legal certainty in the name of precedent or codification. He points out the constructive work which judges and lawyers are required to do in every case. He speaks of the importance and necessity of law making by evaluating the facts of every individual case under the changed social conditions. However, it should not be taken that he wants complete divorce of principle; his view is only to maintain a balance and to develop the law in consonance with the advancement of civilization.

Justice Holmes (1841-1935) : Holmes studied law in a pragmatic manner adopting a realistic attitude to analyse its working in the society. He considers law as a means to protect and promote the collective group interests as compared with the individual interests. He remained the judge of US Supreme Court for more than thirty years and, therefore, he was convinced that judges `can play a significant role in turning law to life's need and satisfaction through his monumental work "The Common Law". He took sociological jurisprudence across the Atlantic. In 1897 he issued a paper in which for the first time seeds of Realism were sown by him when he put forward a novel way of looking at law. He says that if one wishes to know what law is, one should view it through the eyes of a bad man, who is only concerned with what will happen to him if he does certain things. A passage from his address is as follows : "But if we take the view of our friend, the bad man, we shall find that he does not care two straws for the action or deduction, but that does not want to know what Massachusets or English courts are likely to do in fact." Holmes has said that the prophecies of what the courts will do in fact and nothing more pretentions, are what I mean by the law. It has become a tenet of the realist school that a rule of law is a rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged.

Positivist outlook : Two great jurist of Realist school have been traced are Holmes and Frank. Holmes emphasised the study of laws as a rational based on history. For him, the theory is the most important part of the dogma of law and, therefore, he stresses the need for a legal theory. About the same time pragmatism became very popular in America which also contributed to the emergence of realist movement. Pragmatism is essentially a positivist outlook. From abstraction and a priori principles they turn towards fact and actions.

Q. 20. Discuss Kelsen Pure theory of law ?

Ans. Kelsen's Pure theory of law :

1. Kelsen regards jurisprudence as a normative science as distinguished from a natural science. In natural sciences laws are statements of the sequence of cause and effect but in jurisprudence laws do not have a casual connection. According to Kelsen, "State is a synonym for the legal order which is nothing but a pyramid of norms. He derives pure science of law from ought propositions of juristic science. He builds up his pure theory of law on the hypothesis of the "grundnorm" or "basic norm."

2. This grundnorm is not capable of deduction from any principles of pure science of law. It is an initial hypothesis and is incapable of logical proof. For example, Kelsen says that for England this grundnorm would be, "What the crown in Parliament lays down as law." From the basic norm, norm making power develops upon a lower level, from which in turns its flows to a still lower level and so on. At each level in this hierarchy norms can be generated or concretised. The lawlessness of each particular norm will be tested by considering whether or not ultimately it is traceable to the grundnorm. The entire hierarchy of norm-making organs and the process of concretisation of norms is called by Kelsan the legal order of a particular state.

3. The essential foundations of Kelsen's system has been enumerated as following :

(a) The aim of theory of law, as of science, is to reduce chaos and multiplicity to unity.

(b) Legal theory is science, not volition. It is knowledge of what the law is, not the what the law ought to be.

(d) Legal theory as a theory of norms is not concerned with the effectiveness of legal norms.

(e) A theory of law is formal, a theory of way of ordering, changing content in a specific way.

(f) The relation of legal theory to a particular system of positive law is that of possible to actual law.

Implications of Pure theory :

1. Law and State are not different things :

Kelsen denies the existence of State as an entity distinct from law and he also denies the existence of a sovereign as a personal entity. When all derive their power and validity ultimately from the Grundnorm, there can be no supreme or superior person as sovereign.

2. No difference between public and private law :

Kelsen says when all laws derives its force from the same Grundnorm, two entirely different characters cannot be attributed to it on the ground of being a difference in certain respects. No distinction can be made between contracts made by the parties which derive their validity from the same "Grundnorm" on the ground that they protect interests of different nature. According to him, private interests are protected in public interest.

3. No difference between natural or juristic persons :

Kelsan says that there is no difference between physical and juristic persons. "Personality", in law means entity capable of bearing rights and duties. All legal personality is artificial and derives its validity from superior norms.

4. No individual rights :

Kelsen says that there are no such thing as individual right in law. Legal duties are the essence of law. Law is always a system of ought. According to him the concept of right is not basically essential for a legal system. Legal right is merely the duty as viewed by the person entitled to require its fulfilments.

Q. 21. discuss merits and weakness of Kelsen's Pure theory of law ?

Ans. Kelsen's Pure theory of law :

3. The essential foundations of Kelsen's system has been enumerated as following :

(a) The aim of theory of law, as of science, is to reduce chaos and multiplicity to unity.

(b) Legal theory is science, not volition. It is knowledge of what the law is, not the what the law ought to be.

(d) Legal theory as a theory of norms is not concerned with the effectiveness of legal norms.

(e) A theory of law is formal, a theory of way of ordering, changing content in a specific way.

(f) The relation of legal theory to a particular system of positive law is that of possible to actual law.

Implications of Pure theory :

1. Law and State are not different things : Kelsen denies the existence of State as an entity distinct from law and he also denies the existence of a sovereign as a personal entity. When all derive their power and validity ultimately from the Grundnorm, there can be no supreme or superior person as sovereign.

2. No difference between public and private law : Kelsen says when all laws derives its force from the same Grundnorm, two entirely different characters cannot be attributed to it on the ground of being a difference in certain respects. No distinction can be made between contracts made by the parties which derive their validity from the same "Grundnorm" on the ground that they protect interests of different nature. According to him, private interests are protected in public interest.

3. No difference between natural or juristic persons : Kelsan says that there is no difference between physical and juristic persons. "Personality", in law means entity capable of bearing rights and duties. All legal personality is artificial and derives its validity from superior norms.

4. No individual rights : Kelsen says that there are no such thing as individual right in law. Legal duties are the essence of law. Law is always a system of ought. According to him the concept of right is not basically essential for a legal system. Legal right is merely the duty as viewed by the person entitled to require its fulfilments.

Merits of the theory :

1. Positivists theory : Like Austin, Kelsen is a positivist. He believes that legal theory is a science as distinguished from moral norm. He believes in ought norms as distinguished from moral norm and these legal norms derive its validity from some external source.

2. Basic norms - Grundnorm : According to Kelsen legal norms derives its validity from external source that is from a particular "Ought" norm or "sanction". Every legal norm gains its force from more general norm which backs it. Ultimately that hierarchy relates back to an initial norm or initial hypothesis called "Grundnorm" and it is from this norm that all inferior norms derive its force. The Grundnorm is a starting point in a legal system.

3. Hierarchy of normative relations : The science of law is the knowledge of hierarchy of normative relations. The task of legal theory is to clarify the relations between the fundamental and all other lower norms, but not to say whether this fundamental norm itself is good or bad. He distinguished law norms from science norms on the ground that norms of science are norms of "being" while the law norms are "ought". These legal "ought" norms are distinguished from "mortality" norms.

4. Supremacy of International law : Kelsen always stressed that the International law should also be considered a juridical order. According to him as law in the beginning was in customary form without an adequate sanction and assumed the present from after a course of evolution, so the present International law is (like a primitive law) in its early stage and in future it will have all the characteristics which the modern law has. So far as the "Grundnorm" of International law is concerned, Kelsen's points out that it is "Pacta Sunt Servanda". He says that the sanctions of International law are war and reprisals.

5. Legal concepts are logical, precise having scientific practical value : Kelsen made original, striking, valuable contribution to jurisprudence. He has considerably influenced the modern legal thought. His views regarding right personality, state, public and private law have received great support from various quarters. With his scientific precision and mighty and unparallel logical subtlety he analyse the legal order in a most convincing order.

Weaknesses of the theory

(1) Grundnorm - Vague and confusing : As Grundnorm is made up of many elements and any one of these elements alone cannot have the title of Grundnorm. According to historical school, origin of law is in customs and Volkgeist and not in any other source, such as Grundnorm.

(2) Purity of norms - Not maintainable : Purity of norms are not maintained due to two reasons. First, for a proper analysis of legal norms one will have to go to the Grundnorm. In tracing the "Grundnorm" by applying the test laid down by Kelsen himself - "minimum effectiveness" - one will have to look into political and social facts. It will cause adulteration in the "Pure Theory" because the impurity of Grundnorm would infect the legal norms also which emerge out of it. Secondly, the task of deriving legal norm from Grundnorm or the process of concretization - deriving specific norm from more general form - involves the acts of numerous individuals in such deductions and application as judges and legislators. They in their turn give it their individual "creative" touches. The study of such acts is very important. But according to Kelsen, any study of such nature would bring impurity in the theory.

(3) No practical significance : Sociological jurists criticised it on the ground that it lacks practical significance. Prof. Laski says, "Granted its postulates, I believe the pure theory to be unanswerable but I believe also that its substance is an exercise in logic and not in life. Some see Kelsen as beating his luminous wings in vain within his ivory tower.

(4) Natural law ignored : Natural law which considerably affects legal concepts and operates in the society and is incorporated in positive law also. But Kelsen presents a very scientific analysis of legal order, therefore, he could not take these extra legal norms into consideration.

(5) International law - weakest point : A more potent and substantial criticism against Kelsen's view of International law. Kelsen in his attempt to apply his theory an International law runs into a number of inconsistencies and artificially the approach is exposed. His comparison of international law with primitive law is artificiality and no juristic conclusions can be based upon it. He attempts to prove the existence of "Grundnorm" in international law also. He finds this "Grundnorm" in the principle "Pacta sunt servanda". On the question whether this "Grundnorm" comes into existence on the formation of an association of states or states derive their validity and force from Grundnorm, Kelsen leaves both the possibilities open as it is not within the province of the pure theory to investigate into it. The proposition of war and reprisal as a sanction in a legal sense is still more strange. He represents a picture of international law as what it ought to be and not what it is.

The theory was much criticised in the beginning as it propounded something very original and startling but now it is drawing very wide appreciation, study and support from jurists.

Q. 22. Discuss the common characteristics of natural law in the light of Indian laws?

Ans. Characteristics of Natural law

(a) Natural law means the law that is largely unwritten and consists of principles of ought as revealed by the nature of man or reason or derived from God etc. Natural law as such is not a body of actual enacted or interpreted law enforced by courts. It is rather as Earnest Baker remarks a way of looking at things - a spirit of human interpretation in the mind of the judge and jurist. In jurisprudence these are those rules which are considered to be emanated from same superior source (other than any political or worldly authority.) The natural law theories reflect a perpetual quest for absolute justice. In fact, the theories about natural law have not been evolved to explain any given legal system; but rather to serve on ulterior end, namely the fulfilment of the social need of the age.

(b) There is one fundamental difference between natural law and other forms of law. Natural law is eternal and unalterable whereas other forms of law such as common law, constitutional law, international law are subject to amendments and alterations. Another difference is that natural laws are discovered by man whereas other laws are created, enacted, modified and altered. Obedience to natural law is not enforced by an external agency while conformity to every other form of law can be brought by coercion. Natural law has no final written code, jurisprudence, jury, no courts, no judges, no precise penalties for offender, no outward rewards for those who conform to it. Natural law is promulgated by teaching, not by legislation. In short natural law is body of higher law in subordination to which all human laws must be made and not merely a brooding omnipresence in the spies. It is a concept of value helping mankind to control its political destiny, liberties, human rights and fundamental freedom from all omnipotent police states, legislatures and dictators.

(c) Natural law being value-loaded act as a catalytic agent for economic justice, social change and social progress against status quo, stagnation and exploitation. In reality natural law can never be without a role or purpose as it is evident from its missionary and historic role of harmonising, synthesising, ordering, promoting peace, order, justice and change as required in different periods and places to meet the needs of general public against tyranny, injustice and arbitrariness. Natural law serves as defence against ethical relativism. Indeed the idea of natural law originated in answer to a philosophical theory which challenged the obligatoriness of all human rules and even of law itself. This theory arose out of the celebrated distinctions drawn by Greek philosophers between occurrences regulated by laws of nature e.g. the growth of plants, the movement of heavenly bodies and so on. Ethical relativism considers morality as a product of history and convenience, while natural law affirms the existence of certain objective and absolute values.

(d) The roots of this theory are found in the philosophies of the ancient Greek philosophers. It is also responsible for much of the legal and political thinking of the middle ages. According to Natural law theory, the central notion is that there exist objective moral principles which depend on the essential nature of the universe and which can be discovered by natural reason and that ordinary human law is only truly law in so far as it conforms to these principles. These principles of justice and morality constitute the natural law, which is valid of necessity, because the rules for human conduct are logically connected with truths concerning human nature.

Judicial process - Natural law : In the pre-Golak Nath era number of cases it had become amply clear that a situation was developing on account of Supreme Court's nullifying the progressive legislation which was irksome both to Parliament and the executive. There were series of cases where the government lost and these were also the decisions which were linked to enforcement of fundamental rights. In the Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643, the court ruled that Parliament has no power to amend the Constitution so as to take away or abridge the fundamental rights.

Thereafter the validity of 24th and 25th Amendments was challenged before the Supreme Court in Kesavananda Bharti v. State of Kerala, A.I.R. 1973 S.C. 1461, where it was held that every provision of the Constitution can be amended provided in the result of the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features :

(1) Supremacy of the Constitution.

(2) Republican and democratic form of Government.

(3) Secular character of the Constitution.

(4) Separation of powers between executive, legislative, judiciary.

(5) Federal character of Constitution.

The validity of 42nd amendment was challenged in Minerva Mill v. Union of India, A.I.R. 1980 S.C. 1789, in which the Supreme Court reiterated the doctrine of basic structure thereby which it had laid down in Bharti's case. However, the court insisted on the need of harmonious construction. The Indian Constitution is founded on the bed-rock of the balance between Part III and Part IV. To give primacy to one over the other is to disturb the harmony of the Constitution. The harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.

In the case of Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597 which has overruled Gopalan's case, A.I.R. 1950 S.C. 27 has embraced both substantive rights to personal liberty and procedure provided for their deprivation. Maneka case has enriched and enlarged the concept of personal liberty.

Thus a number of cases on personal liberty have enriched Indian jurisprudence on Human rights. Sunil Batra v. Delhi Administration, A.I.R. 1978 S.C. 1675 rescues prisoners from solitary confinement. Hoskot v. Maharashtra, A.I.R. 1978 S.C. 1548 gives the convict the fundamental right to file appeal and the legal aid needed to file such an appeal. Charles Sobraj v. Superintendent Control Jail, A.I.R. 1978 S.C. 1514 has drawn the attention of the courts that imprisonment does not mean farewell to fundamental rights. In Bachan Singh case the court through judicial interpretation ingrafted the concept of reasonableness in the entire fabric of the Constitution as it remarked every facet of law which deprives a person of life or personal liberty would, therefore, have to stand the test of reasonableness, fairness and justice in order to be outside the inhibition of Article 21.

It was observed in A.K. Kraipak v. Union of India, A.I.R. 1970 S.C. 150. The rule of natural justice aim to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it. Natural justice is a great humanising principles intended to invest law with fairness and the principles of natural justice must be observed in the specified manner and their non-observance invalidates the action independently of any proof of prejudice to the person proceed against. In short the rule of audi alteram partem revolves around what is known as reasonable opportunity. It means no man should be condemned without hearing. The meaning, content and scope of natural justice changes from case to case depending on the circumstances of each case breathing new life into the statutory law on the matrix of justice, equity and good conscience.

Q. 23. Comment on revival of natural law in 20th Century and its reasons with suitable illustrations from International and national legal system ?
OR
What do you mean by "natural law with variable content" ?

Ans. 1. Maine believed that societies which donot progress beyond the spontaneous legal development are called Static Societies. But the societies which continued development of law by new methods are called progressive societies. Maine says that there are three methods by which any progressive society can develop its law :

1. Legal fiction

2. Equity and

3. Legislation

1. Legal fiction : Legal fiction change the law according to the changing needs of the society without making any change in the letter of law. Maine has defined legal fiction as, "any assumption which conceals or effects to conceal the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. There are innumerable examples of legal fiction in English and Roman Law. The English maxim `the King is dead, long live the King' is one of the good examples of legal fiction. According to Julius Stone, "fictions are swaddling clothes of legal change." They are used for overcoming the rigidity of law.

2. Equity : Equity consist of those principles which appeal to the conscience of human being. It includes those principles which are considered to be invested with a higher sacredness than those of the positive law. Equity came to rescue the defeat of common law in England. The King entrusted the task of administration of justice to chancellor who was also the head of the Exchequer. He helped in the administration of civil justice through the principles of justice, equity and good conscience. Henry Maine has defined equity as, "a body of rules existing side by side of the original common law, founded on distinct principles and claiming incidentally to supersede the common law by virtue of a superior sanctity inherent in those principles".

3. Legislation : Legislation is the most direct and systematic method of law-making. The power of the legislature to make laws has been widely accepted by the courts and the people all over the world.

DISINTEGRATION OF STATUS :

As to the legal conditions prevailing at the end of the general course of evolution i.e. of Static Societies, Maine calls them "Status". In progressive societies the idea of status is disintegrated. There is a "gradual dissolution of family dependency and the growth of individual obligation comes at its place. The individual is steadily substituted for the family, as the unit of which civil laws take account."

Maine's theory of progressive society moves from status to contract is a balanced view of history. His theory preaches a belief in progress and it contained the germs of sociological approach.

Q. 24. what do you mean by "sources of law" and their various kinds ?

Ans. : Sources of law :

@HEADING = 1. Formal Sources

According to Salmond, formal sources are those sources from which the law derives its force and validity. It is the will of the State, as manifested in statutes or, decisions of the Courts. Professor Allen considers that the conception of a `formal source' is wholly unnecessary since it only means that the State will recognise as law that which is law.

MATERIAL SOURCES

According to Salmond, material sources are those sources from which the matter of law takes its shape. These are of two types :

Legal material sources

Legal material sources are those sources which are recognised as such by the law itself. These sources are authoritative and are allowed by the courts as of right. The legal sources are the only gates through which new principles can find entrance into the law.

Historical material sources

These sources are unauthoritative lacking formal recognition by the law. They have no legal recognition. They operate indirectly and mediately. They influence more or less extensively the course of legal development, but they speak with no authority. They are merely the various precedent links in that chain of which the ultimate link must be some legal source to which the rule of law is directly attached.

Right from the earliest times there has been uniformity. Uniformity is law, in a sense; and law is uniformity. The uniformity, prevailing in Nature taught man of the ways of God and man. But before the evolution of the `syntelie disposition', the mind of man was `synomic', i.e. going by beliefs and habits rather than by reason. Belief comes first and foremost. Even the savages had their sacred beliefs; they had what they called `magic'; magic was their religion, or, if we might say so, their law.

The duties of individuals, in early society, were moral and religious; there were the mores or technical duties. Mores and other folk-ways and habits were different from morals. The mores were compulsory rules - so to say, the law. But the morals were not compulsory.

When the synomic disposition got transformed into the syntelic trait, man began rejecting unreasonable habits and mores, and struck more to the reasonable ones. Magic and mores could be regarded as the original and historical source of law. In India, so much of early law is based on the precepts of religion. The Institutes of Manu and Brehaspati were based on religious precepts; and in the reign of Aurangzeb we find so much of law having its origin in the sacred Koran. In ancient Iran most of the law is found in the holy Vandidad, and is essentially religious.

Decisions of our own courts are binding precedents in our country (in India in the respective States) and are a legal and recognised source of law; but the decisions of foreign courts are not binding in our country, and the same may or may not be recognised; if the same be recognised in our country, that is simply because the judges choose to recognise them; such foreign precedents which are merely persuasive or guiding, but not binding, are historical (and not legal) sources of law; these are historical of our law because much in our law has been derived from these sources and because these sources are not binding precedents but sometimes accepted and voluntarily followed by our courts.

Customers are a historical source of law, for the judges are not bound to follow unreasonable customs. If they follow customs, they do so voluntarily, accepting the reasonable and rejecting the unreasonable ones. But reasonable immemorial customs may be regarded as the legal source of law, because legal effect and recognition are extended to such customs.

Kinds of legal material sources

The legal sources of law are (1) reasonable immemorial customs; (2) judicial contribution by well-reasoned decisions working on the raw material of customs evidenced by witnesses of repute or other sufficient evidence; (precedents heralding to the community the law); (3) Acts of the Legislature which incorporated, developed or modified judicial decisions; (4) Equity - the principles de bonum et aequitas - which subdued the rigour of the law and made law more in consonance with justice; and (5) conventions - agreement and treaties.

Immemorial Customs

Customs may be classified into (1) immemorial, and (2) other than the immemorial ones. Immemorial customs are those which have stood the test of time and have become recognised all over the land.

Customs which were not immemorial were accepted by the judges only when felt it desirable to do so and when they found those customs to be reasonable, for those customs had not that force of law as had the immemorial ones. Customs gave rise to customary law, and were recognised by the courts as compulsory rules of conduct.

Judicial Decisions

The decisions given by the judges come to he known as precedents or case law. A precedent is that which is meant to be followed by others on subsequent occasions. What a judge says is followed by a brother judge in the same court, siting as a single judge. The decision of a superior court, like the High Court, is binding on inferior courts, and conditionally binding upon judges sitting singly in the same High Court, i.e. of the same State. Such decisions are called binding precedents. But the judgments of foreign courts are not binding on our courts here; such foreign judgments have a persuasive or guiding but not a binding efficacy. Our law courts here may follow or refuse to follow them. Such judgments are called persuasive precedents; precedents of this type are historical precedents, in so far as they are not binding on our courts here, excepting those which our judges have chosen to accept or follow.

Acts of the Legislature

Acts passed by a law-making body are an important source of law. Each law passed by a legislature is a contribution to law. But a particular law which is limited in its application to a particular person cannot be regarded as contribution to law.

In India we find our early laws emanating from the edicts of the Emperors and the precepts of the jurists and scholars. Religious principles were mainly incorporated. We have edicts and firmans. Acts of the legislature came as extra; they form what is known as the statutory or enacted law - the lex ab extra.

Equity

Soon the legal system was found too rigid to be good at all times and in all cases. In Rome, the praetor who was the Supreme magistrate of the realm, and, in England, the Lord Chancellor who was the keeper of the conscience of the English Sovereign, and in India the King or the Rana who was the fountain of justice and the final and highest Court before whom the subject could lay his grievances, came to supplement the rigid principles of law by the softening and graceful influence of the voice of conscience.

Convention

Conventions, contractual relations, and treaties between nations may also be regarded as an important source of law. What is in civil law may even be overridden by treaty between two nations. And we have the rules set up by autonomous bodies. Besides, modus et conventio vincunt legem. Conventions create what is known as conventional law.

Sources of law in India

Prior to the British rule in India, Hindu and Muslim who constituted the major population of this country were governed by their personal laws.

Original Hindu law recognised four sources of law :

(i) the Sruiti;

(ii) the Smrities;

(iii) the conduct of the virtures, and

(iv) One's own conscience.

The primary sources of Mohammedan law were :

(i) Quran;

(ii) Sunnat and Ahadis;

(iii) Ijma, and

(iv) Qiyas.

Juristic Work by eminent jurists :

(a) The opinion of the experts and the text book writers on law, sometimes, work as a source of law. In all the mature legal systems they influence and mould the law. Although there is no sanction of the State behind them and there is no binding force except a persuasive value, they are consulted by the courts and are, sometimes, followed by them.

(b) The opinions expressed by renowned writers or eminent jurists have often consulted by the courts and sometimes followed also. In modern times the courts rely upon the quality of text books.

(c) In International law, text books and the opinions of the experts occupy a still important place. Jurists express their opinions on new situations and problems which are followed by the Courts in many cases. Thus they become a part of International law. The International law has still to grow in future and the opinions of the experts would play a very vital role in this field.

(d) In English law, the juristic work of Blackstone, Dicey, Pollock, Salmond, Goodhart etc. have influenced their legal judgments. In the continent the text books have exercised a greater influence on the law e.g. the French Code is greatly indebted to the works of the great jurists Domat and Pothier. The Americal "Restatement of Law" to which so much importance is attached, is nothing but a collection of the opinions of the experts.

(e) In India, The Tagore Law lectures, Mayne's book "Hindu law and usage", B.K. Mukerjee's book "Hindu Religious and Charitable Endowments" have made valuable contributions to various legal subjects. Ameer Ali and Tayabji's work are often consulted on the question of Mohanmedan law. Mulla, Basu, Seervai has produced distinguished work in their respective field. Dr. P.K. Tirpathi has been recognised as a great constitutional jurist by his "Some Insights into Fundamental Rights". Many others have also produced good work. Now both the wings - the legal profession and the academic side - are coming closer to each other and are co-ordinating. Therefore, it is hoped that in future a great number of authoritative text books and weighty expert opinions will appear in this country.

Q. 25. What do you mean by custom as a source of law ? When does custom become law ? How far do you agree that custom is still an important source of law ?

Ans. : Legislative Power of the Governor

213. Power of Governor to promulgate Ordinances during recess of Legislature. - (1) If at any time except when the legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require :

Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if -

(a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or

(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or

(c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance -

(a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and

(b) may be withdrawn at any time by the Governor.

Explanation. - When the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void :

Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.

Governor's Ordinances. - The ordinance-making power of the State Governors, subject to certain additional limitations, is similar to that of the President under Article 123. Firstly, the State Legislature, and in the State having bicameral Legislatures both the Houses, must not be in session. Even if one House is prorogued to enable the promulgation of an ordinance this condition is satisfied. Secondly, the Governor must be satisfied that circumstances exist which render it necessary for him to take immediate action. It is the Governor and he alone who has got to satisfy himself as to the existence of circumstances necessitating the promulgation of an ordinance and the existence of such necessity is not a justifiable matter which the courts could be called upon to determine by applying objective tests. Thirdly, the ordinance must be laid before both Houses of the State Legislature when they assemble, and shall cease to have effect at the expiration of the sixth week from the date of their reassembly unless it is approved earlier by the Houses. But actions taken and concluded under an ordinance are fully effective and valid even if the ordinance is not placed before the Legislature and is allowed to lapse. Fourthly, the ordinance- making power of the Governor is coextensive with the legislative powers of the State Legislature. He can issue ordinance on matters on which the State Legislature can make laws, namely, subjects enumerated in List I and List III, Schedule VII. An ordinance also has the same effect as an Act and is subject to the same constitutional immunities and disabilities as an Act. It is an exercise of legislative power and like a legislation it can also be challenged on grounds of mala fides.

The Governor, however, cannot promulgate an ordinance without instructions from the President if : (i) a Bill containing the same provision would have required previous sanction of the President for the introduction thereof in the State Legislature, or (ii) the Governor would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President, or (iii) an Act of the State Legislature containing the same provisions would have been invalid unless having been reserved for the consideration of the President it had received his assent.

In D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579 the petitioner through his research found that a large number of ordinances were being repromulgated in the State of Bihar for as many as 14 years which he challenged as a fraud on the Constitution. Accepting the petitioner's plea the Supreme Court held that the exceptional power under Article 213 cannot be used as a substitute for the law-making power of the State Legislature and, excepting very rare cases where for shortage of time the legislature could not convert an ordinance into an Act and continuance of the ordinance is necessary in the public interest, that an ordinance can be repromulgated but not otherwise. Accordingly, the court invalidated the Bihar Intermediate Council Ordinance, 1985 which was kept alive through repromulgation since 1983.

Proviso to clause (3). - The proviso refers to an ordinance on a matter in the Concurrent List and should be read along with Article 254. With respect to matters enumerated in the Concurrent List, both the Union and State Legislatures are competent to make laws, but if a State law is repugnant to an Act of Parliament or existing law on the same subject, the State law shall, to the extent of repugnancy, be void. Article 254(2) admits an exception to this rule. It enacts that where a State law, after it has been passed by the legislature, is reserved for the consideration of the President and the President gives his assent thereto, that law, in spite of its repugnancy to a previously passed law of Parliament or an existing law, shall be valid and operative in the State. The proviso applies the principle contained in Article 254(2) to ordinances made by the Governor with this difference that a repugnant ordinance will be saved if it has been made in pursuance of instructions from the President.

Q. 26. discuss the precedent as a source of law with the help of some landmark judgments ?

Ans. Precedent is defined as a previous instance or case which is or may be taken as an example of rule for subsequent cases or by which some similar act or circumstances may be supported or justified. The importance of the decisions as a source of law was recognised even in ancient times. In theological books we can find numerous instances of it. The great importance attached to the judicial precedents is a distinguishing feature of the English legal system. The courts are performing a very valuable creative function in modern times. The role of the Courts is assuming importance and their field of activity is rapidly widening. It is the creative spirit that desires the removal of the shackles of the binding precedents. In India this doctrine is not likely to undergo any considerable modification. This doctrine has helped in bringing national integration and uniformity in law and will cause uniform development of law. Numerous illustrations can be presented from the laws of various countries which show that courts with their creative function kept the law abreast with time without any formal change in it. We must admit openly that precedents make law as well as declare it. Original precedents are the outcome of the intentional exercise by the courts of their privilege of developing the law at the same time that they administer it. For the application of a precedent, a judge is made to compare the relevant facts of the case the decision of which is the precedent with the facts of the case before him.

The law declared by Supreme Court is binding on all the courts of the country. The law declared is added as an authoritative guide for lower courts. Supreme Court is the highest court of Indian judiciary having very wide power of appellate, writ, revisional and in some other cases, original jurisdiction.

In Manganese Ore (India) v. R. Asst. Commr., A.I.R. 1976 S.C. 410, 413, it was held that stare decisis is a part of precedent. It is that principle which plays a valuable role and cannot be departed unless there are extra ordinary or special reasons to do so. It is not easy for Supreme Court to depart from its original decisions. It is only in rare cases where court is of the opinion that earlier decision is erroneous and is detrimental to the interest of the public at large. But where there is true and practical difficulty in following the earlier decision, the Supreme Court will not hesitate in departing from it. It was held in K.C. Dora v. G. Annamanaidu, A.I.R. 1974 S.C. 1069, 1083. Krishna Iyer J. stated that precedents should not be petrified nor judicial dicta divorced from the socio-economic mores of the ages. Judges are not prophets and only interpret laws in the light of contemporary ethos. To regard them otherwise is unscientific.

To maintain uniformity and certainty it becomes obligatory to follow decisions of higher court by lower courts. The higher court may depart from their own decisions keeping in view the interest or welfare of public. The new circumstances and conditions in the changing socio-economic context may depart from their earlier pronouncements or principles. In Gajapathi Rao v. State of Andhra Pradesh, A.I.R. 1964 S.C. 164. English decisions have only persuasive value in India. Therefore decisions of English Courts even if at variance with one of the Supreme Court then the decision of Supreme Court will hold validity. In another case Mamleshwar v. Kanahaiya Lal, A.I.R. 1975 S.C. 907, 909 Justice Krishna Iyer delivering the judgment said, "We do not intend to detract from the rule, that in exceptional instances, where by obvious inadvertance or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case an obstrusive omission."

In State of West Bengal v. Corporation of Calcutta, A.I.R. 1967 S.D. 997, the doctrine of stare decisis is not an in flexible rule of law and cannot be permitted to perpetuate our errors to the detriment the general welfare of the public or a considerable section thereof. In constitutional matters which effect the evolution of our policy, we must more readily do so than in other branches of law, as perpetuation of mistake will be harmful to public interest. While continuity and consistency are conducive to the smooth evolution of the rule of law, hesitancy to set right deviations will retard its growth.

Though nobody can deny that the precedents have developed the common law. In recent years, the lower courts have departed from the strict rules of stare decisis. The rule laid down in Taylor's case by the court of Criminal Appeal and in Young's case` by the Court of Appeal have pointed out a new way to lessen the rigour of the doctrine. Constant and open attacks on the doctrine of stare decisis has modified its earlier practice of rigid adherence to earlier decisions. It is the basic principle that if judges have woefully misinterpreted the mores of their day are no longer those of ours, they ought not to tie, in helpless submission the hands of their successor.

Q. 27. Explain the importance of Precedent as a source law with respect to the doctrine of stare decisis as a binding force ?

Ans. Precedent is defined as a previous instance or case which is or may be taken as an example of rule for subsequent cases or by which similar act or circumstances may be supported or justified. According to Gray - "A Precedent covers everything said or done which furnishes a rule for subsequent practice." According to Keeton : "A judicial precedent is a judicial to which authority has in some measures been attached." In general use, the term precedent means some set pattern guiding the future conduct. In the judicial field it means guidance or authority of past decisions for future cases. Only such decisions as lay down new rule or principle are called judicial precedents. It is the attribution of authority that makes a judicial decision a judicial precedent. The application of such judicial precedents is governed by different principles in different legal systems. These principles are called the "doctrine of precedent."

Importance of Precedents

(1) Ancient law :

The importance of decisions as a source of law was recognised even in every ancient times. In theological books we can find numerous of instances about it. Sir Edward Coke, in the preface to the sixth part of his report, has written that Moses was the first law reporter. In the case of the daughters of Zelophe - had, narrated at the beginning of the 27th Chapter of the Book of Numbers the facts are stated with great clearness and expressly as precedent which ought to be followed. In ancient legal systems of Babylonia and China the judicial decisions were considered to be of great authority and later on, they were embodied in the code of law.

In Modern legal system : Among the modern legal systems the Anglo-American law is judge made law. It is called "Common Law". It developed mainly through judicial decisions. Most of the branches of law, such as tort have been created exclusively by the judges. The constitutional law of England especially the freedom of the citizens, developed through judicial decisions. Not only in municipal law but in international law also the precedents have their importance. The decisions of the Court of International Justice are a very important source of international law.

(1) Respect for opinion :

It shows respect for the opinion of one's ancestors. Blackstone said that though their reason be not obvious at first view, yet we own such a deference to former times as not to suppose that they acted wholly without consideration.

(2) Authoritative evidence :

Precedents are based on customs and therefore they should be followed. Courts follow them because these judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of common law.

(3) Certainty - Conformity :

Precedents bring certainty in law. If courts donot follow precedents and the judges start deciding and determining issues every time afresh without having regard to the previous decisions on the point, the law would become most uncertain.

(4) Flexibility in the law :

Precedents bring flexibility in the law. Judges mould and shape the law according to the changed socio-economic conditions and thus brings flexibility in the law.

(5) Scientific development of law :

According to Parke, "It appears to be of great importance to keep the principle of decision steadily in views, not merely for the determination of a particular interest but for the interest of law as a science."

(6) Precedents guide judges :

By following precedents judges are prevented from any prejudice and partiality. By deciding cases on established principles, the confidence of the people in judiciary is strengthened.

As a matter of policy, decisions once made on principle should not be departed from the ordinary course. When reliance has been made on a decision and the people have adjusted their rights and liabilities according to it, they should not be disappointed by an overruling of such decision.

Stare decisis - a binding force :

In the English legal system precedents have got great authority and the doctrine of stare decisis is its singular feature. The principle of stare decisis is nothing more than as observed by Dowrick, in justice. According to the English Common lawyers (1961 ed., P. 195) it is a precipitate of the notion of legal justice. In other words, it is the principle that judicial decisions have a binding character. In Vidya Charan v. Khubchand, A.I.R. 1964 S.C. 1691, Privy Council held that judicial decisions have a binding effect.

The doctrine was developed consciously from very early times. But this doctrine faced criticism by eminent jurists. It was strongly advocated that the House of Lords should give up this doctrine on the basis of observation made by Lord Walson in Nor denfiled's case that public policy decisions cannot possess the same binding authority as decisions which deal with and formulate principles which are purely legal. Some eminent judges also said that House of Lords are free to depart from precedent in matters, in which public policy is concerned. Pollock's view, "No other Court of last resort in the world, it is believed has fettered its own discretion in this way." Lord Wright has also criticised this doctrine on the same grounds. Dr. Goodhart, in his book "Precedents in English and Continental Law" has refuted very forcefully, logically and convincingly all the arguments put forward in support of stare decisis. Salmond : "The growth of case law involved the gradual elimination of that judicial Liberty to which it owes its origin. In any system in which the precedents are authoritative the courts are engaged in forging fetters for their own feet." Thus there grew a strong feeling against the doctrine of stare decisis. After so much of criticism, their lordships nevertheless recognised that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of law.

Advantages of stare decisis :

The doctrine of stare decisis or the binding effect of the decisions on the very court which delivered it, it is said that it brings certainty, uniformity and scientific development of law. This doctrine has been, however, shorn off to a great extent, its rigours. If there is any decision which is absolutely wrong, it can be set aside by an Act of the parliament which has the power to abrogate a decision.

Stare decisis - No rigid adherence

In recent years, the lower courts have departed from the strict adherence of stare decisis. The rule laid down in Taylor's case, Young's case by the court of Appeal have pointed out a new way to lessen the rigour of the doctrine. House of Lords has modified his earlier practice of strict application and held that they can depart from previous decision when it appears right to do so.

Stare decisis - Reliable source

The English judges have occupied a very powerful and authoritative position. Except in few instances, court have delivered frank and impartial judgments. With the establishment of the supremacy of the parliament judiciary too became independent and impartial. On occasions the judges have expressed the bitterest criticism against the government and voiced the feelings of the people.

The corrective and vigilant legislation on the basis of valuable observations and practical suggestion have always has a binding effect.

Q. 28. Critically examine the value of precedent as a source of law ?

Ans. Meaning of Judicial Precedent

1. Judicial precedent is an important source of law. A precedent may be defined as a statement of law found in the decision of a superior court, which has to be followed by that court and by courts inferior to it.

2. It is a distinguishing feature of the English legal system since most of the common law is unwritten and owes its origin to judicial precedents. According to Salmond, a judicial precedent speaks in England with authority, it is not merely the evidence of law but a source of it and the courts are bound to follow it.

3. A precedent is statement of law found in a judicial decision of a High Court or a superior court, meant to be followed by the same court as also by subordinate courts. If judges were free to decide contrary to decisions in decided cases, then the law and the fate of the litigants would hang on the fancy of individual judges following, as far as sensible and practicable, the principles conflict - a wilderness, hardly law. The term "law" involves and be speaks of uniformity. That uniformity can be achieved by the judges following as far as sensible and practicable, the principles of law laid down by fellow-judges. The judges herald to the world the law, through precedents. Hence the importance of precedents - a fortiori so prior to the passage of statutes.

Importance of precedent

1. Salmond pointed out that the importance of judicial precedents has always been a distinguishing characteristics of English law. But Salmond goes further and maintains that the judges of the English courts have imposed their own views of law and justice upon the whole realm.

2. Surely the judges could not have ignored the mores, the customs, usages and habits of the people. No doubt they worked upon the raw material of custom and declared their own laws, but on the basis of their decisions surely was custom.

3. The common law of England is the result of precedents but these precedents have been, to some extent at least, based on the recognised, reasonable and time-honoured customs and usages of the people. In England the bench has always given law to the bar. The lawyers, on the whole, do help the bar, by citing precedents and explaining the law.

4. The common law of England is, therefore, custom + the contribution of the judges making, on the total, the "Precedent". But this of course, cannot be universally true. There must be some precedents, no doubt irrespective of any custom and evolved only out of the wisdom of the judges who after hearing the ingenious arguments of the barristers, made and gave the law to the bar as also to the realm. Moreover, the principles of equity were solely the result of judicial pronouncement.

Precedent as a source of law :

1. Judicial precedent when speaks with authority, the embodied principle becomes binding for future cases and it thus becomes a source of law. Blackstone has pointed out that it is an established rule to abide by the former precedents where the same points come again in litigation.

2. Authoritative precedents are the legal source of law, in so far as they are binding on the judges. And persuasive precedents are the historical source of law, in so far as they have only a persuasive or guiding efficacy and thus provide a historical basis on which the law may be built by the judge if he is favourably inclined to that precedent and accepts it.

3. Each original precedent, laid a new pillar of law and helped in the growth and development of the common law of England. Each declaratory precedent further strengthened and confirmed each original precedent, thereby making the law certain and safe to be followed. The role of precedent in the making of law is indeed very great.

4. The doctrine of precedent has, as pointed out by Salmond, two meanings -

(i) a strict sense

(ii) a loose sense

In strict sense; Precedents have great value and should be regarded as authoritative and should be followed except under certain circumstances.

In loose sense, the doctrine of Precedent implies that precedents are reported judgements of the law courts meant to be cited, and that these judgments will probably be followed by the judges.

5. Precedents carry some legal principles. The legal principles on which a case is decided is called a ratio decidendi. The ratio decidendi means the reasoning factor behind the decision. The ratio decidendi refers mainly to question of law - abstract questions.

6. Ratio decidendi is that principle of law on which a judicial decision is based. A precedent has a ratio decidendi i.e. the basic principle on which it rests. The ratio decidendi is the very heart of a precedent. This abstract principle laid down in a particular case is followed by judges thereafter on issues.

7. If there is no precedent, how is the judge to decide the case ? He must himself make a precedent - an original precedent. It has sometimes been said, "If the matter is not covered by authority, it must be decided on principles". This statement means that wherever a judge finds that there is already an authoritative precedent on the point or points in issue, he should follow that precedent; but where the judge finds it an open question - without any precedent - he should decide the case on principle, looking to the general trend of law, considering analogies, arguments of counsel, principles of equity, and then decide according to propriety.

8. A judicial precedent is purely constitutive in nature and never abrogative. It can create law but cannot alter it. The judges are not at liberty to put their own views in place of a settled law, they can only fill the gaps and remove imperfections of the existing law. Precedents bring certainty in law. In other words, precedents bring logical perfection in law and put the law in the forms of principles which bring about a scientific development of law.

Q. 29. What is legislation and its kinds ? Identify its place amongst other sources of law ?

Ans. Meaning :

(1) Legislation is that source of law which consists in the declaration of legal rules by a competent authority. When used in wider sense, the term includes all methods of law-making but when used in strict sense, legislation is the laying down of legal rules by a sovereign or subordinate legislator.

(2) Law-making by legislators is different from the law-making of judges. Judges create law only for the case in dispute while legislators lay down rules purely for the future and without reference to any actual dispute.

(3) Law has its source in legislation may be most accurately termed "enacted law", all other forms of law are "unenacted."

(4) In its ordinary use it may include the law made by any source such as precedents, customs, conventional law etc. Sometime, the term is used to include every expression of the will of the legislature whether it lays down a legal rule or something else, such as declaration of war or peace or ratifying a treaty with a foreign state etc.

(5) Legislation is an advanced method of legal development and is the characteristic mark of mature legal systems.

(6) Legislation is considered to be a superior and more authoritative source of law having de jure recognition.

Kinds of Legislation

(A) Supreme and Subordinate

(B) Direct and indirect

(a) Supreme and Subordinate Legislation :

(A) Supreme Legislation : Legislation which proceeds from the sovereign power of the state is supreme legislation. It is incapable of being repealed, anulled or controlled by another legislative authority. The British Parliament is the true sovereign law-making body because there is no external restraint on its absolute authority. In India, Parliament is sovereign but not supreme although it possesses the power of supreme legislation.

(a) Subordinate Legislation : Subordinate legislation is that which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or supreme authority. There are following five forms of subordinate legislation.

(i) Colonial : The powers of self-government entrusted to the colonies and other dependency of the crown are subject to the control of the Imperial legislature which may repeal, alter or supersede any colonial enactment.

(ii) Executive : The legislature i.e. the Parliament quite often delegates its rule-making power to certain departments of the executive organ of the government. The rules made in persuance of this delegated power are executive legislation but they may be repealed or superseded by the legislature whenever required.

(iii) Judicial : The superior courts have the power of making rules for the regulation of their own procedure, these rules are termed judicial legislation.

(iv) Municipal : Municipal authorities are entrusted by the law with powers of establishing special law for the districts under their control. This is municipal legislation and sometimes also termed as bye-laws.

(v) Autonomous : The above four type of subordinate legislation proceed from the subordinate departments of the state. However, in exceptional cases this law-making power is entrusted to private hands. The law gives to certain groups of private individuals limited legislative authority touching matters which concern themselves, eg. railways and universities.

(B) Direct and Indirect Legislation

(a) Direct legislation : The framing of laws by the legislature is direct legislation. Colonial legislation is a direct legislation because here law-making power is exercised by a legislative authority.

(b) Indirect legislation : When legal principles are declared by some other sources to whom law- making power is confided by the legislative, it is known as Indirect legislation. Except colonial legislation all other forms of subordinate legislation are indirect legislation.

Delegated legislation :

When law-making power is conferred by the legislature upon some other body and that other body declare laws, it is called delegated legislation and the legislative power is said to be delegated. The committee on Minister's power said that delegated legislation has two meanings :

(i) Firstly, it means the exercise of power that is delegated to the executive to make rules.

(ii) Secondly, it means the output or the rules or regulations etc. made under the power so given.

Conditional legislation : When legislature itself enacts the law but gives the power of determining when it should come into force or when it should be applied, then the legislation is said to be conditional legislation. In this case there is no delegation of power. Conditional delegation takes place where the legislature empowers the executive to :

(i) extend the operation of an existing law to an area or territory;

(ii) determine the time of application of an Act;

(iii) determine the extent and duration within which it should be operative;

(iv) introduce a special law if the contemplated situation has arisen in the opinion of the government.

The Supreme Court has made clear the distinction between subordinate and conditional legislation.

In Re Delhi Laws Act, AIR 1951 SC 347 the court observed that when an appropriate legislature enacts a law and authorises an outside authority to bring it into force in such area or at such time as it may decide that is conditional legislation and not delegated legislation. The Supreme Court in Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 observed :

"In conditional legislation the delegate's power is that of determining when a (legislative declared rule of conduct shall become effective.... and the latter involves delegation of rule-making power which constitutionally may be exercised by the administrative agent".

Growth of Delegated Legislation :

The main features which contributed to the growth of delegated legislation is as follows :

(i) The growth of delegated legislation is the outbreak of welfare state. The Parliament hardly has time to deal with this wide range of legislation efficiently and, therefore, it concentrates only on defining the essential legislative principles and leave the details to be drawn by the executive.

(ii) The Parliament found it difficult to lay down details especially in certain fields of technical nature and, therefore, entrusted this task to the departments and Ministers concerned.

(iii) Delegated legislation is also necessary to meet unforeseen contingencies. It provides for a power of constant adaptation to unknown future conditions without the necessity of amending the legislation.

(iv) Delegated legislation is also necessary to meet the cases of emergency arising out of war, floods, insurrection etc. Therefore, executive must be fully equipped with rule-making powers so that it may take proper remedial action immediately without waiting for the law to be passed.

Control of Delegated legislation :

(1) The Procedural Control.

(2) Parliamentary Control.

(3) Judicial Control.

Rule of conduct shall become effective and the delegated legislation involved delegation of rule-making power to an administrative agent. That mean that the legislature after having laid down the broad principles of its policy in the legislation, can leave details to be supplied by the administrative authority.

In implementation of the modern socio-economic welfare schemes legislature formulate the scheme and leaves it to the administrative authority as to when and where to implement them.

Legislation and other sources of law :

In England a distinction is made between statute law or written law and the common law. Only the former is called legislation. In India, however, there is no common law. Here legislation or the enacted law can be distinguished from customary and personal law. In modern times legislation has become the most important source of law.

According to Analytical jurists :

Analytic jurists emphasise the importance of legislation. They say that law can be made only through legislation. They regard the judge made law as an unauthorized encroachment upon the powers of a legislator to make law. About customs they say that they are not law, but only a source of law.

Historical jurists :

Historical jurists attach no importance to legislation. According to them, it is not possible to make law by legislative action. At the very highest, we may say that legislation only furnishes an additional motive to influence conduct. The function of legislators, is according to these jurists, is only to collect customs and give better form to them.

It is submitted that both the views need modification. In modern times, legislation is the most potent source of law. In the early times there was no legislation. The relations and conduct of individuals were regulated by customs. Legislation take its birth when the state comes into being. With the advancement of society legislation starts replacing custom. In the beginning legislation only embodies customs. But when new problems arise, law is made by legislation. In civilised society it became the exclusive source of law. Maine rightly observes that "the capital fact in the mechanism of modern society is the energy of legislature." Since the 19th Century in civilised countries legislation has become the dominant law-making force. In recent years, the sphere of legislation has very much widened. Statutes regulate even the most ordinary conduct of individuals, such as, walking on the road. Thus in modern times, legislation is the most important source of law.

Legislation is that source of law which consists in the declaration of legal rules by a competent authority. When used in wider sense, the term includes all methods of law-making but when used in stricter sense, legislation is the laying down of legal rules by a sovereign or subordinate legislator. Law which has its source in legislation may be most accurately termed "enacted law", all other forms of law are "unenacted".

Legislation is an advanced method of legal development and is a characteristic mark of mature legal system. The existence and authority of legislation is de jure, and its authority lies in the express will of state. Legislation is considered to be superior and more authoritative source of law as compared to other sources of law. According to Salmond, "So great is the superiority of legislation over all other methods of legal evolution, that the tendency of advancing civilisation to acknowledge its exclusive claim and to discard other instruments as relics of the infancy of law". Legislation is the most recent and powerful source of law. Now a days customary law and precedents are treated only supplementary to the enacted laws. Legislation is not merely the source of law but it is equally effective in abolishing that which already exists. Legislation fulfills the requirement of natural justice which makes rules for future cases in codified form. They are clear, easily available, general in its application and are more reliable.

Whereas customs had their sway mainly in a primitive society customs are either abrogated or embodied in legislation with the advancement of civilization. On the other hand, precedents can create law but cannot alter it and it overlooks the fundamental rule of natural justice. Therefore, legislation is one of the most vital and important source of law.

Q. 30. What is Ratio Decidendi in a judicial precedent ? Distinguish it from Obiter Dicta. Is Obiter Dicta of the Supreme Court binding on the Courts ?

Ans. : (b) Ratio decidendi and obiter dictum

Ratio decidendi generally has two aspects :

(i) A concrete decision binding on the parties to the litigation and, therefore, having practical consequences; and

(ii) A judicial principle, which is general in nature and which is the basis of the concrete and practical decision, operates as a precedent and which has the force of law. This general principle applied in a particular decision is known as the ratio decidendi of the case.

The term "Ratio decidendi" means reason of the decision. It differs from "Res judicata" which is the decision given in a particular case and which is conclusive between the parties to the case.

Every decision decides something generally which operates as against the whole world and also something which is only for the parties inter se. What it decides generally is the ratio decidendi or the rule of law for which it is the authority. According to Salmond, the concrete decision is binding between the parties, but it is the abstract ratio decidendi which has the force of law as regards the world at large. This rule or proposition or the ratio, can thus be described us the rule of law applied by and acted upon by the court.

Professor Goodhart observed that ratio decidendi is not necessarily the preposition of law stated in a judgment because the preposition may be broader than necessary or it may be even narrower. According to him, ratio decidendi is nothing more than the decision based on the material facts of the case.

The case of Bridges v. Hawkesworth, (1851) 21 LJ 2B 75 is a good illustration of ratio decidendi. In this case, a customer found some money on the floor of the shop. The court applied the rule of "finders-keepers" and awarded possession of money to him rather than to the shopkeeper. The ratio decidendi of this case is that finder of goods is the keeper i.e. has the right to possession over it. However, in 1896, in South Staffordshire Water Company v. Sharman, (1896) 2 QB 44, where the defendant found two gold rings in a mud of pool owned and occupied by the plaintiffs, the court refused to apply the "finder-keepers" rule expressed in Bridge's case on the ground that in that case money was found in a public place i.e. on the shop floor but in this case it was found in a pool which was private.

According to Professor Keeton, ratio decidendi is a principle of law which forms the basis of decision in a particular case.

According to Rubert Cross, ratio decidendi is a rule of law expressly or impliedly treated by the judges as a necessary step in reaching his conclusion.

Obiter Dicta :

Judges often express legal opinion on issues which they are not asked to decide. These statements of law, in fact, not necessary for the decision, are termed obiter dicta. The difference between ratio decidendi and obiter dicta is that while the former is the general principle of the case and the latter is what the judge said unwantedly, just by the way.

Professor Goodhart defined obiter dicta as "a conclusion based on a fact the existence of which has not been determined by the court."

In Keeton's JURISPRUDENCE, obiter dicta are described as "statement of law made by a judge in the course of decision, arising out of the circumstances of the case, but not necessary for the decision".

Generally, obiter dicta merely possess persuasive efficacy because they are the dicta said just by the way, and they do not have any binding authority. In India, the obiter dicta of the Supreme Court are binding on the various other courts, provided that an obiter dictum is on a question that arose for determination by the Supreme Court.

Lord Sterndale demonstrates obiter dicta in the following words:

Dicta are of different kind and of varying degree of weight. Sometimes they may be called almost casual expressions of opinion upon a point which has not been raised in the case, and is not really present to the judge's mind. Such dicta, though entitled to respect due to the speaker, may fairly be disregarded by judges before whom point has been raised. Some dicta, however, are deliberate expressions of opinion given after consideration upon a point clearly brought and argued before the court.

Distinction between ratio decidendi and obiter dicta :

Ratio decidendi literally means reason of the decision. It is the general principle which is deduced in a case, whereas obiter dicta literally means something said by the judge by the way, which does not have binding authority.

The distinction between the two can be understood from the facts and decision in R. v. Franklin (1883)15 COX 163. In this case, in the month of July the deceased was bathing in sea at Brighton sea-beach. The accused stole a big box from a hotel at the sea-beach and threw that into the sea which struck him and caused his death. The accused Franklin was produced on the charge of manslaughter before the Court of justice. The Court give him a sentence of two months imprisonment. According to Justice Field, the ratio decidendi of this case was :-

(i) that if a person while committing a wrong or as a consequence of the wrong causes death of a person, he cannot be held guilty for manslaughter because of the reason that a death has been caused due to his act.

(ii) A person who causes death of another person due to his gross negligence, shall be guilty for manslaughter.

In this case Justice Field, expressed a view by way of obiter dicta that even if the prosecution succeeds in proving that the alleged tort was committed by the accused, he shall not be guilty of manslaughter until jury finds guilty for this offence.

Binding effect of "Obiter Dicta" :

The decisions given by the Supreme Court are binding on all the judicial tribunals of the country. This authority to the Supreme Court decisions has been given, in unequivocal words, by the Constitution :

Article 141 runs :

"The law declared by the Supreme Court shall binding on all courts within the territory of India".

The term `law declared' means not only the ratio decidendi of a decision but it includes an obiter dictum' also provided it is upon a point raised and argued.Bimla Devi v. Caturvedi, AIR 1953 Allahabad 613 at p. 616; See also Kishori Lal v. Devi Pd., AIR 1950 Pat. 50; Ram Surat Singh v. Ram Murat Singh, AIR 1955 All 543; Babu Nandan v. Mst. Sumitra, AIR 1961 All. 872; Sandhu Singh v. State, AIR 1962 All. 193; Wasudeo v. State, AIR 1976.

However, it does not mean that every statement contained in a judgment of the Supreme Court has the binding effect.

"Judicial property, dignity and decrum demand that being the highest judicial tribunal in the country even the obiter dictum of the Supreme Court should be accepted as binding. Declaration of law by that Court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that court would be attracted by Article 141. Statements on matters other than law have no binding force. Several decisions of the Supreme Court are on facts and that Court itself has pointed out in Gurcharan Singh v. State of Punjab, 1972 FAC 549 and Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195 and as on facts no two cases could be similar, its own decisions which were essentially on questions of fact could not be relied upon as precedents for decision of other cases.State of Kerala v. Vasudevan, 1975 Cr.L.J. 97. This passage was cited with approval in Amritsar Municipality v. Hazara Singh, AIR 1975 SC 1087, 1088.

It is also to be noted that every decision of a case has to be understood in the context of the controversy. Mere logical retensions from the ratio or from obiter dictum are not the part of ratio nor of dicta.Wasudev v. State, AIR 1976 Bombay 94.

Similarly, any general observation cannot apply in interpreting the provisions of an Act unless the Supreme Court has applied its mind to and analysed the provisions of that particular Act. Raval & Co. v. K.G. Ram Chandran, AIR 1974 SC 818.

The Supreme Court itself has stated that the observations of a judge in a decision must be taken to relate to the precise issues before him :

"It must be remembered that when we are considering the observations of a High judicial authority like this Court, the greatest possible care must be taken to relate the observations of a judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him, unless he makes it clear that he intended his remarks to have wider ambit."A.D.M. Jabalpur v. Shukle, AIR 1976 SC 1207, 1378 (per Bhagwati, J.).

Like its decisions, the construction which the Supreme Court itself places on an earlier precedent is also binding and authoritative.Daulat Ram Trilok Nath v. State, AIR 1976 Punjab & Haryana 304, 303 (F.B.).

Observations contained in the minority opinion in a judgment cannot be regarded as laying down the law on the point.See John Martin v. State of W.B., AIR 1975 SC 775, 777.

If there is a conflict between two decisions of the Supreme Court, decision of a larger Bench is binding on the High Court. It has to be followed in preference to the decision of smaller Bench. Rudrayya v. Gangawwa, AIR 1976 Karnataka 153, 157.

The binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced and was actually decided. (sic).

Q. 31. What is delegated legislation ? Do you agree that delegated legislation is a necessary evil ?

Ans. : Delegated legislation : The delegated legislation is so multitudinous that the statute book would not only be incomplete but misleading unless it be read along with the delegated legislation which amplifies and amends it ___ Sir Cecil Carr.

1. Definition :

(A) Where the function of legislation is entrusted to organs other than the legislature by the legislature itself, the legislation made by such organ is called Delegated legislation.

(B) According to Jain & Jain, the term delegated legislation is used in two senses : it may mean (a) exercise by a subordinate agency of the legislative power delegated to it by the legislature or (b) the subsidiary rules themselves which are made by the subordinate authority in pursuance of the power conferred on it by legislature.

2. Delegated legislation in India :

Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 : (1960) 2 SCR 671

Central Act was held ultra vires on the ground of excessive delegation. Under Section 3 of the Drugs and Magic Remedies Act, 1954, the Central Government was empowered to prohibit the publication of any advertisement suggesting the use of any drug for diagnosis, cure etc. of any venereal disease. Supreme Court held section 3 invalid as no criteria, standards or principles had been laid down therein, and the power delegated was unguided and uncontrolled.

Jalan Trading Co. v. Mill Mazdoor Sabha, AIR 1967 SC 691 : (1967) ISCR 15

Section 37 of the Payment of Bonus Act, 1965 empowered the Central government to make such orders, not inconsistent with the purpose of the Act, as might be necessary or expedient for the removal of any doubts or difficulties. The Supreme Court by majority held section 37 ultra vires on the ground of excessive delegation in as much as it authorised the government to determine the purposes of the Act and to make provisions for the removal of doubts. Thus, in substance, Legislative power was delegated to the executive authority which was not permissible.

3. Framing of rules : A delegation of power to frame rules, by-laws, regulations, etc. is not unconstitutional, provided that the rules, by-laws, regulations are required to be laid before the legislature before they come into force and provided further that the legislature has power to amend, modify or repeal them.

4. Essential legislative functions cannot be delegated. Delegation of power to the executive to repeal a law is excessive delegation and it cannot be delegated held in Harishanker (supra). Harishanker Bagla's case (supra) : In Re Delhi Laws Act case (supra).

5. Delegation of power to modify an Act without any limitation is not permissible held in Makhan Singh v. State of Punjab, AIR 1964 SC 381.

7. Delegated legislation can be controlled by two procedures

(i) Judicial control

(ii) Legislative control.

It is for the court to hold on a fair, generous and liberal construction of an impugned statute whether the legislature exceeded such limits. Justice Subba Rao stated that, "it is the duty of the court to strike down without any hesitation any blanket power conferred on the executive by the legislature.

Delegated Legislation - Necessary Evil

Professor Griffith has written that the growth of delegated legislation in the 19th and 20th centuries was inevitably due to fundamental changes in the theory and practice of the Government. For the performance of their executive and administrative functions, the Government required legislative powers in their own fields. The main features which contributed to the growth of delegated legislation are as follows :

1. The newly evolved concept of Welfare State had caused tremendous increase in the work of the Government which necessitated a huge bulk of legislation. The Parliament hardly has time to deal with this wide range of legislation efficiently, and, therefore, it concentrates only on defining the essential legislative principles and leaves the details to be drawn by the executive.

2. The Parliament found it difficult to lay down details especially in certain fields of technical nature and, therefore, entrusted this task to the Departments and Ministers concerned.

3. Delegated legislation is also necessary to meet unforeseen contingencies. It provides for a power of constant adaptation to unknown future conditions without the necessity of amending the legislation.

Control of delegated legislation

4. Food a good Government flexibility and expediency are the two essential elements. Sometimes public interest may demand that provisions of law should not be made public until the time fixed for its enforcement is ripe. This objective is very efficiently attained by delegated legislation.

5. Delegated legislation is also necessary to meet cases of emergency arising out of war, insurrection, floods, economic deprodation etc. Therefore, the Executive must be fully equipped with rule-making powers so that it may take proper remedial action immediately without waiting for the law to be passed.

Q. 32. Rights and duties are correlative. Comment and explain various form of rights and duties and their characteristics?

Ans. : Legal Rights

Definition

Salmond defines a legal right as, "an interest recognised and protected by a rule of legal justice". Rights are concerned with interests and indeed have been defined as interests protected by rules of right, that is by moral or legal rules. Rights are either moral or legal. A moral or natural right is an interest recognised and protected by a rule of morality - an interest the violation of which would be a moral wrong, and respect for which is a moral duty. A legal right, on the other hand, is an interest recognised and protected by a rule of law - an interest the violation of which would be a legal wrong done to him whose interest it is, and respect for which is a legal duty. Salmond, JURISPRUDENCE, (2nd Ed.) p. 218.

According to Austin, "a party has a right when another or others are bound or obliged by law to do or forbear towards or in regard to him."

Ihering in his book "THE SPIRIT OF ROMAN LAW" has defined rights as `legally protected interests.' The protection of human interests is the chief purpose of social organisation. The law, however, does not protect all such interests. The interests of men conflict with one another, and law being the rule of justice, appraises such interests and selects only some interests for protection. Ihering regards as legal rights such of these interests as have obtained legal protection.

According to Vinogradoff, "right is a range of action assigned to a particular will within the social order established by law.... A right, therefore, supposes a potential exercise of power in regard of things or persons ..... When a man claims something as his ought, he claims it as his own or as due to him."

Allen defines a `right' as "the will power of man applied to a utility or interest recognized and protected by a legal system".

According to Windscheid a right is "a power or authority of the will conferred by the legal order". Savingny holds that `right is an individual's power or authority, in the sphere in which his will rules, with our concurrence. And "each jural relation", says Savigny, "is a relation between person and person determined by a rule of law".

Kohler defines a legal right as "a relation sanctioned and protected by the legal order." And Holems talks of "liberty backed by the force of the State." Inhering regards legal rights as "an interest protected by law."

In the view of Kelsen, "every true right that is not mere negative freedom from a duty consists of a duty of another or of many others." He continues : "The term right and the term relative duty signify the same notion considered from different aspects."

In the case of State of Rajasthan v. Union of India, AIR 1977 SC 1361, the Supreme Court defined legal rights as :

"In a strict sense, legal rights are correlatives of legal duties and are defined as interests which the law protects by imposing corresponding duties on others. But in a generic sense, the word `right' is used to mean an immunity from the legal power of another, immunity is exemption from the power of another in the same way as liberty is exemption from the right of another. Immunity, in short, is no subjection."

Characteristics of Legal Right

According to Salmond, every legal rights has five characteristics :

(1) It is vested in a person who may be distinguished as the owner of the right, the subject of it, the person entitled, or the person of inherence.

(2) It avails against a person, upon whom lies the correlative duty. He may be distinguished as the person bound, or as the subject of the duty, or as the power of incidence.

(3) It obliges the person bound to an act or omission in favour of the person entitled. This may be termed the content of the right.

(4) The act or omission relates to some thing which may be termed the object or subject-matter of the right.

(5) Every legal right has a little, that is to say, certain facts or events by reason of which the right has become vested in its owner.

These five characteristics can be found in the following illustration. Suppose a man buys a house from another person. The buyer will be the person of inherence and the seller and other persons generally the persons of incidence. The house will be the subject-matter of the right and contents of the right would lie in the fact that the seller and every other person should not disturb the buyer's peaceful possession and enjoyment of the house. Finally, the title of the right is the conveyance (sale-deed) by which the house was acquired by the purchaser from its former owner.

Every right involves a three-fold relationship in which the owner of it stands :

(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 to which that act or omission relates.

As a rule a right cannot be without an owner of it. A right is vested in some person particularly or some persons generally, and accordingly it is a private or public right. There may, however, be rights without a definite owner. Ownership may be contingent, e.g., an unborn person may be the owner of a legal right. Ownership need not be vested in a definite person; the owner of the right may be indeterminate. An unborn person may be regarded as the owner of property, though that ownership is contingent on his birth.

Duties

A duty is roughly speaking an act which one ought to do, an act the opposite of which would be wrong. The duty and the act are, however, not strictly identical. (Salmond).

Gray defined duty as : "The acts or forbearances which an organised society commands in order to protect legal rights or the legal duties of the persons to whom those commands are directed."

According to Salmond, duties are of two kinds - moral and legal. For example, in England there is a legal duty not sell or have for sale adulterated milk whether knowingly or otherwise.

Positive and negative duties

When the law obliges us to do an act, the duty is called positive and when the law obliges us to forbear from doing an act, the duty is called negative. For example, when one person owes another a sum of money, he is under a positive duty to pay the money when it becomes due and when one person owes a land, others are under a negative duty not to interfere with that person's exclusive use of the land.

Performance extinguishes both duty and right in the case of positive duties but a negative duty never extinguishes by fulfillment.

Primary and secondary duties

A primary duty is one which exists per se and independently of any other duty. A duty to forbear from causing personal injury to another is a primary duty.

A secondary duty is one which has no independent existence but exists only for the enforcement of other duties. The duty to pay damages to a person who has already received injuries is a secondary duty. Secondary duty is also known as remedial, restitutory or sanctioning duty.

Absolute and relative duties

According to Austin, relative duties are those to which there is a corresponding right in some person or definite body of persons and absolute duties are those which have no corresponding or correlative rights. Austin says that there are four classes of such duties :

(a) Self-regarding duties,

(b) A duty to indeterminate persons or to the public;

(d) Duty to the Sovereign or State.

Legal wrongs

Salmond defines wrong as "an act contrary to the rule of right and justice. A synonym of it is injury, in its true and primary sense of injuria. In its legal sense, it is known as injury which is against law or jus."

Wrongs may be of two kinds - legal and moral.

A moral wrong is an act which is morally or naturally wrong, being contrary to the rule of natural justice whereas legal wrong is an act which is legally wrong, being contrary to the rule of legal justice and a violation of the law. In simple words, a wrong is a violation of legal right.

Are rights and duties necessarily correlative

According to Salmond, a duty is an obligatory act, it is an act the opposite of which would be a wrong. Duties and wrongs are co-relative. The commission of a wrong is the breach of duty, and the performance of a duty is the avoidance of a wrong.'

According to one group of jurists, every right has a corresponding duty. Therefore, there can be no duty unless there is some one to whom it is due. There can be no right without a corresponding duty, or a duty without a corresponding right.

Legal rights in a wider sense of the term

In the wider sense of the term, a legal right may be defined as any advantage or benefit conferred upon a person by a rule of law. Here rights do not necessarily correspond with duties. In this sense, there are following four kinds of rights with their correlatives :

(1) Rights (stricto sensu) and duties,

(2) Liberties and no-right,

(3) Powers and liabilities, and

(4) Immunities and disabilities.

Rights and duties have been already considered above.

(1) Liberties and no-right

A person has liberty when there is absence of the legal duty imposed upon him. One's liberty is his ability to do a thing without being liable for it in law. Salmond says, "just as my legal rights (in the strict sense) are the benefits which I derive from legal duties imposed upon other persons, so my liberties (sometimes called licenses or privileges) are the benefits which I derive from the absence of legal duties imposed upon myself."

Co-relative of liberty is `no-right". The term "no-right" was invented by Hohfield. It is purely a negative concept. It means an absence of a right against another in a particular respect. For example, if A has a right to do a particular thing, it implies that other persons, X, Y, Z etc. shall have `no-right' to prevent A from doing that thing.

(2) Powers and liabilities

A power may be defined as ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons. For example, the right to make a will, or to alienate property, the power to sue and prosecute etc. are included here.

Powers are either public or private. Public powers are those which are vested in a person as an agent or instrument of the functions of the State. They include legislative, judicial and executive authority. Private powers are those which are vested in persons to be exercised for their own purposes and not as agents of the State.

The correlative of a power is a liability. This indicates the presence of power vested in someone else, as against the person with the liability. It is the position of that person whose legal rights may be altered by the exercise of a power, for example, liability of a tenant to have his lease determined by re-entry, that of a mortgagor to have the property sold by mortgagee.

(3) Immunities and Disabilities

An immunity is an exemption from having a given legal relation changed by another. Immunity means no liability. The correlative of immunity is disability which means the absence of power.

On the basis of the analysis of the conceptions of right, liberty, power and immunity, Salmond says that -

(a) Right is that which other persons ought to do in my behalf,

(b) Liberty is that which I may do without the interference of law,

(d) Immunity is that which other persons cannot do effectively in respect of me.

Kinds of legal Rights

1. Perfect and Imperfect Rights - A perfect right is one which corresponds to a perfect duty; and a perfect duty is one which is not merely recognised by the law, but enforced by the law. A duty is enforceable when action or legal proceeding will lie for its breach. An imperfect right is recognised by the law for certain purposes, but is incapable of legal enforcement. Typical example of imperfect right is time-barred debt. In the case of time-barred debt, the right of action is only barred, debt is not rendered extinct, so that the lapse of time does not destroy the right but reduces perfect right to imperfect one. A creditor of a promissory note in India can sue upon it within three years from the date of debt becoming payable. After the expiry of this time the debt is barred by time but it is not extinguished, i.e., for certain purposes creditors rights are still recognised, though the time-barred debt cannot be recovered in a court of law.

2. Positive and Negative Rights - A positive right corresponds to a positive duty. Therefore, the person having the positive right is entitled to something to be done by the person who has the corresponding positive duty.

A negative right corresponds to a negative duty. Therefore, the person having a negative right is entitled to some forbearance on the part of the person who has a corresponding negative duty.

The distinction between negative and positive rights is one of considerable importance. Every person is entitled as against the whole world to certain negative rights; but some only are entitled to positive rights. Thus the right to reputation is a right vested by the law in every individual giving him freedom from its violation, viz., the wrong of defamation. No man should defame me or kill me or take away my goods or property in a wrongful manner. This is a negative right I possess against the world as such; but if I am ailing or dying or drowning, I have no positive right against anybody to heal me or save me, unless I am under a contract with the other person whereby he has undertaken an obligation to heal me or save me.

3. Rights in Rem and Rights in Personam - A Right in rem corresponds to a duty imposed upon persons in general whereas a right in personam corresponds to a duty imposed upon determinate individuals. Rights in rem and rights in personam are also known as real rights and personal rights respectively. A right in rem is available against the world at large whereas a right in personam are available only against particular persons.

4. Proprietary and Personal Rights - Proprietary rights are those which have an economic significance, for example, rights of ownership and possession etc. The sum total of a man's personal rights constitutes his status or personal condition, as opposed to his estate. Proprietory rights are valuable, worth money and are elements of a man's wealth. Whereas personal rights are not valuable, worth none and are merely elements of a man's well being.

Corresponding to personal and proprietary rights we have personal and proprietary duties, subjections and disabilities. The obligation to pay a debt or to deliver goods under a contract is a proprietary obligation, but the obligation to take care while driving a car on the highway is a personal obligation. The oblication not to infringe copyright, patent or trade-mark, is a proprietary obligation; but the obligation not to harm reputation is a personal obligation.

5. Rights in re propria and rights in re aliena - According to Salmond, "a right in re aliena or encumbrance is one which limits or derogates from some more general right belonging to some other person in respect of the same subject-matter. All others are jura in re propria."

Right in re propria means right over one's own property and right in re aliena means right over the property of someone else. In the widest sense of the term re aliena may be called as encumbrance.

6. Principal and Accessory Rights - A principal right is the main or primary right vested in a person under the law. An accessory right is secondary right which is connected to, or arises out of, the principal right. For example, if a debt is secured by a mortgage, the recovery of the debt is the principal right while the security is the accessory right.

7. Primary and Sanctioning Rights - A sanctioning right originates from some wrong i.e., from the violation of another right. These are also known as antecedent or substantive rights. Primary rights have a source in something other than wrongs. According to Salmond, a primary right can be either a right in rem, e.g., my right not to be assaulted, or a right in personam, e.g., my right that you perform your contract with me. But the sanctioning right which arises from the violation of a primary right will be in all cases a right in personam.

8. Legal and Equitable Rights - Legal rights are those which were recognised by the Courts of Common Law. Equitable rights (also called equities) are those which were recognised solely in the Court of Chancery.

The general principle regarding equitable rights is that when there are two inconsistent equitable rights claimed by different persons over the same thing, the first in time shall prevail. But where there is a conflict between an equitable right and a legal right, the legal right shall take precedence over equitable right, even if it is subsequent to the equitable right in origin, but the owner of legal right must have acquired it for value and without notice of the prior equity.

A legal right is one which exists under the law. An equitable right is one which exists under the supplement of equity. Equity is a corrective influence on law. Rights that had not been recognised at law came to be recognised in equity. Equity is grace; and so a right in equity is less powerful than a legal right. Where there is a legal right and also an equitable right, the legal right defeats the equitable right, because equity is a supplement to and not a substitute for the law.

The modes of creation and disposition of legal and equitable rights are different. A legal transfer is created by a deed; so also a legal mortgage. An equitable transfer does not require a deed; nor does an equitable mortgage require a deed.

9. Vested and Contingent Rights - According to Salmond, a right vests when all the facts have occurred with must be law occur in order for the person in question to have the right. A right is contingent when some but not all of the vestitive facts have occurred.

A vested right creates an immediate interest. It is transferable and heritable whereas a contingent right does not create an immediate interest and it can be defeated when the required facts have not occurred i.e., a right which is contingent upon the happening of some event. For example, if a transfer of certain property is acquired by a valid deed of transfer, transferee acquires vested interest. However, if the property is to be transferred upon the condition of the transferee attaining 21 years age, the right so acquired is contingent upon attainment of 21 years of age of the transferee.

10. Public and Private Rights - A right vested in the State is called a public right and it is possessed by every member of the public. A private right, on the other hand, is concerned only with private individuals.

Jus ad Rem

A right to a right is a jus ad rem. In a jus ad rem the person of inherence has the right to have some other right transferred to him. For example, if A contracts to sell his land to B, B then acquires a right against A to have the land transferred to himself. Here right of B is called the right ad rem. A right ad rem is always a right in personam in nature.

Q. 33. Explain the meaning of possession and its elements ?

Ans. : Meaning

According to Salmond, "few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection. Human life and human society, as we know them, would be impossible without the use and consumption of material things. We need food to eat, clothes to wear and tools to use in order to win a living from our environment. But to eat food, we must first get hold of it; to wear clothes, we must have them, and to use tools, we must possess them. Possession of material things then is essential to life; it is the most basic relationship between men and things."

According to Henry Maine, "possession means that contact with an object which involves the exclusion of other persons from the enjoyment of it."

Possession is as difficult to define as it is essential to protect. It is an abstract notion and it is not purely a legal concept. Possession is prima facie an evidence of ownership. The possession of a thing is a good title against the whole world except the real owner. Long possession creates ownership by prescription.

Why law protects possession

Law protects possession even when it has been wrongfully obtained. Various theories regarding this have been put forward :

Holland says that the prominent motive in the protection of possession is probably a regard for the preservation of peace. According to him, reasons for protection are as follows :

(a) Possession is protected for the preservation of peace.

(b) Possession is protected as a part of the law of tort.

The concept of possession is of far-reaching importance in view of the fact that the consequences flowing from the acquisition and loss of possession are very substantial. Possession goes as evidence, even of ownership; even the finder of goods becomes the owner of them against the whole world except the true owner, by virtue of the fact of possession. By adverse possession for twelve years or longer, the possessor becomes the legal owner of the property possessed, and the right of the original owner gets absolutely destroyed by perfect negative prescription. Moreover ownership is transferred often by giving possession also, though the giving of possession is not a necessary condition of transfer of ownership.

Elements of Possession

There are two elements which are essential to the concept of possession. One is a physical element and consists in physical control over the things and is known as corpus possession is and the second is a mental i.e., animus possidendi which consists in the determination to exercise that control.

Corpus possessionis

The objective element of possession is called the corpus and consists in an exclusive physical control over the thing. According to Savigny, the corpus possessionis consists in the existence of physical power to exclude foreign interference and secure the enjoyment of the thing to oneself. This is the corpus required for the commencement of possession. The corpus possessionis can be discussed under two points, one is in the relation of the possessor to other persons and other is in relation of the possessor to the thing possessed.

(a) Relation of possessor to other persons

Salmond says that a thing is possessed, when it stands with respect to other persons in such a possession with the possessor, having a reasonable confidence that his claim to it will be respected, is content to leave where it is. Following are the sources from which such security may be derived:

(i) physical power of the possessor,

(ii) personal presence of the possessor,

(iii) when the members of the society develop a respect for rightful claims, a person may also enjoy such security,

(iv) for avoiding the interference of others, when a person is able to hide a thing and keep it in secrecy,

(v) A person might enjoy security and protection by the possession of other things, for example, by keeping the key of a house, protection is afforded to the house and other things kept there.

(b) Relation of possessor to things possessed

The second element for the purpose of possession is that the relation between the possessor and the thing possessed is such as to admit of his making use of the thing as he likes, consistent with the nature of the thing. There must be no barrier between him and it, inconsistent with the nature of the claim he makes to it.

Animus possidendi

The subjective or mental element in possession is called animus possidendi which implies intention to appropriate to oneself the exclusive use and enjoyment of the thing possessed. It is the intention of the possessor to include others from interfering with his right of possession. In animus possidendi following points are important :

(i) The possessor must have the exclusive claim over the thing in his possession.

(ii) The animus or desire to possess need not necessarily be rightful, it may even be consciously wrongful.

(iii) The animus need not amount to a claim or an intention to use the thing as owner.

(iv) The animus need not be necessarily that of possessor himself.

(v) The animus possidendi need not be specific, it may be general. For example, A may intend to possess all the books on his book-shelf, though he might have forgotten the existence of some of the books on the shelf. This general intention to possess all the books in the book-shelf is sufficient animus for A possessing every book on the shelf.

The negative elements of animus possidendi may be given as follows :-

(a) The animus possidendi need not show an intent of the possessor to use the thing as owner thereof. A lessee's possession, or a bailee's possession, is real or legal possession (of a rightful type), though the tenant or the bailee has no intent to use the property as the owner thereof or to claim it as such. The lessee cannot make material alterations of the property without the permission of the owner; nor can he sell away the property, because he is the possessor and not the owner. So also a bailee cannot pledge or mortgage the property without a wrong to the owner. The animus possidendi here extends to the reasonable and rightful use of the property, but not an unwarranted dealing with it.

(b) The animus possidendi need not be specific, but may be general. I may have a bunch of keys. I may not actually be knowing the number of keys in the bunch; nevertheless my intention is to possess all the keys - whatever be their number.

(c) The animus possidendi need not be an intent to claim or hold on one's own behalf. It may be an intent to a representative holding. Thus a servant may have de facto possession though the owner has the de jure possession. An agent's possession for his principal, a wife's possession for her husband, or a husband's possession on behalf of his wife, a trustee's possession on behalf of the beneficiaries, a guardian's possession on behalf of the ward - these are all examples of possession on behalf of some one else.

Modes of acquiring possession

When two elements corpus and animus coincide, possession is acquired. There are thre modes of acquisition of possession :

(i) Taking - It is an exclusive act on the part of the person who takes the possession. Taking is either original or derivative. The original taking occurs when the object has no previous owner whereas when the possession of a thing is taken which has already a previous owner it is derivative taking.

(ii) Delivery - Voluntary relinquishment of possession by one person in favour of another is delivery. Actual delivery means the transfer of immediate possession.

(iii) By operation of law - Possession is acquired by operation of law when goods are removed from the possession of one person and handed over to the other.

Legal Consequences of Possession

Legal consequence of acquisition and loss of possession are following :

(a) Possession is prima facie an evidence of title of ownership.

(b) Transfer of possession is one of the chief modes of transferring ownership.

(d) The first possession of a thing which as yet belongs to no one (res nulliues) is a good little of right.

(e) Even in respect of property already owned, the wrongful possession of such property is a good title for the wrongdoer, as against all the world except the true owner.

(f) Possession may be of such efficacy that in some cases, possessor may confer a good title on another, even though he has none himself.

Q. 34. Explain the importance of possession as said to be the "nine points of the law" ? Explain the kind of possession and differentiate it with ownership ?

Ans. : Possessor has better claim against all except Real owner :

Possession is said to be the nine points of the law. It means that the person in possession of an object has better claim over it against the whole world except the real owner. This principle has been very well illustrated in Armorie v. Delamine 1 Stra (1722) 505. In this case a chimney boy found a jewel and took it to the shop of the defendant to know its value. The defendant refused to return it to the boy on the ground that the boy was not the owner. The boy was allowed by the court to recover it from the shopkeeper. The boy being the prior possessor had a better claim to it against the whole world except the real owner, and as the shopkeeper's claim was not on behalf of the owner, the claim of the boy prevailed against him.

In other words it can be said that the consequences attached to the possession are substantially as those attached to ownership subject to the question of possessory rights. In English law, if a bailee is unlawfully deprived of the goods bailed to him, he has got all the rights of the owner against the person who has so deprived him, though he himself is not responsible to the bailor for such loss.

Possession is a root of title : Possession is a root of title. After a prescribed period it ripens into a complete and legal title. Possession is substantive right and as such it is transferable and inheritable. The period of the possession of all the persons claiming under the same possessor is added together to make up the prescribed period of limitation. The persons in possession can sue and get restrained the persons who interfere with their possession without proving title as owner of the property.

Possession is an evidence of ownership : Possession is an evidence of ownership. The possessor is presumed to be the owner until one proves a better title to it than him. All these rules and the principles have been recognised in almost all the legal systems.

Kinds of Possession :

1. Corporeal and incorporeal possession - Corporeal possession is the possession of a material object whereas incorporeal possession is the possession of anything other than a material object. In corporeal possession, the actual use or corpus possession is not essential while in the case of incorporeal possession, actual continuous use and enjoyment is essential. Corporeal possession is commonly called the possession of a thing and inmcorporeal possession is commonly known as the possession of a right.

The distinction between corporeal and incorporeal possession is analogous to that between corporeal and incorporeal ownership.

2. Immediate and mediate possession - According to Salmond, in law one person may possess a thing for and on account of some one else. In such a case the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate possession while that which is acquired or retained directly or personally may be distinguished as immediate or direct.

Kinds of mediate possession. - There are three kinds of mediate possession :

(i) The first is that which one acquires through an agent or servant; that is to say, through someone who holds solely on one's account and claims no interest of his own.

(ii) The second kind of mediate possession is that in which the direct possession is with a person who holds the thing possessed, both on his account, and also on someone else's account, but who also recognises the owner's superior right to obtain from him the direct possession whenever the latter chooses to demand it. This is the case of a borrower, hirer or tenant at will.

(iii) The third form of mediate possession is the case in which the immediate possession is with a person who claims it for himself until some time has elapsed or some condition has been fulfilled.

3. Concurrent possession - It was a maxim of the civil law that two persons could not be in possession of the same thing at the same time. As a general proposition, two adverse claims of exclusive use cannot both be effectively realised at the same time. But, those claims which are not adverse, admit of concurrent or duplicate possession. There are several possible cases of duplicate possession :

(a) Mediate and immediate possession may coexist in respect of the same thing.

(b) Two or more persons may possess the same thing in common just as they may own it in common.

4. Possession in fact and possession in law - Possession in fact, is a relationship between a person and a thing which he possesses. It is also known as de facto possession. Salmond says, "I possess those things which I have : If I capture a wild animal, I get possession of it; if it escapes from my control then I lose possession."

The test for determining whether a man is in possession of anything is whether he is in general control of it. Unless he is actually holding or using it in which event he clearly has possession - we have to ask, Salmond says, whether the facts are such that we can expect him to be able to enjoy the use of it without interference on the part of others.

Possession in law is also known as de jure possession. Law provides protection to possession in two ways. First, the possessor is given certain legal rights, such as a right to continue in possession free from interference by others. Secondly, the law can protect possession by prescribing criminal penalties for wrongful interference and for wrongful dispossession. By such civil and criminal remedies the law can safeguard a man's de facto possession.

There may be possession both in law and in fact, or in fact alone but not in law, or in law alone but not in fact. The possession of an owner is ordinarily both legal and actual; the possession of a servant is only factual, being merely a custody; the possession of a trespasser or a thief is only a detention. The possession of an owner who has not the thing in his own custody or actual disposition but with someone else is known as `constructive possession'. Thus where a man buys goods from another person (who has kept them with a wharehouseman) who gives him (the buyer) a letter addressed to the warehouseman asking the warehouseman to hold, thenceforth, the goods not on behalf of the seller but on behalf of the buyer, and the warehouseman agrees to so hold the goods, the buyer's possession of the goods (bought by him and in custody of the warehouseman) is constructive possession.

The owner of jewelery in a box may deposit that box with someone else, but if he himself has the key to that box he is said to be himself in possession of the box. Such possession is ****** called possessio fictitia, i.e., possession by virtue of a legal fiction. We should prefer to call it constructive possession.

Differentiate Possession and Ownership :-

(1) Possession is a matter of fact. What ownership is in right, ownership is a kindered conception of possession. Possession is the de facto exercise of claim; ownership is the de jure recognition. Possession is the guarantee of the facts, ownership is the guarantee of the law.

(2) Possession for a long time ripens into ownership and ownership without possession for a long time is destroyed.

(3) The facts to which the right called possession is attached are corpus and animus. The facts to which the right called ownership is attached are possession or prescription, or conveyance from the previous owner of the object.

(4) The transfer of possession is comparatively easier and less technical but the transfer of ownership in most cases involves a technical process of conveyancing; where possession is temporary and ownership is ultimate, permanent.

(5) The owner is allowed to exercise his natural power over the subjectmatter uninterfered with and is more or less protected in excluding other people from such interference. The owner is allowed to exclude all and is accountable to no one. The possessor is allowed to exclude all but one, and is accountable to no one but to him.

Q. 35. Explain the meaning of ownership and their elements?

Ans. Meaning of ownership : Ownership is the relation between a person and any right that is vested in him. According to Salmond : "Ownership denotes the relation between a person and an object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem being good against all the world and not merely against specific persons." Salmond, JURISPRUDENCE (12th ed.), pp. 246-247. According to him, ownership exhibits the following incidents :

(a) An owner shall have a right to possess the thing which he owns. He may, however, be not in the actual possession of it;

(b) He has the right to use and enjoy the thing owned;

(d) Ownership has the characteristic of being indeterminate in duration.

(e) Owner has a residuary character. For instance, if a land-owner gives a lease of his property to A, an easement to B and a right to profit to C, then, his ownership shall consist of the residual rights.

But Salmond's definition of ownership has been criticised by many jurists. Prof. Glanvilla says that the definition of ownership given by Salmond suggests that from the point of time, the concept of ownership of rights must be prior to that of ownership of material objects, but historically it appears just the reverse of it. Dias & Hughes, JURISPRUDENCE (1957). Duguit has said that what a person really owns is a `thing' and not a right.

According to Duguit, ownership is a relation between a person and a thing. On account of this relation the person has the power of disposal, use, and enjoyment of the thing according to regle de droit.

Pollock defines ownership as, "ownership is the entirely of the powers of use and disposal allowed by law." However, it is not necessary that all the powers of an owner need be exercisable at once and immediately; he may remain owner though he has parted with some of them for a time. He may even part with his whole powers of user and enjoyment or suspend his power of disposal, provided he reserves for himself or his successor, the right of ultimately reclaiming the thing to be restored to his power as usually happens in the case of hiring of land, goods or buildings.

According to Paton, ownership of a person over a thing suggests that he has following rights in respect of that thing :

(i) Right of user;

(ii) Possession which also includes eliminating others from that thing;

(iii) Right of alienation; and

(iv) Disposition as he wishes.

Paton points out that the above rights which are incidental to ownership can be limited or restricted by mutual agreements or by operation of law.

Keeton defines ownership as the ultimate right to the enjoyment of a thing, as full as the State permits, when all prior rights in that thing vested in persons other than the one entitled to the ultimate use, by way of encumbrance, have exhausted.

Essentials of ownership : There are following five essentials of ownership :

(1) The owner has a right to possess the thing which he owns. He may not be having the immediate possession of the thing but so long he has a right to possess the thing, he is the owner. He may have been wrongfully deprived of the thing or may have voluntarily divested himself of the thing. Thus, if A's car is stolen by B, the latter has the possession of the car but A remains the owner, with an immediate right of possession. Now, if A lends his watch for hire to C, A has neither possession nor an immediate right to possess. However, he is still the owner because he retains a reversionary interest in the watch i.e. a right to repossess it on the termination of the period of hire.

(2) The owner has the right to use and enjoy the thing owned. According to Salmond, the right to possess the thing is a right in the strict sense but there are other related rights which are actually liberties like right to manage the thing, the right to the income from it and right to decide how it shall be used, etc.

(3) The owner has the right to consume, destroy or alienate the thing. The rights to consume and destroy are liberties while the right to alienate involves the transfer of rights over the thing to another.

(4) Fourth essential or characteristic of ownership is that it is indeterminate in duration. Those who are not owners may be entitled to possess or use a thing for a limited period but for the owner possession or user is of indeterminate duration.

(5) Ownership also has a residuary character. For example, suppose a land owner gives his property on lease to X, an easement to Y and some other right to Z, his ownership now consists of the remaining residuary rights.

Subject-matter of ownership : The prime subject-matter of ownership consists of material objects such as land and chattels. But according to Salmond, ownership is by no means limited to things of this category. A man's wealth may consist not only of his land and goods, but of such things as interests in the land of others, debts due to him, shares in companies, patents, copyrights and his interests in trust funds. Thus, A may have a right to walk over X's land or the right to catch fish from B's pond, or a debt owing from Y, shares in the company Z etc. are all rights although none of these is a material or physical thing.

Salmond says that usually a man is said not to own, but to have, a right. In the first place many rights, such as the right of free speech or of reputation, do not appear to be fit subjects of ownership at all : a man does not own a right to his reputation; that is a right which he has.

In English law certain things qualify as capable of being owned but as not infact being owned like wild animals not reduced into captivity and islands outside the territory of any State etc. and others incapable by nature of being owned like right to reputation, living persons, things common to all men, such as the air and the sea and things beyond reach like the sun, the moon and stars.

When a thing is capable of being owned, the methods of acquiring ownership over it vary from legal system to legal system. Basically one can acquire ownership in two ways :

(a) by operation of law, and

(b) by reason of some act or event.

Q. 36. Explain the kind of ownership ?

Ans. : The kind of ownership are

1. Corporeal and incorporeal ownership

2. Sole ownership and Co-ownership

3. Trust and beneficial ownership

4. Legal and equitable ownership

5. Vested and contingent ownership

1. Corporeal and incorporeal ownership : The ownership of a material object is called corporeal ownership. It is a right of ownership in some corporeal property, immovable and moveable like land, building, things attached to the land, chattels etc.

The ownership of a right is incorporeal ownership. For example, the ownership of a copyright, patent, trademark, right of way are all incorporeal.

Corporeal ownership is ownership, that is a right of ownership, in some corporeal property, immovable or moveable. Immovable property includes lands and buildings and things attached to the land. `Moveable property' means and includes things not attached to the land, and personal effects. Even what is attached to the land becomes a moveable when separated from the land. [Under the Indian Sale of Goods Act, growing crops are regarded as goods or movable property, if agreed to be severed from the land, though not yet severed from the land.]

Incorporeal property is property which is such only in the abstract sense, i.e., it cannot be seen, felt or touched. Examples of incorporeal property are : copy-rights, patents, trade-marks, goodwill of a business. Often the value of incorporeal property is for higher than that of corporeal property. The value of the goodwill of the business may be far higher than that of the property itself. Corporeal property is property which can be seen, felt and touched.

The commonest form of ownership, in the strict and limited sense of the term, i.e., the right of ownership, is the ownership of corporeal property. Such ownership is called corporeal ownership. Even a tenancy of land, or an estate which is only a life interest, is a form of corporeal ownership no less than a tenancy in fee simple that is an ownership in which upon the death of the owners the ownership devolves upon his heirs at law. Even where the property concerned is encumbered with several adverse or limiting rights, it is still a property that may be owned. A is the owner of land which is mortgaged and which has other encumbrances like rights of way, rights of ancient lights, so that A has very little of enjoyable interest left in the land. A is nevertheless the owner of the land because he has the right, if not to the general, at least to the residuary, use of the land.

Incorporeal ownership, according to Salmond, is an ownership in the widest sense of the term, i.e., ownership of all kinds of rights. But here it is difficult to understand Salmond, because even an incorporeal thing falls, as we have already seen, within the meaning of `incorporeal property'. Thus ownership of goodwill, copyright, patent or trade-mark may be regarded as ownership of incorporeal property; hence such ownership alone should be regarded as incorporeal ownership. A mere abstract right is really an ownership of a right, but not the right of ownership.

2. Sole ownership and Co-ownership : When the ownership is vested in a single person, it is known as sole ownership but when it is vested in two or more persons at the same time, it is called duplicate ownership. Duplicate ownership may happen in several ways, of which co-ownership is one, for example, the members of a partnership firm are co-owners of the partnership property. In the case of co-owners the title of one is rendered consistent with that of the other by the existence of reciprocal obligations of restricted use and enjoyment.

In English law, co-ownership is two chief kinds - ownership in common and joint ownership. The most important different between these relates to the effect of the death of one of the co-owners. In ownership is common the right of a dead man descends to his successors like any other inheritable right. 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 his right of survivorship or jus accrescendi.

3. Trust and beneficial ownership : Another instance of duplicate ownership is trust ownership which allows for the separation of the powers of management and the right of enjoyment. Trust property is that which is owned by two persons at the same time, the relation between the two owners being such that one of them is under an obligation to use his ownership for the benefit of another. The former is called the trustee, and his ownership is trust ownership; the latter is called the beneficiary, and his ownership is beneficial ownership.

The trustee is destitute of any right of beneficial enjoyment of the trust property. His ownership is a matter of form rather than of substance and nominal rather than real. In legal theory, however, he is not a mere agent, but an owner. He is a person to whom the property of someone else is fictitiously attributed by the law, to the extent that the rights and powers thus vested in a nominal owner are to be used by him only on behalf, and for the benefit, of the real owner. As between the trustee and the beneficiary, the property belongs to the latter, and not to the former. But as between the trustee and third persons, the fiction prevails, and the trustee is deemed to be the legal owner of such property. The trustee is clothed with the rights of his beneficiary, and is so enabled to represent him in dealings with the world at large.

At law, the trustee is the owner of the property he administers, but the agent is, in no way the owner of the property which actually belongs to the principal.

The authority of the agent to deal with the property is purely a matter of delegation from the person whose agent he is and for whose benefit he acts. But the authority of the trustee is derived from the trust-deed or other instrument or transaction giving rise to the trust, and the wishes of the beneficiary may have nothing to do with it.

4. Legal and equitable ownership : Legal ownership is that which has it origin in the rules of common law, while equitable ownership is that which proceeds from rules of equity divergent from the common law.

One person may be the legal and another the equitable owner of the same thing or the same right at the same time. Thus, that ownership which is recognised by the law is legal ownership, whereas that ownership which is recognised by equity is called equitable ownership. In many cases, it is seen that equity recognises ownership but law does not, owing to some legal defect in ownership. When a debt is orally assigned by A to B, A remains the legal owner of it but B becomes the equitable owner of it. But there remains only one debt which has two owners now. Rights of both A and B are legal rights but the ownership of A is legal while that of B is equitable.

5. Vested and contingent ownership : According to Salmond, ownership is either vested or contingent. It is vested when owner's title is already perfect; it is contingent when his title is as yet imperfect, but is capable of becoming perfect on the fulfilment of some condition. In the former case, the ownership is absolute; in the latter it is merely conditional.

Vested interest

An interest is said to be vested, when it is not subject to any condition precedent or when it has to take affect on the happening of an event which is certain. A person takes a vested interest in property when he acquires a proprietary right in it, but the right of enjoyment is only deferred till a future event happens, which is certain to happen. For example, where under a deed of gift, a donee is not to take possession of the gifted property until after the death of the donor and his wife, the donee is given a vested interest, subject only to the life-interest of the donor and his wife.

Contingent interest

Where on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening or not happening, of a specified uncertain event, such a person acquires thereby a contingent interest in the property. Such interest becomes a vested interest on the happening of the event or when the happening of the event becomes impossible.

Q. 37. Explain the meaning of person and their kinds ? Also highlight in brief the advantages and disadvantages of incorporation ?

Ans. : The word `person' is derived from the Latin word `persona' which means a mask worn by actors playing different roles in a drama. Until sixth century the word was used to denote the part played by a man in life but after that, it began to be used in the sense of a living being capable of having rights and duties. Many jurists have attempted a definition of the concept :

Gray defines a person as "an entity to which rights and duties may be attributed."

According to Salmond, "a person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he may be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition."

Kinds of persons

Persons are of two kinds - natural and legal.

1. Natural persons - A natural person is a human being capable of rights and duties. They are both persons in fact and in law.

2. Legal persons - According to Salmond, "legal persons are being, real or imaginary, who for the purpose of legal reasoning are treated in greater or less degree in the same way as human beings." They are persons in law, but not in fact. Legal persons are also termed fictitious, juristic, artificial or moral.

(i) Corporation. - A corporation is a group or series of persons which, by a legal fiction, is regarded and treated as a person.

(ii) Institution. - In this class, the object selected for personification is not a group or series of persons, but an institution, for example, a church or university.

(iii) Fund or Estate. - In the third class, the corpus is some fund or estate devoted to special uses, for example, a charitable fund or a trust estate.

Legal status of lower animals - The only natural persons are human beings.

Today, however, an animal cannot be punished but if it is extremely dangerous then only certain laws allow shooting down. In modern law, a trespassing beast may be under distress damage feasant kept distrained until its owner or someone else interested in the beast pays compensation. Similarly, in India, the Cattle Trespass Act has been passed for animals doing trespass.

A beast is incapable of legal rights as of legal duties, for its interests receive no recognition from the law. However, there are two cases in which beasts may possess legal rights. In the first place, cruelty to animals is a criminal offence, and in the second place, a trust for the benefit of particular classes of animals, as opposed to one for individual animals, is valid and enforceable as a public and charitable trust. For example, a provision can be made for the establishment and maintenance of a home for stray dogs or broken-down horses.

Legal status of unborn persons - Unborn persons have been given the legal status by law. There is nothing in law to prevent a man from owning property before he is born. His ownership is real and present ownership but it is contingent because he may never be born at all.

The Hindu Law of partition requires a share to be allotted to a child in mother's womb along with the other living heirs. But if the child is not born alive, his share will be equally partitioned between the surviving heirs. Thus, proprietary rights of the children in utero are fully recognised by the law. Injury to the child in womb has been made a punishable offence by the Criminal Law. Causing death of a child in womb has been made by the Indian Penal Code a punishable offence. See Sections 313, 313, 316 IPC. Thus, children in the womb have rights protected by law and have legal personality.

Legal status of dead men - According to Salmond, "ordinarily speaking, the personality of a human being may be said to commence existence on birth and cease to exist at death, and in general the law takes the same view. Dead men are no longer persons in the eye of the law. They have laid down their legal personality with their lives, and are now as destitute of rights as of liabilities. They have no rights because they have no interests. They do not even remain the owners of their property until their successors enter upon their inheritence."

In law, dead men are `things' and not `persons'. They have no rights and no interests. Though the dead man's corpse is the property of no one, the law, however, seeks to ensure its decent burial or cremation. The criminal law provides that any imputation against a deceased person, if it harms the reputation of that person, if living, and is intended to hurt the feelings of his family or other near relatives, shall be an offence of defamation under Section 499 of the Indian Penal Code.

Double capacity and double personality - English law recognises many different capacities in which a man may act. A man may have power to act in an official or representatives capacity or he may act in his private capacity or on his own account. Thus, if a person is acting as a trustee, the question may arise whether he is acting as a trustee for fund A or for fund B or if a person is acting as director whether he has powers and duties of a trustee, etc.

The fact to be noticed is that if a man has two or more capacities it does not give him the power to enter into a legal transaction with himself. Double capacity must not connote double personality. English law does not recognise double personality of the individual. For example, at common law, a man could not sue himself or contract with himself or convey property to himself even if he was acting on each side in a different capacity.

Corporations - A corporation is an artificial person. It is a group or series of persons, which by legal fiction are treated as a person and it has capacity to have rights and duties and holding property. Corporations are of two kinds - corporation aggregate and corporation sole. Coke says that "persons are of two sorts, persons natural created by the will of God.., ... and persons incorporate or politique created by the policy of man; and those be of two sorts, viz., either sole or aggregate of many."

Kinds of Corporation

(i) Corporation aggregate : A corporation aggregate is an incorporated group of co-existing persons. Corporations aggregate have several members at a time. Examples are a registered company, consisting of all the shareholders and a municipal corporation consisting of all the inhabitants of the Borough. Limited companies are the best example of a corporation aggregate. Such a company is formed by a number of persons who as shareholders of the company contribute to the capital of the company for furtherance of a common object. Their liability is limited to the extent of their shareholding in the company. Thus, a limited company is formed by the personification of the shareholders. Shareholders of the company do not hold the property of the company instead, they receive dividents from the profits of the company.

However, a partnership firm is not a person because it is only an aggregate of individuals but it is not incorporated. The existing partners own the property and the debts.

(ii) Corporation-sole : A corporation sole is an incorporated series of successive persons. Corporation sole has only one member at a time. According to Salmond, corporation sole is found only when the successive holders of some public office are incorporated so as to constitute a single, permanent and legal person. For example, the Sovereign is said to be a corporation of this kind, while the Postmaster-General, the Solicitor to the Treasury, the Secretary of State for War, Attorney-General of India have been endowed by statute with the same nature.

A corporation sole is distinguishable from a "mere succession of officers or persons exercising the same rights." According to Professor Gray, "If a corporation sole exists, an ocupant of an office can generally acquire property for the benefit of his successors as well as himself, he can generally recover for injury inflicted on property pertaining to the office while such property was in the hands of his predecessor and he can sometimes enter into a contract which will bind or endure to the advantage of his successors. Gray, NATURE AND SOURCES OF THE LAW, P. p7.

A corporation sole is an illustration of double capacity. For example, in England, the King exercises the function of the Crown and in his capacity as the Constitutional Head, he can confer rights and duties upon himself as an individual.

Agents, beneficiaries and members of a corporation

Every legal person has corresponding to in the world of natural persons certain agents or representatives by whom it acted and certain beneficiaries on whose behalf it exists and fulfils its functions because a corporation has neither soul nor body of its own. It has to work only through the agency of some representatives. Beneficiaries of a company are its shareholders because all the rights, interests, or property which are possessed by the company are held by it for their benefit only. The members of a company are the individuals who form the group or series personified by the law and who so constitute the corpus or body of the legal person thus created.

Advantages of incorporation

(1) Corporate Personality : Unlike a partnership firm, which has no existence apart from its members a company is a distinct legal or juristic person independent of its members. Under the law, an incorporated company is a distinct entity, even the one man company. For example, in the case of Saloman v. Soloman and Co., 1897 A.C. 22. which was a one man company, one Salomon was carrying on the business of boot and shoe manufacture. He incorporated a company named `Salmond and Co. Ltd., with seven subscribers consisting of himself, his wife, four sons and one daughter. This company took over the personal business assets of Saloman for £ 38,782 and in turn, Saloman took 20,000 shares of £ 1 each, debentures worth £ 10,000 of the company with charge on the company's assets and the balance in cash. His wife, daughter and four sons took up one £ 1 share each. Subsequently, company went into liquidation. Unsecured creditors contended that the Saloman could not be treated as a secured creditor but it was held that the company has its existence separate and distinct from its members.

(2) Limited Liability : In the case of limited companies, no member is bound to contribute anything more than the nominal value of the shares held by him.

(3). Perpetual succession : An incorporated company has perpatual succession which means that "members may come and members may go but the company can go on forever."

(4) Transferable shares : Shares of the companies are movable property, transferable in the manner provided by the articles of the company.

(5) Restriction on purchase by a company of its own shares : The companies have been prohibited with some exceptions, the purchase of their own shares, especially by companies with liabilities limited by shares or guarantee.

(6) Separate property : A company as a legal entity is capable of owning its funds and other assets. The property of the company is not the property of the shareholders.

(7) Capacity to sue : As a juristic legal person, a company can sue in its name and be sued by others.

(8) Flexibility and Autonomy : The company has an autonomy and independence to form its own policies and implement them, subject to the general principles of law, equity and good conscience and in accordance with the provisions contained in the Companies Act, memorandum and articles of association.

Disadvantages of incorporation

(1) Formalities and expenses : Incorporation of a company is coupled with complex, cumbersome and detailed legal formalities and expenses, involving considerable time and money.

(2) Corporate disclosures : Notwithstanding the elaborate legal framework designed to ensure maximum disclosure of corporate information, the members of a company are having comparatively restricted accessibility to its internal management and day-to- day administration of corporate working.

(3) Divorce of control from ownership : Members of a company are not having as effective and intimate control over its working as one can have in other forms of business organisation. This is particularly so in big companies in which the number of members is too large to exercise any effective control over its day-to-day affairs.

(4) Greater social responsibility : Having regard to the enormous powers wielded by the companies and the impact they have on society, the companies are called upon to show greater social responsibility in their working and, for that purpose, are subject to greater control and regulation than that by which other forms of business organisation are governed and regulated.

(5) Greater tax burden in certain cases : In certain circumstances, the tax burden on a company is more than that on other forms of business organisation.

(6) Detailed winding-up procedure : The Companies Act provides elaborate and detailed procedure for winding up of companies which is more expensive and time consuming than that which is applicable to other forms of business organisation.

Q. 38. Explain the liabilities of a Corporation ?

Ans. : Liabilities of Corporation

Corporations are legal person. It means that they have rights and liabilities. So far as rights are concerned there is no difficulty in their enforcements. But the liabilities of croporations present very complicated problems. How the liabilities of an entity which is treated as person only by a fiction of law is to be enforced against it. This problem shall be discussed under three headings :-

(1) Liability of corporations in contract;

(2) Liability of corporations for torts;

(3) Liability of corporations for criminal acts.

(1) Liability of Corporations in Contract. : Limited power to enter into a contract. Now comprehensive memorandum. For entering into a contract two things are of vital importance, i.e., the form of the contract and the capacity of the parties. A corporation has no material existence, therefore, it always acts through its agents. It signifies its assent through its seal. Therefore, the presence of the seal is considered as the evidence of the assent of the body corporate. Subject to certain exceptions this is the general rule. The form of the contract is same in every case whether the parties are the natural persons or one or both parties are corporations. So far as the capacity of a corporation to enter into contract is concerned, in England, it depends upon the source of the creation of the corporation. They are created either by a character or by a statute. In common law a corporation created by a Royal Charter can bind itself and can deal with its property in the same manner as a natural person. The power of a corporation, created by a statute to enter into a contract is limited to what the statute grants. "Thus a company incorporated under the Companies Act is limited in its capacity to the objects set out in its memorandum of association. Any contract made beyond memorandum is ultra vires and void, although it is agreed upon by all the members unanimously. Such act (contract) is capable of ratification." Ashbury Railway Carriage and Iron Co. v. Rich, L.R. 1875(7) HL 563. Such a limitation upon a corporation's power to contract has been criticised by the jurists. However, in modern times, the rule is not working as a great impediment upon corporation's power because memorandum is drafted very comprehensively. In India, there is no common law, therefore, the power of corporation to enter into a contract depends upon the statute.

(2) Liability of Corporations for Torts : As observed earlier, a corporation acts always through its agents. Therefore, liability of a corporation for the torts is based on the principle of vicarious liability. A corporation is liable for the acts of its servants done in course of employment. But this rule applies only for those acts which are intra vires the corporation. The difficulty arises in determining the liability for the acts which are ultra vires. "The strict view of English law is that if a tram company has no power to run buses, then any bus drivers engaged are not in law the servants of the Company, and therefore, the company is not liable for their torts. Goodhart, Essay in Jurisprudence and Common Law. Such acts (ultra vires acts) are divided into two classes - the acts done under the express authority of the corporation and acts done without any authority. As far as the acts done without any authority from the corporation are concerned, the corporation is not liable for these acts. About the liability for acts done with the authority of the corporation there is a difference of opinion. Goodhart's view is that the corporation is liable. In America this view has been rejected. Winfield Text book of the Law of Tort. says that the corporation is liable as a joint tort-feasor. A decided case on the point is Campbell v. Paddington Corp., 1911(1) K.B. 869, in which it has been held that the corporation is liable.

(3) Liability of Corporation for Criminal Acts : Impossibility of mens rea; Made criminally liable. The earlier view was that as corporation cannot be made liable for a crime. There are theoretical as well as procedural difficulties. Now, in recent years, corporations have been held criminally liable (even in cases where means rea is involved) for the criminal acts done by the persons acting on behalf of the corporation. In any case there is no difficulty in holding them liable for the offence for which a fine is an alternative punishment.

In D.P.P. Kent and Sussex Contractors Ltd., 1944 K.B. 146, the manager of the company had sent in false returns for the purpose of obtaining petrol coupons. The Court held the company liable and said that through its manager the company committed the offence.

In Moor v. Bresler Ltd., 1944(2) All E.R. 515, the company was held guilty for the criminal act of its secretary.

In India, in statutes containing penal provisions specific provisions have been made with respect to offences by the companies.

For example, Section 140 of the Customs Act provides as follows :-

Offences by companies. - (1) If the person committing an offence under this Chapter is a company, every person who, at the time the offence was committed was in charge of and was responsible to the company for the conduct of business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this sub-section shall render any such person liable to such punishment provided in this Chapter, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1) where an offence under this Chapter has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any negligence on the part of, any director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation. - For the purpose of this section, -

(a) "company" means a body corporate and includes a firm or other association of individuals; and

(b) "director', in relation to firm, means a partner in the firm.

Thus, though some of the problems regarding the criminal liability of corporations have been solved and some principles have been established, `how far this evolution will go is still uncertain.'

Q. 39. Write short note on :
(a) Stammler
(b) Contribution of American Realisim

Ans. (a) Rudolf Stammler (1856-1938) :

Stammler was a Professor of Roman law in various German universities and had succeeded Kohler as professor of law in Berlin University and attained distinction of being a neo-Kantian.

Contribution :

1. He rejected the natural lawyers identification of positive law with just law recognising clearly that positive law is binding independently of its goodness or badness and that study of it is a part of legal science. Like Kant he also separates justice from ethical good, the former as concerned only with external conduct and the latter with the internal conduct of the individual.

2. He differs from Kant's fundamental principle of Categorical Imperative that a just rule must be capable of universal application. For Kant has stated his categorical imperative in terms of conduct of each free-willing individual harmonious with that of all others. For Stammler it is with the idea of society that individual conduct must harmonise.

3. The second departure is in Stammler's relativism. As early as in 1896 he insisted in his Wirtschaft and Recht that while the ideal of justice was absolute its application varies constantly with the time and place what he described as "natural law with a changing content" and set out on the search for such a "relative" natural law. He ridiculed the efforts of setting out a body of unchangeable valid rules of universal application and proclaimed hat there cannot be universal rules because content of such rules is empirically conditioned and changing with changing time and situation - What he called "the natural law with a variable content". In other words everything that his reference to human wants and to the manner of satisfying them is merely empirical and is subject to constant change. There is not a single rule of law whose positive content can be fixed a priori.

4. The main theme of his theory of natural law is to provide a standard for determining the justice of a given law. According to him, "all positive law is an attempt at just law". He says the purpose of law is not to protect the will of one but to unify the purposes of all. The law of nature means to him a "just law" and a just law is that which harmomnises the purposes within the framework of social life. Thus law has to be relativistic not absolute in relation to changing circumstances of particular times, places and societies.

5. His concept of law, the idea of just law and the idea of special community all involve harmony between individual and community purposes and the participation of each in the achievement of common purposes and thus establishment of justice based on twin principles wherein the individual remains an end in himself along with duty of care and consideration towards neighbours in society.

Ans. (b) American Realist :

1. Although the descriptions "realism" and "legal realists" are commonly used, this terminology is abandoned in more recent writings. Jerome Frank has preferred the phrases "experimentalists or constructive skeptics" and he described his own attitude as one of "constructive skepticism."

American Realism is a combination of the analytical positivist and sociological approaches. It is positivist because it first considers the law as it is, understand what law is and its ultimate aim is reform. On the other hand, the law as it stands is the product of many factors. Approach of the realists is partly sociological. However, they are concerned with law rather than with society. They share with sociologists an interest in the effects of social conditions on law as well as the effect of law on society, but they emphasise the need for a prior revelation of the actual behaviour of lawyers.

2. Julius Stone calls the realist movement a "gloss" on the sociological approach. It is part of that aspect of sociology, which treat law as a given social phenomena. Its distinctive feature is the stress that it lays on studies of the behaviour of judges.

3. The realist approach is highly empirical. Law i.e., the decision of judges, is the product of ascertainable factors. Among the techniques, which opened up a new vista in the study of law, the following are the most important :

(a) The realist introduced study of case law from a point of view which distinguished between rationalisation by a judge in conventional legal terminology of a decision already reached and the motivations behind the decision itself.

(b) The inquiry into the motivation behind decisions opened up further lines of investigation. So, the study of personalities, upbringing and psychology of judges and jurymen assumed significance.

(c) The realists also study the different results reached by courts within the framework of the same rule or concept in relation to the variations in the facts of the cases and to the extent to which the courts are influenced in their application of rules by the procedural machinery which exists for the administration of the law.

1. Holmes : In 1897, Justice Holmes issued the paper in which for the first time seeds of Realism were own by him when he put forward a novel way of looking at law. He says if one wishes to know what law is, one should view it through the eyes of a bad man, who is only concerned with what will happen to him if he does certain things. Holmes said that the prophecies of what the courts will do in fact and nothing more pretensions, are what I mean by the law. It has become a tenet of the realist school that a rule of law is a rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts of its authority is challenged.

2. Gray : Gray defined law as "what the judges declare". He emphasized the fact that the personality and the personal views of a judge play an important role in decisions. He prepared the grounds for a more skeptical approach which proceeded to point out with greater emphasis the importance of non-logical factors in decisions.

3. Llewellyn (1893-1962) : Karl Llewellyn was a professor of law at the University of Columbia. According to him, realism means a movement in thought and work about law. It distrusts traditional legal rules and concepts. It concentrates more on what courts and people are actually doing. It does not accept theory that the legal rules are the only operative influence in the decision of a case. According to Llewellyn following main features of the Realism :

(a) Realism is not so much a new school of jurisprudence as a new methodology in jurisprudence.

(b) Realists regard law as dynamic and not as static.

(c) Realism assumes a temporary divorce of the "is" and "ought" for purposes of study. This means that the ethical purposes which according to the observer should underlie the law, are ignored and are not allowed to blur the vision of the observer.

(d) Realism emphasises the social effects of laws and of legal decisions.

4. Jerome Frank (1889-1957) : Initially Jerome Frank was a lawyer and served in law department of the government for about a decade. He was appointed Judge in 1941 in the United States circuit court.

(1) He says that law is what the court has decided in respect of any particular set of facts. Prior to such decision, the opinion of lawyers is only guess as to what the courts will decide and this cannot be treated as law unless the court so decides by its judicial pronouncement.

(2) Frank thesis is that law is uncertain. "Certainty of law is a legal myth". The child like craving for certainty of law in men is due to the psychology which develops from childhood when he gets protection and safety from his father. In other words, it is the "father-complex" which makes one to think of certainty.

According to him rules are merely formulae. If they are to have any meaning at all, such meaning has to be sought in the facts of real life to which they correspond. He believed that it is not proper for the lawyers and judges to stick to the myth of legal certainty in the name of precedent or codification. He points out the constructive work which judges and lawyers are required to do in every case.

(3) Frank divided realists into two camps :

- Rule Skeptics

- Fact Skeptics

- The Rule Skeptics rejected legal rules as providing uniformity in law and tried instead to find uniformity in rules evolved out of psychology, anthropology, sociology, economics, politics etc.

- The Fact Skeptics rejected even this aspiration towards uniformity

Contribution of American Realism :

American Realism is the product of a pragmatist and behavioural approach to social institutions. It is developed by the lawyers with a characteristic Anglo-American emphasis on the work of Courts and judicial behaviour as a corrective to the philosophy of analytical positivism which dominated Anglo-American jurisprudence in the nineteenth century. American realism is the counterpart of the continental movement of which Ehrlick is the principal exponent. Ehrlick devotes his attention to what he calls, "The Living Law" i.e., the body of rules of conduct and habits most of which never come before the courts. The American realists are inclined to place the decision of the law courts in the centre of law and concentrate the definition of law on decisions of courts. Dr. Allen has observed, "If American realism is rule skeptic, Scandinavian realism may be described as metaphysical skeptical."