JurisprudenceFrequently Asked Questions on Jurisprudence
(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
(c) Historical.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.
(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"?
(c) ethical.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. 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 ?
(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.
(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
(b) SanctionBeing 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.
- "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.
(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.
(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.
(a) Legal fiction
(b) Equity and
(c) Legislation(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.
(a) Private interests,
(b) Public interests,
(c) Social 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;
(c) that others will not commit any intentional aggression upon him;
(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.
(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.
(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.
(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.
(c) The law is a normative and not a natural science.
(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.
(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.
(c) The law is a normative and not a natural science.
(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.
(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.
1. Legal fiction
2. Equity and
3. Legislation1. 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". 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. 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." 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.
(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 :
(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.
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.
(i) a strict sense
(ii) a loose senseIn 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.
(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.
(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).
(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.
(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;
(c) A duty to one not a human being, and
(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,
(c) Power is that which I can do effectively against others,
(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.
(a) Possession is protected for the preservation of peace.
(b) Possession is protected as a part of the law of tort.
(c) Possession is protected as part of the law of property.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.
(c) Long adverse possession confers title even to property which originally belonged to another.
(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.
(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.
(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;
(c) The owner has a right to consume, destroy or alienate the thing.
(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.
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 ownership1. 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.
(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.
(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.'
(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 uniformityContribution 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."