JANHIT COLLEGE OF LAW 101 JURISPRUDENCE by Mr.Irshad Khan.pdf · applied indiscriminately to all kinds of action whether animate ... that the task of law is "social engineering."

JANHIT COLLEGE OF LAW

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Very Short- Answer Questions

Jurisprudence

Q.1 What are the various kinds of law?

Answer Kinds of Law-The term Law has been used in different senses- Law, in its common use, means a number of things. Blackstone says "Law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of action whether animate, rational, irrational. Thus, we say the laws of motion, of gravitation, of optics or mechanics, as well as the laws of nature and of nations'. Law (in its comprehensive sense) is generally of the following kinds-(i) Imperative law (ii) Physical or scientific law. (iii) Natural or moral law. (iv) Conventional law. (v) Customary law. (vi) Practical or technical law. (vii) International law; and (viii) Civil law.

Q.2 What is Imperative Law?

Imperative Law--Imperative law means 'a rule of action imposed upon men by some authority which enforces obedience to it.' Its enforcement may be secured by physical force or by some other means. In an organised society law tends to become imperative. Not only the rules given by the state but also the rules of other organisation and associations are imperative because there is some kind of sanction behind them.

Q.3 What do you mean by Physical or Scientific Law?

Ans. Physical or Scientific Law-Physical law signifies those uniformities and regularities which are observable in nature as the laws of light and heat. It includes also those actions of human beings which are uniform.

Natural Law - It has various other names such as the 'moral law' 'Divine law', 'Jaw of God', 'universal or eternal-law' and 'law of reason' etc.


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It signifies the principles of natural right and wrong, in other words, the ideal conception of justice. It has often been considered to be different from the positive law or positive justice (the concept of right, wrong and justice in actual practice). The idea of natural law and justice is based on moral or religious grounds. Generally, it presents a picture of ideal law or what the jaw ought4o be.

Q.4 What do you mean by Conventional law?

Conventional Law - Conventional law means those rules or set of rules which are the outcome of an agreement between persons or groups of persons. They agree to observe these rules in the regulation of their conduct towards each other. This agreement is law for the parties to it. The rules of voluntary societies are the examples of such law. Conventional law in cases is enforced by the state. When it is enforced by the state it become $ a part of the 'civil law'.

Q.5 What is Customary law?

Ans. Customary Law - By 'Customary law' is meant those rules and principles which have been observed in a particuar community in actual practice for a long time. To them who observe these rules they are law. They come into existence due to a number of reasons. When some kind of action gets general approval and is generally observed for a long time it becomes a custom. Sometimes they come into being on the ground of expediency.

Q.6 What do you mean by Technical law?

Ans. Technical Law - Technical law means those rules which are necessary for the attainment of certain ends such as the laws of poetical composition or the laws of health etc. There are certain rules the observance of which is necessary for the composition of poetry. Similarly, there is a set of rules which will have to be followed if one wants health.


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Q.7 What is International Law?

International Law - By International law we mean the aggregate of the rules by which the states are governed in their conduct towards and relation with each other. The recognition of this kind of law started many centuries ago. In modern times, International law is a very important branch of law. There have been jurists even in the present century who argued that International law is not law but its rapid growth and the important role that the International law plays in modern times, have left this point no longer in controversy and now it is considered to be a very important branch of law.

Q. 8 What do you mean by Civil law?

Ans. Civil Law - By civil law is meant the law of the land or municipal law. It is enforced by the courts of the state. In jurisprudence the word 'law' is used to mean mainly this kind of law. Salmond says that "this is law in the strictest and original sense of the term, all other applications of the term being is by analogical extension."

Q.9 Explain the contribution of Savigny.

Ans. Contribution of Savigny (1779-1861) - Savigny is considered as (lie greatest 'German' jurist of 19th Century. He was a teacher in the university of Berlin and later in 1819 was appointed as chairman of Saw also His famous works. - (i) The Law of Possession, (ii) History of Roman Law in Middle ages and (iii) The system of modern Roman law testify his genious. It is book named "Das Rhect des Besitzes" was published in 1903 which is considered to be the best book on Roman law. He is the founder of historical


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Savigny's theory of Historical School came as a powerful reaction against I Kill century 'rationalism' and principles of “natural law’ the advocates of which

Q. 10 Explain the contribution of Sir Henry Maine.

Ans. Contribution of Sir Henry Maine (1822-1888) - Sir Henry Main! was a great 'English' Jurist who presented a very balanced view of history Savigny explained the relation between community and the law whereas Maine went further and pointed out the link between the developments of both and purged out many of the exaggerations which Savigny had made. Maine started Ins career as Regius Professor of Civil Law in the University of Cambridge at ,111 early age of twenty-five. He was Law Member in the Council of the Governor general of India between 1861 and 1869. This provided him an opportunity for (he study of Indian Legal system. From 1869 to 1877 he occupied the chair of historical and comparative jurisprudence in Corpus Christi College, Oxford. Ancient Law', Village 'Communities,' Early History .of Institutions' dissertation on Early Law and Customs', are the important contributions made by him to legal thought and legal philosophy.

Most of the historical jurists of the Continent confined their studies only lo Roman Law but Maine studied the legal systems of various communities and by their analysis laid down a comprehensive theory of the development of law. On the one hand, differing from Savigny, Maine recognized legislation .is a very potent source of law, and on the other hand, he avoided the excesses of philosophical school of Germany. Maine used the study of legal history mostly to understand the past and not to determine the future course and standards, and in this field he made valuable contributions to legal theory. Later researches in anthropology have brought new facts into light which do not support Maine's view of the course of legal development but even then his work is creditable for his approach.


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Maine made a comparative study of various legal systems and traced the course of their evolution. According to him, law developed through the Following 'four stages' i.e., - (i) Law made by the ruler under divine inspiration, (ii) Customary Law, (iii) Knowledge of law in the hands of priests, (iv) Codification. The societies which do not progress beyond the fourth stage are "static societies" (as Maine calls them). The societies which go on developing their law by new methods are called progressive. Progressive societies develop their laws through legal fiction, equity and legislation.

As to the legal conditions prevailing at the end of the general course of evolution, i.e., of static societies, Maine calls them 'status' and ultimately he concluded that a progressive society moves "from the status to contract". Maine's theory preaches a belief in progress and it contained the germs of sociological approach. He inspired later Jurists like Maitland, Vinogradoff and Lord Bryce. who applied historical and comparative method of the study of

Q.11 Explain the contribution of Duguit.

Contribution of Duguit (1869-1928) - Duguit's Theory of "Social Solidarity" ultimately becomes a theory of natural law, or a theory of justice, the idea of justice that we find in him is perfectly in social terms and derived from social facts. He shaped a theory of justice out of the doctrines of sociology. Many later jurists, like Kelsen though proceeding from different premises, i cached similar conclusions as Duguit had reached (specially about the state, right, and public and private law).

He launched a vigorous attack on the myth of state sovereignty. The 'social solidarity' is the touch-stone of judging the activities of individuals and all organisations. State is also a human organisation and it is in no way different from other organisations. It is simply the expression of the will of the individuals who govern. They too are under a duty to ensure 'social solidarity'. Duguit's view on state and its function led him to deny the distinction between


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private and public law. Both are to serve the same end, i.e., 'social solidarity'. He denies the existence of private rights. With Comte he says : “The only right which any man can possess is the right always to do his duty”. National] socialists and Soveit jurists both adopted many of the principles from Duguit's theory, but interpreted it in such a way as to suit their purpose or took only such part of the theory which supported their activities. Inspired by Duguit's emphasis on the importance of 'group' many later jurists as Hauriou and Renard propounded 'Institutional theory'. Though Duguit's theory holds good hardly on any point, he is credited for his original and comprehensive approach which inspired many jurists to propound new theories.

Q. 12 Explain the Contribution of Roscoe Pound.

Ans. Contribution of Roscoe Pound - Pound is considered to be the American' leader in the field of sociological jurisprudence. His main thesis is that the task of law is "social engineering." By social engineering pound means a balance between the competing interest in the society. His legal philosophy is free from all dogmas. He takes a middle way avoiding all exaggerations. He speaks of values but says that they are relative. He emphasises 'engineering' but does not forget the task of maintaining of balance. His approach is experimental. Pound's theory stands on a practical and firm ground and it has inspired great practical field-work. His emphasis on studying the actual working of legal rules in the society, the importance of social research for good-Saw making and pointing out the great constructive function which the law is to perform are very valuable contributions to jurisprudence. He points out the responsibility of the lawyer, the judge and the jurist and gives a comprehensive picture of the scope and field of the subject. Pound's influence on modern legal thought is great and the study of the subject is being undertaken under the light of his theory.

Q.13 Explain the contribution of Kelsen.


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Ans. Contribution of Kelsen- Kelsen has made an original, striking, and greatly valuable contribution to jurisprudence. He has considerably influenced the modern legal thought. He propounded "Pure theory of law" which on tin-one hand, avoids any discussion of ethics of natural law, and, on the other hand, it reacts against the modern sociological approaches which go to widen the boundaries of jurisprudence to a very large extent. According to kelsex Law is a normative science. Every legal act relates to a norm which gives legal validity to it. In this way every legal norm gains its force from some 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 their force. This 'Grundnorm' is the starting point in a legal system. From this base a legal system broadens down in gradation, becoming more and more detailed and specific as it progresses. Kelsen calls this process 'gradual concretization' of 'Grundnorm' or the Basic norm - thus focussing the law to specific situations. This is a dynamic process.

Analysis of legal concepts - Kelson's view regarding right, personality, state, and public and private law have received great support from various quarters and they require a very close study. His theory very forcefully suggests for a revaluation of these concepts.

Positivist - His abstract notions which covered the law, Kelsen took positive law as the subject-matter of his study. With his scientific precision and mighty and unparallel logical subtlety he analysed the legal order in a most convincing way. Such criticism as "in the anxiety to keep his theory 'pure', he raises it to such a remote and inaccessible altitude that it has difficulty in drawing the breath of life" which means that theory gives no practical guidance, is out of point. Kelsen himself never intended his theory for this purpose.

Practical value - The practical value of the theory for a lawyer is that at least it clears his mind and after that he is free to make a choice of an ideology.


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The theory was much criticised in the beginning as it propounded something and starting but now it is drawing very wide appreciation,

Q.14 Explain the Contribution of Hart.

Contribution of Hart - Hart's contribution may be assessed as in the light of the following points -

1. Reformulation of Analytical Positivism - His theory, on the one hand builds on and, on the other hand, makes important modifications in the theories of Austn and Kelsen. "Two aspects of Hart's analysis of the concept of law are of special importance. In the first place, he bridges the age-old conflict between the theories of law emphasising recognition and social obedience as the essential characteristic of a legal norm, and those that see the distinctive characteristic of law in the correlated elements of authority, command, and sanction." The former approach is that of the Savigny, Ehrlich and others. The latter is that of Austin, Kelsen and their followers.

2. Primary rules of obligation and secondary rules of recognition- Social acceptance predominates in primitive societies and organised authority predominates in more developed societies. This distinction is expressed in terms of contrast between primary rules of obligation and secondary rules of recognition.

3. Primary rules give way to secondary rules - ''Both historically and logically, primary rules of obligation generally give way to secondary rules, in which the forms of recognition, change arid adjudication are systematised, usually through the centralisation of authority, the articulation of definite procedures for the making application and execution of law, and a system of official sanction.

International Law – According to Hart, in the contemporary world international law is the conspicuous illustrations of a system of primary rules.


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Explain the "Doctrine of Stare Decisis AflsrT5octrine of Stare Dedsi - Historically speaking, the doctrine of precedents began by asserting the "Doctrine of stare decisis”. This means 'to stand by precedent and not to disturb the settled point of law". When a point of law has been decided once, it becomes precedent and it must not be departed from in subsequent cases. In other words, the judges have to follow the past decisions as model with the help of which they should decide the case on hand.

The 'Doctrine of Stare Decisis' is not fully applicable in India. The supreme court is not bound by its-own earlier decisions; so also the High courts are not bound by their earlier decisions. But to say this is to utter a technicality because in actual fact the judge; are most reluctant to depart from earlier decisions. The Supreme Court has laid down that except for compelling reasons, it will not depart from its earlier decisions. In Indian jurisprudence, an outstanding example is the historic case of I.C. Golaknath which laid down in the year 1966 that even in future Parliament cannot amend fundamental rights in Part III of the Constitution. This decision was expressly overruled in Keshavan and Bharati's case, known as the & indumenta rights case', white was decided by the Supreme Court in 1973.

Q. 15. Explain vicarious liability under criminal Saw?

Ans. Vicarious Liability under Criminal law - In criminal law the general principle is that a person is not liable for the acts of another. A master is not criminally liable for the unauthorized acts of his servant. However, there are certain exceptions to this rule. The legislature may prohibit an act or enforce a duty in such terms as to make the prohibition or the duty absolute; in that case the principal is liable if the act is in fact done by his servant. Thus, a statute may impose criminal liability upon the master as regards the acts or omissions of his servants. A master or owner is liable in case of public nuisance


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Q. 16 What is rule of absolute liability?

AnsRule of absolute liability - in M.G. Mehta Vs. Union of India, the SC 1086, the Supreme Court evolved the rule of 'absolute liability as part of Indian law in preference to the rule of strict liability laid down in Ryiamds Vs. Fletcher. It expressly declared that the new rule was not subject to any of the exceptions under the rule in Rylands Vs. Fletcher. Because those who had established hazardous industries in and around thickly populated areas could escape the liability for the havoc caused thereby pleading some exception to the rule in Ryiands Vs. Fletcher. For instance, when the escape of the substance causing damage is due to the act of a stranger, say due to sabotage, there is no liability under that rule. In his original petition Mr. M.C. Mehta sought a closure of Shriram Industries as it is engaged in manufacturing of hazardous substances and is located in a densely populated area of Delhi. While the petition was pending, oleum gas leaked from one of its units affecting several persons. A three judge bench allowed the partial reopening of the plant but directed the company to take all necessary safety measures. On behalf of those affected by the gas leak, the Delhi Legal Aid and Advice Board and the Delhi Bar Association filed applications for compensation in the original petition by M.C. Mehta. The case is referred to a larger bench of five judges. While the 3-judge bench extended the scope of the right to life and said that the State had power to place restrictions on carrying of hazardous industrial activities, the 5-judge bench made further extension of the right and held that the right to life contains the right to claim compensation to victims of pollution hazards. The court observed that the rule of Rylands Vs, Fletcher was evolved in the 19th century at a time when all these developments of science and technology had not taken place... We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrilized economy The court, thus, held that it was not bound to follow the 19th century rule of English law, and it could evolve a rule suitable to the social and economic.


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Explain the modes of acquisition of possession.

Modes of Acquisition of Possession - There are three modes of acquisition of possession i.e. -

Taking - It implies an act exclusively on the part of the person who takes' the possession. Taking is 'original' or 'derivative'. The 'original' taking takes place when the object has no previous owner as res nullius. When the possession of a thing is taken which has already a previous owner, it is 'derivative' taking. Here 'taking' means acquiring possession without the consent of that previous owner or possessor. The derivative taking may be rightful or wrongful. Keeton gives the example of both "Where an innkeeper seizes the goods of his guest, who has failed to pay his bill, there is an acquisition of possession against the will of the previous possessor, but it is rightful taking of possession Where a thief steals a watch, this is still an acquisition of possession against the will of the true owner, but it is wrongful, i.e. not in pursuance of a legal right.”

Delivery - Delivery means the voluntary relinquishment of in by one person in favour of another. Delivery may be actual or constructive Actual delivery means the transfer of immediate possession. A delivers a watch to B. All that is not actual delivery is constructive delivery. The delivery of a key of a house with the intention of delivering possession of the house is the constructive delivery of the house,

By operation of law - Acquisition of Possession also takes place when by the operation of law goods are removed from the possession of one person to the other. For example, when a person dies, the things in his possession pass to his personal representative.

Jurisprudence

Jurisprudence is the science of the first principles of civil Mid. Discuss. Or


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"Jurisprudence is the formal science of Positive Law." Holland. Explain. Or

"Jurisprudence is the Philosophy of Positive Law", Austin. Discuss.

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"Jurisprudence is the scientific synthesis of the essential principles of law". Dr. Allen. Or

Examine with reference to Holland and Salmond the definition of Jurisprudence. Point out how far these definitions are good today? Or

Q.19 Discuss in brief the various definitions of Jurisprudence. What according to you would be the most appropriate definition of Jurisprudence ?

Ans. Etymological Meaning of Jurisprudence - The English word "Jurisprudence" has been taken from a Latin word "Jurisprudential", which consists of two words, 'Juris* and 'prudentia'. *Jruis' means law and 'Prudentia' means knowledge. Jurisprudence, therefore, literally means knowledge of law and its application. In this sense it covers the whole body of legal principles in the world. It studies the general terms of the law.

Juristic Meaning of Jurisprudence - That history of the concept of law shows that jurisprudence has assumed different meanings at different times. It is, therefore, difficult to give a singular definition of the term. Since the growth and development of law in different countries has been under different social and political conditions hence the different jurists have given the different definitions according to their own notion of the subject-matter and so it is not possible to give a universal and uniform definition of Jurisprudence. So the different jurists have defined this term in different ways -


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1. According to Ulpian, "Jurisprudence is the knowledge of things human and divine, the science of the Just and unjust."

Criticism-The above definition is wider and broad enough In cause it includes the term 'Dharma' under Hindu Jurisprudence. It also covers the province of religion, ethics and philosophy. According to Jaimini Dharma may be defined as "that which signifies by a command, and leads to a man's material and spiritual salvation. The modern jurisprudence does not study the spiritual salvation. It is now-a days places the periods of prescription or the requisites of a good marriage. It is for jurisprudence to elucidate the meaning of prescription in its relation to ownership and to actions; or to explain the -Jegal aspects of marriage and its connection with property and the family.

Q.20 Discuss the nature and scope of Jurisprudence. What is of this subject in the study of law? 'Jurisprudence is the eye of law."Comment.

Ans. Nature of Jurisprudence—Jurisprudence in its nature is entirely /different subject from other social sciences. The reason for this is that/ft is not codified but a growing and dynamic subject haying no limitation on itself. Its inquiry system is of different status from other subjects. Every jurist does not base his study on the rules made but tries to understand their utility after due deliberation. Thus, jurisprudent has no limited scope being a growing subject.

There is a difference of opinion about the nature of Jurisprudence. It is called both Art and Science. But to call it science would be more proper and useful. The reason for this is that just as in science we draw conclusions after making a systematic study by inventing new methods. In the same/way jurisprudence is concerned with the fundamental principles 0flaw and systematic and scientific study of their methods.


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Scope of Jurisprudence—Broadly speaking, Jurisprudence includes all corrects of human order and conduct in State and Society.

According to Justice P. B. Mukherjee, "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 that study of man in relation to State and Society.”

Jurisprudence involves certain types of investigations into law, an investigation of an abstract, general and theoretical nature which seeks to lay the bare essential principles of law and legal systems. Elaborating the point further, Salmond observed, "In jurisprudence we are not concerned to derive rules from authority and apply them to problem; we are concerned rather to reflect on the nature of legal rules, on the underlying meaning of legal concepts and on the essential features of legal system." This makes the distinction between law and Jurisprudence amply clear. Thus, whereas in law we look for the rule relevant to the given situation, in jurisprudence we ask, what is for a rule to be a legal rule, and what distinguishes law from morality; etiquette and other related phenomenon. It, therefore, follows that jurisprudence comprises philosophy of law and its object is not to discover new rules but to reflect on the rules already known.

Utility or Importance of Jurisprudence — It is often said that ^jurisprudence being an abstract and theoretical subject, is not of any practical use. But it is not correct to say so. Its utility is as under —

1. Salmond 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 put to practical use but by reason of the fascination which it holds for him, likewise the writer on jurisprudence may be impelled to his subject by its intrinsic interest. The legal researches on jurisprudence may well have their effect on contemporary socio-


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political thought at the same time may themselves be influenced by these ideologies.

Jurisprudence also has its practical applicability. It seeks to rationalise the concepts of law which enables us to solve the different problems involving intrieateness of law. In other words, it serves to render the complexities of law more manageable and rational and in this way jittery can help to improve practice in the seats of law3. Jurisprudence has great educational value. The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their rigidity and formalism and trains them to concentrate or social realities and the functional aspects of law. It is not the form of law but the social function of law which has relevance in modern jurisprudence. Law has to take note of the needs of society and also of the advances in related and relevant disciplines such as sociology, economics, philosophy, psychiatry etc. For Instance, a proper understanding of law of contract may perhaps require some knowledge of economic and economic theory or a proper grasp of criminal law may need some knowledge of criminology and psychiatry and perhaps also of sociology.

Q. 21. (a) Discuss the various ends of criminal justice, In this connection give a critical appraisal of various theories of punishment. Explain the relation between the deterrent and preventive theories. Which theory of punishment is suitable to India?

(b) In the light of the various theories of punishment express your opinion for and against the abolition of the death sentence. Is capital punishment unconstitutional?

Ans. Various Ends of Criminal Justice - The purpose of criminal justice is to punish the wrongdoer. He is punished by the state. The question arises for consideration as to what is the purpose of punishment or the end of criminal justice. From very ancient times, a number of theories have been given


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concerning the purpose of punishment. These theories may be broadly divided into two classes. The view of one class of theories is that the end of criminal justice is to protect and add to the welfare of the State and Society. The view of the other class of theories is that the purpose of punishment is retribution. The offender must be made to suffer for the wrong committed by him.

Theories of Punishment—There are five theories of punishment —

1. Deterrent Theory — According to Salmond, "Punishment is before all things deterrent and the chief end of the law of crime is to make the evildoer an example and a warning to all that are likeminded with him." I Lock is also of the opinion that the commission of every offence should be made "a bad bargain for the offender." According to the deterrent theory of punishment, the object of punishment is not only to prevent the wrongdoer from doing a wrong a second time but also to make him an example to other persons who have criminal tendencies. A judge once said : "I don't punish you for stealing the sheep but so that sheep may not be stolen." An exemplary punishment should be given to the criminal so that the others may learn a lesson from him. As Paten puts ; "The deterrent theory emphasises the necessity of protecting society, by soHreating the prisoners that others will be deterred from breaking the law.

1. Preventive Theory — According to this theory the object of punishment is preventive or disabling. The offenders are disabled from repeating the offences by such punishments as imprisonment, death, exile, forfeiture of office etc. By putting the criminal in jail, he is prevented from committing another crime. By dismissing a person from his office, he is deprived of an opportunity to commit a crime again.

Paton says : "The preventive theory concentrates on the prisoner but seeks to prevent him from offending again in the future. Death penalty and exile serve the purpose of disabling the offender." An example of preventive punishments


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is the cancellation of the driving licence of a person. As he has no licence, he is prevented from driving.

2. Criticism — According to Kant this theory treats man as a thug not as a person, as a means not as an end in himself. It conflicts with I he-sense of justice. It violates the fundamental principle of all free communities that the members of such communities have equal rights tolife, liberty and the personal security.

3. Reformative Theory—According to reformative theory, the object of punishment should be the reform of the criminal. Even if an offender commits a crime, he does not cease to be a human being. According to Mahatma Gandhi, 'Hate the sir, not the sinner. The reason is that the society contains within itself the germs of all the crimes that are about to be committed and the criminal is only the instrument which executes them. He may have committed a crime under circumstances which might never occur again. The object of punishment should be to bring about the moral reform of the offender. The qualities of men are latent in every criminal They are merely to develop in them.

4. Retributive Theory—In primitive society, punishment was mainly retributive. The person wronged was allowed to have his revenge against the wrongdoer. The principle of '"an eye for an eye", "a tooth for a tooth" was recognised and followed. Justice Holmes writes: "It is commonly known that the early forms of legal procedure were grounded in vengeance."

According to Stephen the purpose of punishment is to gratify the desire for vengeance by making the criminal pay with his body. To quote him : "The criminal law stands to passion of revenge in much the same relation as marriage to the sexual appetite." Punishment gratifies the feeling of pleasure experienced by individuals at the thought that the criminal has been brought to justice. That desire ought to be satisfied^ inflicting punishment in order to avoid the danger of private vengeance.


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Arguments in Favour of Capital Punishment—On the other hand 3 juristsargue—

(i) That there are some offenders who are not only incorrigible but who are immensely dangerous to the society, and there is no reason why the society should be burdened with maintaing such people.

(ii) It is to be noted that punishment by state is a substitute for private revenge and if a murderer is not punished with death, it is quite possible that other relatives of the victim might murder the murderer and thus a chain of murder might set in.

Thus, it is clear that so long as human emotions are powerful, the powers of vengeance prevail and as, such capital punishment is a necessary kind of punishment.

Conclusion —It can fairly be said that although capital punishment serves some purposes but it must be awarded only in those cases where there are aggravating circumstances.

Arguments in Favour of Capital Punishment—On the other hand 3 jurists argue—

(i) That there are some offenders who are not only incorrigible but who are immensely dangerous to the society, and there is no reason why the society should be burdened with maintaing such people.

(ii) It is to be noted that punishment by state is a substitute for private revenge and if a murderer is not punished with death, it is quite possible that other relatives of the victim might murder the murderer and thus a chain of murder might set in.


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Thus, it is clear that so long as human emotions are powerful, the powers of vengeance prevail and as, such capital punishment is a necessary kind of punishment.

Conclusion —It can fairly be said that although capital punishment serves some purposes but it must be awarded only in those cases where there are aggravating circumstances.

Is Capital Punishment Unconstitutional ? — In Bachan Singh Vs. State of Punjab A.I.R., 1980 the constitutionality of death penalty for murder provided U/S. 302 I.P.C. and the sentencing procedure embodied in S. 354 (3) Cr. P.C., 1973 was challenged in the Supreme Court, on the ground that they are violative of Arts. 14,19 and 21 of the Constitution. The majority of the Constitution Bench held that provisions of death penalty as alternative punishment for murder and also the sentencing procedure in S. 354 (3) do not violate Arts. 14, 19 and 231 of the constitution.

Q.22 Law is a command of Sovereign. “Austin Discuss. Do you agree with the view that Austinian definition of law is not suitable for a modern democratic state which has a written Constitution? Or

Critically explain the imperative Theory of Law How far do you agree that it is unethical and inadequate?

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

Positive Morality- Other laws which are not set by political superiors (set set by persons who are not acting in the capacity or character of political superiors) or by men in pursuance of legal rights. This class includes international Law.

Laws improperly so called are also divided into two heads-


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Laws by Analogy- These are the opinions or sentiments of an underterminate body of men, i.g., laws of fashion, honour and etiquette etc.

Positive Law as Command—The law properly so-called is die positive law depends upon political authority—the sovereign. Every rule, therefore, according to Austin is a command. So laws properly so called are a species of commands. If you express or intimate a wish that I shall do or forbear from some act, and you will visit me with an evil in case I do not comply with your wish, the expression or intimation of your wish is a command. If I am bound by it, I lie under a duty to obey it. Command—duty are, therefore, correlative terms. Command further implies not only duty but sanction also.

Command and Sanction—Sanctiojris an evil which will be incurred if a command is disobeyed and is the means by which a command or duty is enforced. It is wider than punishment. A reward for obeying the command can scarcely be called a sanction. A command embraces—

(a) A wish or desire conceived by a rational being to another rational being who shall do or forbear;

(b) An evil to proceed from the former to be incurred by the latter in case of non-compliance; and an expression or intimation of the will by words or otherwise. Command are of two kinds — 1. General and 2. Particular.

General Command—A general command is a law or rule where it obliges generally to acts or forbearances of class. All commands are not law, it is only the general command, which obliges to a course of conduct, is law.

Particular Command—It is occasional or particular when it obliges to a specific individual act or forbearance.

Law is a command of sovereign which obliges a person or person to a course of conduct. It requires signification and can, therefore emanate from a


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determinable source or author (a person or body of persons). Thus, Austin resolved every law into a command of the law giver, an obligation imposed there by on the citizen and a sanction threatened in the event of disobedience.

Q.23 Discuss Kelsen’s Pure Theory of Law. What are the main points of criticism of this theory?

Ans. Law is a Normative Science—According to Kelsen law is a normative science.' But law norms may be distinguished from science on the ground that norms of science are norms of 'IS' (Sein) are based on cause and effect such as law of gravitation.The law natural science are capable of being accurately described, determine and discovered in *IS' which is an essential characteristic of all natural while the law norms are 'Ought' (Soiisn) norms. Law does not attempt describe what actually occurs but only prescribes certain rules. It sir ii one breaks the law, then he ought to be punished.' These legal 'Ought' norms differ from 'morality norms hi respect of the fact that the for me are backed by physical compulsion while the latter lacked. Kelsen does not admit the command theory of Austin as it introduces psychological element into the definition of law which Kelsen avoids. To Kelsen, "law is a depsychologized command, a command which does not imply a will in a psychological sense of the term.

2. Hierarchy of Normative Relations—The science of law to Kelsen is knowledge of hierarchy of normative relations. He builds on Kant's theory of knowledge and extends this theoretical knowledge to law also. He does not want to include in his theory what the law ought to be and speaks of his theory of law as a structural analysis, as exact as possible, of the positive law, an analysis free of all ethical or political judgments of value.

3. Seperation of Mw from Other Social Sciences and Morals — Kelsen limits the scope of jurisprudence by excluding its relation with any social science. He seperates law from polities, sociology, metaphysics and all other extra-legal


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disciplines. Like Austin, Kelsen divested moral, ideal or ethical elements from law and wished to create a 'pure* science of law devoid of all moral and sociological considerations. He rejected Austin's definition of law as a command as it introduces subjective considerations whereas he wanted legal theory to be objective. Likewise, he also 'discards the notion of justice as an essential element of law because many laws, though not just, may still continue as law. He defines 'science' as. a system of knowledge or a 'totality of cognitions' systematically arranged according to logical principles. Kelsen's grundnorm is analogous to Austin's concept of sovereign without which law cannot be obligatory and binding. Thus, Kelsen's pure theory of law is a theory of positive law based on Tabrmative order eliminating all extra-legal and non-legal elements from it.

4. The 'Grundnorm' — Kelsen's Pure Theory of Law is based on pyramidical structure of hierarchy of norms which derive their validity fronvtne basic norm which he termed as 'Grundnorm'. The Grundnorm or basic norm determines the content and gives validity to other norms derived from it. Kelsen has no answer to the question as to wherefrom the Grundnorm or basic norm derives its validity. He considers it to be a meta-legal question in which jurist need not intrude. Keken, however, onsiders Grundnorm as a fiction rather than a hypothesis.

5. Pyramid of Norms — Kelsen considers legal science as a pyramid with 'Grundnorm' at the apex. The subordinate norms are controlled by norms superior to them in hierarchical order. The 'Grundnorm is however, independent of any cither norm being at the apex. The process of one norm deriving its power from the norm immediately superior to it, until it reaches the Grundnorm has been termed by Kelsen as 'concretisation' of the legal system. Thus, the system of norms proceeds from downwards to upwards and finally it .closes at the Grundnorm at the top.


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Essential Features of Kelsen's Theory—The basic features of Kelsen Pure Theory of Law are as under—

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

2. Legal theory is science, not volition. It is knowledge of what the law is', not of what the law 'ought to be.

3. The law is a normative not a natural science.

4. Legal theory as a theory of norms is not concerned with the effectiveness of legal norms.

5. A theory of law is formal, a theory of way of ordering, changing contents in a specific way.

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

Postulates of Kelsen's Theory—Postulates of Kelsen theory are — 1. Law and State are riot Two Different Things — According to

Kelsen-there is no difference between law and state. He says that when all derive their power and validity ultimately from the 'Grundnonn' there can be no superior person as 'sovereign'. In the same way the state is but a simple way of conceiving the unity of legal order. The reality of state is that it is a system regulating the social behaviour in a normative order. But such a working can be discovered only in a legal system. Really speaking, law and state are the same, and the difference between them-appears because we look at them from two different points of view.

2. No Distinction Between Public and Private Law—According to Keisen, there is no difference between public and private law. When all law derives its force from the same 'Grundnorm', two entirely different characters cannot be


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attributed to it. No distinction between them can be made on the ground that they protect interest of different nature. Private interests are protected in public interest.

3. No Difference Between Natural and juristic Persons—To Kelsen a legal personality is artificial and derives its validity from superior norms. 'Personality in law means an entity capable of bearing rights and duties. The legal order confers personality where it wills. Law treats human beings also as an entity having' Vights and subject to duties. So in law they differ in no way from legal persons.

4. No Individual Rights — Kelsen's-xpnception of law as a system of normative relations leads to the conclusion that there is no such thing as individual right in law. Legal duties are the 'essence of law'. Law is always a system of 'oughts'. 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.' In criminal law, in most part, the idea of individual right has ceased and the State itself moves against the accused.

5. Supermacy of International Law—Kelsen tries to estabjjshthe supremacy of International Law. Kelsen says that the International Law should also be considered a 'juridical order. To remove the difficulty which arises by the fact that International Law does not possess all the characteristics of law, especially the 'apparatus of compulsion', he says that it is comparable to 'primitive law.' As law in the beginning was in customary form without an adequate sanction and assumed the present form after a course of evolution, so the present International Law is (like primitive law) in its early stage, and in future it will have all the characteristics which the modem law has.

Q.24. Write a critical note on the Historical school of Jurisprudence.

Or


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Critically examine the Volksgeist Theory of Savigny and assess his contribution.

Ans. Historical School of Jurisprudence—The chief supporter of this school are —Savigny, Cartar, Puchta, Henary Maine and G.C. Lee. Under Historical School of Jurisprudence we study the orgin, development and systematized change in law and legal concepts In this school the study of mutual relations of state and law is made in Historical perspective. According to the view of Historical School law is found, not made. Law is based on customs and usages. One of the main exponent of this school is Savigny.

Savigny (1779-1861)-German jurist Fredrich Karl Von Savigny is known as the founder of Historical School of Jurisprudence. The main propositions of his theory of law are as under—

1. Source of Law is Volksgeist—Savingny was of the opinion that law is a product of the people's life—it is a manifestation of its spirit. Law has its source in the general consciousness (Volksgeist) of the people. According to Savigny, a law made without taking into consideration the past historical culture and tradition of community is likely to create more confusion than solving the problems because law is not an "artificial lifeless mechanical device." Thus, the origin of law lies in the popular sprit of the people which Savigny termed as Volksgeist.

2. Law Develops Like Language and has a National Character—

Savigny remarked that law has a national character and it develops like language and binds people into one whole because of their common faiths, beliefs, and convictions. He pointed out that "law grows with the 'growth of the society and gains its strength from the society itself and finally it dies away as the nation loses its nationality." Law, language, customs and government have no separate existence from the people who follow them. Common conviction of


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the people makes all these as a single whole. The central theme of Savigny's historical jurisprudence may be summarised as under—

"The organic evolution of law with the life and character of the people develops with the ages, and in this it resembles language. As in the latter, there can.be no instant of rest, there is always movement, and development of law is governed by the same power of internal necessity as simple phenomena. Law grows with a nation, increases with it, and dies at its dissolution and is a characteristic of it."

3. Early Development of Law is Spontaneous; Latter on It is Developed by Jurists—According to Savigny in the earlier stages law develops spontaneously according to the internal needs of the community but after the community reaches a certain level or civilization, the different kinds of national activities, hitherto developing as a whole, bifurcate in different branches to be taken up for further study by specialists such as jurists, linguists, anthropologists, scientists etc. Law has to play a duel role, namely, as a regulator of general national life and as a distinct discipline for study. The former may be called the political element of law while the latter as a jurisitc element but both have a significant role in the development of law. The history of Roman law furnishes the best illustration of these processes.

4. Savigny's View on Codification of Law—Although Savigny not totally against codification of laws. He, however, opposed the. codification of the German law on the French (Napoleonic Code ) pattern at that time because Germany was then divided into sevn.il smaller states and its law was primitive immature and lacked uniformity. He said that German law could be codified at a later stage when the unification of Germany takes place and there is one law and one language throughout the country. Since Volksgeist i.e. common consciousness had not adequately developed at that time, therefore, codification would have marred the evolution and growth of law.


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5. Law is a Continuous and Unbreakable Process—Tracing the evolution of law from Volksgeist, Savigny considered its growth as a continuous and unbreakable process bound by common cultural traditions and beliefs. It has its, roots in the historical processes which should constitute the subject of study for the jurists. According to him, codification of law may hamper its continuous growth and, therefore, it should be sorted to when the legal system has fully developed and established.

6. Saragny's Admiration for Roman Law—While emphasizing Volksgeist as the essence of law, Savigny justified adoption of Roman law in the texture of German law which was more or less diffused in it. He, therefore, located Volksgeist in the Romanised German customary law. He considered Roman law as an inevitable tool for the development of unified system of law in Germany.

Q.25 “The movement of Progressive Societies has hitherto been a movement from status to a contract.” Comment on this statement of Maine and critically assess his contribution? Also comment on the reversal of trend from contract to status.

Ans. Ans. Henry Maine (1822-1888) — Maine studied ancient law of India-and drew a comparison between the Indian Law and the Laws of Modern Western Societies. Among other works of Maine, his books entitled 'Village Communities', 'Early History of Institutions', 'Dissertation of Early Law and Custom', deserve special mention.

Maine's Views on the Development of Law—Maine, through his comparative researches came to the conclusion that the development of law and other social institutions has been more or less on an identical pattern in almost all the ancient societies belonging to Hindu, Roman, Anglo Saxon, Hebrew and Germanic Communities. Most of these communities are founded on patriarchal pattern wherein the eldest male parent called the pater familias dominated the entire family including all its male and female members, children and slaves as


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also the property. The word of the pater familias was law to them which (In v were supposed to follow. There were, however, some communities which followed matriarchal pattern in which the eldest female of the family was the central authority to manage all the affairs of the family. It is because of his kinship, namely blood relationship with the family that a person acquired a status. Thus, the law of person was to be determined on the basis of his status. Thus, slave, servant, ward, wife, citizen etc., all symbolised -statutes which the law recognised in the interest of the community.

Movement of. Progressive Societies from Status to Contract— According to Maine with the march of time the institution of pater familias withered away and now rights and obligations were dependent on individual contracts and free negotiations between persons. This led to disintegration of the family system and emergence of contractual relations between individuals. Now the individual could take final decisions himself without depending on headman of the family. The Benthamite doctrine of individual's freedom freed slaves from the bondage of their master and now they could have rights and obligations like any other individual. These changes in the pattern of societies led Maine to conclude that 'movement of progressive societies has hitherto been from status to contract.

Reversal of Trend from Contract to Status- It is submitted that with the advance of time and due to the impact of industrialization, hunger, ignorance, disease etc., have cropped up giving rise to inequality between individuals and groups within the society. Consequently, there came a counter-current of reversal from contract to status in the time of Maine himself. It was realised that idea of freedom of contract between powerful capitalist and starving labour class led to catastrophic consequences resulting into exploitation of workers. This resulted into the emergence of Trade Unionism. The workers now formed their associations and instead of individual freedom of bargaining their wages and facilities, their trade unions had the power of group-bargaining. That apart, several labour welfare legislations such as the Minimum Wages Act, Factories' Act, Trade Unions Act, Workmen's Compensation Act, Employees Liability


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Act, Industrial Disputes Act, Bonus Act etc. were enacted to improve the service conditions and bargaining capacity of workers in order to free them from the unscrupulous industrialists and capitalist.

Q.26 The aim of Social Engineering is to build an efficient structure of the society as far as possible which involves the balancing of competing interests.” Pound. Discuss.

Ans. Roscoe Pound's Theory of Social Engineering—The main propositions of Pound's theory are—

1. Pound Concentrates on the Functional Aspect of Law—Pound concentrates more on the functional aspect of law, that is why some writers name his approach as 'functional school', For Pound, the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go round as far as possible with the least friction and waste. According to him, the end of law should be to satisfy a maximum of wants with a minimum of friction.

1. Pound Concentrates on the Functional Aspect of Law—Pound concentrates more on the functional aspect of law, that is why some writers name his approach as 'functional school', For Pound, the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go round as far as possible with the least friction and waste. According to him, the end of law should be to satisfy a maximum of wants with a minimum of friction.

2. The Task of Law is Social Engineering—Pound's main thesis is that the task "of law is 'social engineering', He says—"For the purpose of understanding the law of today, I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy social wants, the claims and demands involved in the existence of civilized society—by giving effect to as much as we may with least sacrifice, so far as such wants may be satisfied or such claims


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given effect to by an ordering of human conduct through politically organized Society.

3. 'Social Engineering' Means a Balance Between the Competing Interesting Society—By 'social engineering' Pound means a balance between the competing interests in society, He entrusts the jurist with a commission. He lays down a method which a jurist should follow for 'social engineering'. He should 'study the actual social effects of legal institution and legal doctrines, study the means of making legal rules effective, sociological study in preparation of law-making, study of judicial method, a sociological legal history and the importance of reasonable and just solutions of individual cases.' He himself enumerates the various interests which are to be protected by the law. He classifies them under three heads—Private interests, Public interest and Social interests.

3. Private, Public and Social Interests —Pound says that interests are the chief subject-matter of law. He divides interests mainly into three groups — Public, Social and Private. The main public interest according to him are the interest of the state as a juristic person and secondly interest of the state as the guardian of social interest. These interests are protected by law.

Jural Postulate-I – In civilized society men must be able to assume that other will commit no intentional aggressions upon them.

Jura! Postulate-II — In civilized society men must be able to assume that they may control for beneficial purposes what they have discovered and appropriated to their own use, what they have created by their own labour, and what they have acquired under the existing social and economic orderly.

Jural Postulate-III — In civilized society men must be able to assume-that those with whom they deal in the general intercourse of society will act in good fait.

Q.27. Write an essay on the realist School of Jurisprudence.

OR


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The prophecies of what the court will do infact and nothing more precious are what I mean by law. Explain this statement of Justice Holmes.

Ans. Realist School of Jurisprudence—The realist movement is a part of the sociological approach and is, sometimes, called the 'left wing of the functional school'. It casts light on the realities. The founder of this school is J. Holmes and the supporters are Prof. Gray, Liewellyn and Frank. It differs from the sociological school in respect of the fact that it is little concerned with the ends of law. It concentrates on a scientific observation of law in its making and working. This movement is named as 'realist' because this approach studies law as it 'is* in actual working and its effects.

The exponents of realist school reject the traditional definition of law that it is a body of rules and principles that courts enforce. They avoid any dogmatic formulation and concentrate on the decisions given by law courts. The decisions are not based only on formal law but also oil the 'human factor' in the judge and the lawyer. According to them, law is only an official action, and therefore, the forces that influence a judge in reaching a decision (including bribery and corruption) are within the field of Study.

Factors Responsible for Realist Approach — Realist approach, firstly, reflects the influence of the pragmatic philosophy which had its origin in America. Second and the most important factor which seems to have led to this thought is the organisation of judiciary in that country. The American Supreme Court is the final authority to intrepret the law and to judge its validity. The judges of the lower courts are elected, therefore, they are influenced by extraneous considerations in deciding cases and sometimes do not enjoy the confidence of the people. The existence of separate State jurisdiction has caused multiplicity of law and decisions. These all made some jurists to concentrate more on courts to know the actual working of law and to study, they were called Realist.


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Q.28. When does custom become law? Point out the views of Austin in this regard critically. What do you understand by the term Source of Law and what are its kinds.? Discuss the importance of custom as a Source of Law.

Ans. Meaning of Source of Law- In the ordinary sense ‘Source of Law’ means the origin, beginning or the spring rise to the stream of the rule of law. Actually the term ‘source of law’ is used in different senses-

According to Austin, “The source of law is the authority from which the law derives its force or validity”. In this sense, the source of law is the Sovereign or State.

According to some Jurists, "The term signifies the matter of which the law is composed, e.g., the statute law, case-law, customary law, books of jurists, etc."

According to some Jurists, the term denotes the means which gave birth to those rules which subsequently acquire the force of law, e.g., the will of the people, reason or sentiments.

Essentials of a Custom—According to Btaekstone a custom to be recognised as law must satisfy the following essentials—

1. Antiquity — A custom to be recognised as law must be proved be in existence from time immemorial, time whereof the memory of m rennet not to the contrary. This is the rule of the English law. There this legal memory presumed to be going back to a fixed’ time, t arbitrary time limit, that is, the year 1189, the first year of the reign Richard 1, has been fixed at which the custom must be proved to be existence. By a fiction of law, human memory is made to extend nor about 800 years. But the presumption of law is that the customs which are old and whose time of origin cannot be ascertained must have started before the year 1189. However, if it could be shown that a custom


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came into existence at any time later than 1189 the presumption to antiquity shall be defeated.

Indian Rule—According to Manu, the great Hindu Law-giver, "Immemorial custom is transcendental law." The law in India, at present is that antiquity is essential for the recognition of a custom, but there is no such fixed period for which it must have been in existence as it is in the English Law.

2. Continuity—A custom must have been practised continuously. In England, the custom during the period from 1189 must have been enjoyed continuously without any interruption. If a custom has been disturbed for a considerable time., a presumption arises against it. However, Blackstone has drawn a distinction between the interruption of the 'right' and the interruption of the mere 'possession'. It is the discontinuance of the 'right', for howsoever small a tune, that ends the custom. It means that if possession for some time is disturbed, but the claim to enjoy the custom is not abandoned, the custom continues.

3. Peaceable Enjoyment—The third essential of a valid custom is that it must have been enjoyed peaceably. If a custom is in dispute for a long time in a law court, or otherwise, it negatives the presumption that it originated" by consent as most of the customs naturally might have originated/

4. Obligatory Force—A custom, to be valid, must have an obligatory force. It must have been supported by the general public opinion and enjoyed as a matter of right. If practice was maintained by stealth or, by something of that sort, it cannot become a custom.

5. Certaiaty—A custom, to be valid, must be certain. A custom which is vague or indefinite cannot be recognised. It is more a rule of evidence than anything else. The court must be satisfied by a clear proof that custoni exists as a matter of fact, or as a legal presumption of fact.


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6. Consistency—Custom, to be valid, must not come into conflict with-tne other established customs. There must be consistency among the customs. It is, therefore, that one custom cannot be set in opposition to the other custom.

7. lieasonableness—A custom, to be valid, must be reasonable. Prof. Allen says that the rule regarding reasonableness is 'not that a custom will be admitted, if reasonable, but that it will be admitted unless it is unreasonable.' The courts are not 'at liberty to disregard a custom whenever they are not satisfied as to its absolute rectitude and wisdom. or whenever they think that a better rule could be formulated in the exercise of their own judgment otherwise a custom will lose much of its force and sanctity.' For declaring a custom inapplicable on the ground of unreasonablness it will have to be shown that it is obviously opposed to reason and right.

8. Conformity with the Statute Law—A custom, to be valid, must Be in conformity with statute law. It is a positive rule in most of the legal (systems that a statute can abrogate a custom. Although according to the Historical school, a custom is superior to statute and it can supersede a statute, this view has nowhere been recognised in practice. The English rule is that a custom will not be recognised if it is in conflict with some fundamental principle of the common law.

When does a Custom Become Law?—There are two opposite views about the question as to when does a custom become law? The one view is of the Analytical school and the other is that of the Historical' school. According to Austin, the founder of Analytical school, "a custom becomes law only when it is recognised by the sovereign."

Austin says that custom is a source of law and it itself i§ not law. His definition of law that it is command of the sovereign does not allow the customs to be included in law. A custom is not 'positive law* unless it is so declared by the court, or, in other words, it is not law until it has received the judicial


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recognition, or it has been embodied in some statute. Its recognition by the court or its incorporation in the statute puts upon it the implied or the express seal of the sovereign and it becomes law.

Historical View- According to Savigny, the founder of Historical school, custom is per se law, i.e., custom is law in itself and derives its binding force from its own nature custom possesses the force of law before it is recognised and applied by the courts of the State. A custom carries its justification in itself. He very existence of custom indicates that it must have arisen due to the strong need and by the approval of the people.

Q.29 What do you understand by the doctrine of precedent? Explain authoritative and persuasive precedent. Discuss the merits and demerits of precedent as a source of law.

Ans.. Meaning off Precedent—A precedent is a statement of law found in the decision of a superior court, which decision has to be followed by that court and by courts inferior to it.' A decision is cited as a precedent to be followed in other cases if it is based on some principle of law. From the facts of a case certain facts alone are picked out as relevant by the judge, and on these facts the judge based his conclusion. The facts and the conclusion can be stated in the form of a legal proposition and it is this principle of the decision or ratio decide as it is called, that is regarded as binding in other similar cases. For Example—Your dog bites postman delivering letters at your house and I he postman brings an action against you. From the facts proved, the judge takes as relevant some facts and states a legalproposition based on these facts-“A person is liable for injury caused by a domestic animal which he knows is ferocious, if the injury is caused to a person lawfully entering the premises.

Different jurists have defined precedent in different ways-

According to Salmond- Precedents ‘are’ Judicial Decisions followed in subsequent cases.


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According to Gray-‘A precedent covers everything said or done, which furnishes a rule for subsequent practice.

According to Keeton- A judicial precedent is a judicial decision to which authority has in some measure been attached.

Kinds of Precedent – According to the nature of precedents, they can be divided into two kinds.

Original Precedent- Original precedents are those which merely reiterate and apply an already existing rule of law.

Declaratory Precedent- Declaratory precedent are those which merely reiterate and apply an already existing rule of law.

Precedents are further divisible fin two classes

Persuasive Precedent— A persuasive precedent is one which the Judges are under no obligation to follow, but which they will take into 'consideration and to which they attach such weight as it seems to them to deserve. Decisions of a court of co-ordinate jurisdiction are only persuasive.

Authoritative precedents are further divided into two kinds—

Lalbsolute, and (ii) conditional.

(i) Absolute Authoritative Precedent— In case of absolute precedent the decision is absolutely binding and must be followed without question, however unreasonable or erroneous it may be considered to be.

(ii) Conditional Authoritative Precedent— A precedent possesses merely conditional authority, where the courts possess a certain limited.

(b) 'Ratio Decided' —It means reasons for the decision. If a question comes before the Judge which is not covered by any authority he will have to decide it upon principle, that is to say, he has to formulate the rule for the occasion and


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decide the case applying that rule to the facts of the case. The rule that he formulates in deciding the case will be a law for all subsequent like cases. Thus, whatever rule a Judge enunciates just for the purpose of deciding the case before him, that is to say, the rule declared and applied by the Judge in deciding a case before him, is a valid and authoritative act on his part. Hence, to extract the law is a precedent.

One has to study the/material facts of the case, the decision thereon, the rules and principles enunciated by the Judge in the course of such decision, and then pull out that rule or principle which is actually made use of by the Judge in deciding the dispute in the case. The legal principle formulated for, and actually applied in, deciding the problem in the case is called 'Ratio decidendi'. It is the legal principle which forms the basis of adjudication of the points in issue.

This ratio decided has to be determined by the judge and he has to apply it to the facts of a case which he is going to decide. This provides an opportunity to the judge to mould the law according to changed circumstances

Obiter Dicta—It means things said by the way. It is the statement of law which is not strictly relevant to the facts of the case and goes beyond the requirements of the points in issue. Obiter dicta are of little legal authority. At best they amount only to persuasive precedent. They do not even bind the lips that utter them. However the obiter dicta pronounced by highest tribunals of justice are at times binding like the obiter dicta of Supreme Court of India conclusively binding on all inferior courts.

Merits of Precedent- 1. Precedents enable the judges to re-shape law according to authority of the precedent acts as an effective check on the arbitrary discretion of the judges. Besides, precedents being based on vast experience and maturity of the judges, provide useful guidance for the deciding-judge in disposing of cases.


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Precedent being the result of concrete problems which actually arose in the case, gives rise to practical and perfect law whereas the law enacted by legislature is mostly based on assumptions and imagination and. therefore, it is an imperfect and abstract law.

The law contained in the precedent is certain and easy to understand. Once a case is decided people know it with certainty as to what would be ruling in similar-cases which arise in future. Therefore, precedent/helps people to know the intricate principles of law to a considerable extent.

Citing of precedent and case-law helps the members of the Bar to substantiate their argument without waste of unnecessary time and energy.

5. Precedents provide flexibility to the law to adapt itself to new situations and social conditions. The case-law relating to right to property in India form Sankari Prasad to Minerva Mills cases and changes in judicial trend in this regard, sufficiently illustrates this point. Demerits of Precedents

1. According to Austin, precedents are published in law-reports which are in such a large number that it becomes practically difficult to find out a particular case from such a voluminous l£gal literature. This is why it has been said that case-law is a gold in the mine while statute law is a coin ready for immediate use.

2. According to Bentham, precedent is not a law at all because it lacks binding force of the State. Austin, however, did not subscribe to this view because in his opinion judges are the agents of the sovereign and therefore, the law pronounced by them is as good a law as the law promulgated by the State.

3. According to Fedrick Pollock, the law based on case-law is incomplete because the Judge takes into consideration only those facts which ace Involved in the case before him.


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4: Precedents overlook the fundamental rule of natural justice that law must be known before it is actually enforced. Needless to say that law is always ex pos facto. It is only after the parties have gone to a court and the court decides the matter, that principle of law is evolved.

5. At times erroneous decisions of superior courts create practical problems for the subordinate judges as they are bound to follow these decisions however wrong or defective.

6. It is generally alleged that precedents are an outcome of hasty decisions of the Court.

Q.30 “Neither animus nor corpus is sufficient by itself. Possession begins with their union and lasts only until one or both of them disappear." Discuss. Or

Define Possession and explain its essentials.

Ans. Definition of 'Possession' —Different jurists have defined possession in different ways—

1. According to Salmond, "the possession of a material object is the continuing exercise of a claim to the exclusive use of it."

Thus, possession involves two things : (i) claim of exclusive user, und (ii) conscious or actual exercise of this claim i.e., physical control possessed, when it stands with respect to other persons in such a position that the possessor, having a reasonable confidence that his claim to it will be respected, is content to leave where it is."

2. 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. The element of animus or desire to possess must have the following features —


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(i) The animus or desire to possess need not necessarily be rightful, it may even be consciously wrongful. A thief has a possession of stolen things no less real than the true owner of those things.

(ii) The possessor must have exclusive claim over the thing in his possession. That is, he must intend to exclude others from use and enjoyment of that thing. The exclusion, however, need not be absolute.

(iii) The animus need not amount to a claim or an intention to use the thing as owner. Thus, in case of a pledge, the pledgee, has the possession of the thing pledged although he only intends to retain it in custody, as a security to ensure repayment, of his debt. '

(iv) The animus need not be necessarily that of the possessor himself, &&, a servant, agent, trustee or a bailee do not keep things in possession for their own use but they hold them for some other person.

(v) The animus may not be specific, but it may be merely general. For Example—a person who has caught fishes in his net has possession over all of them although he does not know their exact number.

In the legal sense, possession is used as a relative term. The law is generally not concerned with the question as to who has the best title, but it is concerned as to which of the parties before it has a better title. For Example—In Bridges Vs. Hawkesworth, 1851 it was decided by the court that the bundle of notes found on the floor of a shop passed into the possession of the finder rather than the shopkeeper. The decision has been supported by Pollock and Salmond. Pollock hoick that since the shop-keeper (defendant) has no corpus in the bundle of notes, he has no de facto control over it. Salmond has taken the view that the shopkeeper has no animus for possession.


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Conclusion—It may, therefore, be rightly concluded that for a legal possession neither animus nor corpus is sufficient by itself. Possession begins with their union and lasts only when one or both of them disappear,

Q.31. Discuss the various kinds of Possession.

Ans. Kinds of Possession—The possession may be divided into following kinds —

(1) Immediate and Mediate—If the relation between the possessor and the thing possessed is a direct one, it is called immediate or direct possession.

Corporeal and Incorporeal- Corporeal possession is the on of a material object and incorporeal possession is the session of other than a material object I have corporeal possession of my car and book, but I have incorporeal of trade mark, a patent and a copyright. Corporeal possession is the possession of a thing and incorporeal possession is the possession of a thing or the enjoyment of a right by any person either personally or though another who retains the thing or exercises the right in his name.

3. Representative Possession – Representative possession is that in which the owner has possession of a thing though an agent or a servant. The real possession is that the actual owner and not that of the Pocket of servant to buy P00116' of the servant is not of representative possession. The essence of possession lies in the fact that the master has the anitaus to eaere.se control over the thing in the hands of his servant or ageat.

4. Concurrent Possession -In the case of concurrent possession, the possession of a thing may be in the hands of two or more persons at the same time. Claims which are not adverse and which are not mutually destructive, admit of concurrent realisation. In the case of concurrent possession, mediate and immediate possession may exist in respect of the same thing. The possession of my servant over a thing of mine may be immediate but my mediate possession


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is also there. Two or more persons may possess the same thing jointly. Corporeal or incorporeal possession may exist with regard to the same material thing. I may possess a piece of land and another person may have the right of way on the same land.

5. Derivative Possession—In the case of derivative possession, the holder of the thing combines in himself both the physical and mental elements which constitute legal possession. A creditor has a derivative possession of the thing pledged to him. Likewise, a watchmaker has a derivative possession of a watch entrusted to him for repairs so long as the repair charges are not paid. A bailee has a derivative possession of the goods bailed to him. In these cases, the title of the holder of the thing is derived from the person who entrusts the thing. It is pointed out that if the owner of the watch takes-away the watch forcibly without making the payment, he is guilty of theft.

6. Constructive Possession —Constructive possession is not actual possession. It is a possession in law and not in fact. The goods sold by me are tying in a warehouse and if I hand over the key of the warehouse to the purchaser, the latter comes to have the constructive possession of the thing. If I hand over the key of a building to a tenant, I give constructive possession of the building to the tenant. The handing over of the key shows that possession has changed in law although not in fact.

7. Adverse Possession—The possession of property by a person is adverse to every other person having or claiming to have a right to the possession of that property by virtue of a different title. To be adverse, possession must be an invasion of the ownership of another. It should be actual, exclusive and adequate in continuity and publicity. The acts of possession must be exercised without violence, without stealth and without permission. When these conditions are present, possession is considered to be adverse. The conception of adverse possession is very! important in law because when it is had for the


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period laid down by law, it extinguishes the title of the true owner and creates a title in the adverse possessor.

8. Duplicate/Possession—Possession is a right to exclusive use and it is not possible for two persons to have independent and adverse claim 10 possession of the same thing at the same time. The possession of a thing by one person is compatible with its possession by another only when the two claims are not mutually adverse. Claims to possession in which admit of concurrent realisation give rise to duplicate possession. The possession of co-owners case of duplicate possession and is usually called compossession.

Q, 32 (a) What is Ownership? Discuss the rights that are attached with the Ownership, Can an ownership be established on incorporeal things ? Or

Ans. Definitions of Ownership — Different jurists have defined ownership in different ways. All of them, however accept that the right of ownership is most complete or supreme right that can be exercised over anything. )

1. According to Hibbert, "Ownership is a bundle of rights." It can

be exercised on a corporeal thing i.e., on, animal, chair or house etc. It consists of four kinds of rights i.e.,

(i) right to use of a thing,

(ii) right to exclude others from using the thing,

(iii) right to dispose of the thing; and

(iv) right to destroy it.

2. According to Austin, "ownership is a right over a determinate thing indefinite in the point of user, unrestricted in point of disposition and unlimited in point of


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duration. According to this definition, there are following three elements of ownership.

1. Indefiniteness in Point of User— It is one of the incidents of ownership that the thing owned can be used in variety of ways cannot be defined. The owner of a piece of land may use for growing crops, or for the construction of a building or for making it a park. However there ate certain limitations on the owner's power. They can be imposed by law or can be created by an agreement between the owner and a third person. Law obliges that an owner should not use his property in such a way as to injure the rights of other persons : Sic utere too ut alienun non kadus (use your property in such a way as not to injure your neighbour). Thus, in all the legal systems unrestricted user is qualified by the law of nuisance. The rights may be restricted by agreement also. For Example— an owner can create easement over his property by agreement and his rights of ownership shall be restricted by the easement. Apart from these restrictions state has special power to restrict its use at any time under its police power.

2. Unrestricted in Point of Disposal—The owner has unrestricted power, to dispose of the property. There are no limitations upon this power. This is considered to be a very important incident of ownership. Ancient Hindu jurists also considered unrestricted power of disposal as a very important incident of ownership. However, in almost all the societies some restrictions have been put upon the power of disposal by law. These restrictions are as a matter of policy or they are put to check fraud.

(b) Difference Between Possession and Ownership —-According to Salmond there is a difference between the two on the following grounds-

1. Firstly, there is a difference on the basis of fact and right. "Possession is in fact what ownership is in right. Possession is the de face exercise of a claim; ownership is the de jure recognition of one. A thing is owned by me when my claim to it is maintained by the will of the State as expressed in the law; it is


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possessed by me, when my claim to it is maintained by my own self-assertive will, Ownership is the guarantee of the law; possession is the guarantee of the facts. It is well to have both forms of security if possible, and indeed they normally co-exist."

2. Secondly, the right of ownership is superior to possession. The right of ownership is superior and comprehensive and it includes the right of possession. Generally ownership and possession coincide and their separation is due to special reasons. They are very akin to each other and are of the same species. Ownership tends to realise itself intopossession and possession tends to become ownership. The one cannot remain divorced from the other for a very long time. Possession for a long time ripens into ownership and ownership without possession for a long time is destroyed.

3. Thirdly, possession and ownership differ in their mode of acquisition also. The transfer of possession is comparatively easier and less technical but the transfer of ownership in most cases involves a technical process of convincing. The rights of possession and ownership are substantially the same. 'Within the limits prescribed by policy, the owner is allowed to exercise his natural power over the subject — matter 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 i.e., to true owner.

(c) Possession is Nine Points of Ownership — Possession and ownership are closely related with each other. Usually they co-exist and concur. Even if they do not concur in the same person, they do invariably (end to coincide. Ownership always tries to realise itself in possession .mil conversely, possession tries to justify itself in ownership.

According to Ihering, "Possession is the objective realisation of ownership." It is in fact what ownership is in right. Possession is the de Jure exercise of a


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claim, and ownership is the de facto recognition of one. Ownership is the guarantee of the law; possession is the guarantee of I acts. Possession is the de facto counterpart of ownership, possession is evidence of ownership, the possessor of a thing is presumed to be the owner of it and may put all other claimants to proof of their title.

The first possession of a thing which as yet belongs to no one is a flood title of right. For Example—A chimany sweeper, who finds a ring, may not be the owner, but his possessory right allows him to recover the value of the stone set in the ring from a jeweller who refused to return it after it was handed to him for examination. Long possession creates title even to property which originally belonged to another.

(d) Modes of Acquiring Possession—There are three modes of Acquisition of possession—

1. Taking—Taking implies an act exclusively on the part of the person who takes the possession. Taking is 'original or 'derivative. The 'original' taking place when the object has no previous owner as re nullius (when a man catches a wild animal). When the possession of a thing is taken which has already a previous owner it is 'derivative taking. Here 'taking means acquiring possession without the consent of that previous owner or possessor. This taking (derivative) may be rightful or .wrongful. "Where an innkeeper seizes the goods of his guest, who has failed to pay his bill, there is an acquisition of possession against the will of the previous possessor, but it is a rightful taking of possession.... Where a thief steals a watch, this is still an acquisition of possession against the will of the true owner, but it is wrongful, i.e., not in pursuance of legal right."

3. By Operation of Law—The acquisition of possession takes place when by the operation of law goods are removed from the possession d me person to the other. For Example—when a person dies, the things in his possession pass to his personal representative.


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Q.33 Rights and duties are correlative. Discuss. Or

Distinguish between claims, Liberties, Powers and Immunities. Also explain the correlative of each.

Ans. Legal Right in Wider Sense—According to Salmond, in its wider sense right includes other legally recognized interests without considering whether they have a corresponding legal duty or not. He said that the term legal right in its generic sense means 'any advantage or benefit which is in any manner conferred upon a person .by a rule of law.' In this sense, right is of four distinct kinds—1. Right, 2. Liberties, 3. Power, and 4. Immunities. Each of these Has its correlative, namely—1. Duties, 2. No rights, 3. Subjections (or Liabilities) and 4. Disabilities.

This analysis of Salmond was carried further by Hohfeld. He anyalysed it with greater accuracy. This has been again developed by many other jurists. Kocourek pointed out the defect of Hohfeld's theory. In his work he presents an analysis with almost a mathematical accuracy. This distinction is not of academic interest only, but it has stated to take practical shape also. It has been adopted by the 'American Restatement 3f the Law. In a tabular form it is as follows—

(The brackets indicate correlatives and the lines opposite).

The relation of each term with its correlative is as under —

Claim Liberty (Right) (or rivilege) Duty No Claim

Power Immunity Liability Disability


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Claim and Duly—Salmond has used the word 'right' at the place of claim. Claim indicates what one can force another to do, or to refrain from doing. The person who can so force is said to have a claim and the person who can be made to act or forbear is said to have a duty.

Liberty and No Claim—Liberty means that what one can do for himself without being prevented by the law. For Example-One is at liberty to walk in his field. In such case there is no precise relationship with any other person, but if any one interferes, the law protects the person who has the liberty.

The distinguishing point between liberty and claim or right is that one can exercise his liberty without affecting others, whereas in claim or right there is always a corresponding duty impo.snl on some other person or persons. The opposite of liberty is duly. Therefore, according to the principle, the correlative of liberty should be that which is the opposite of the claim. For want of any accurate term 'no claim has been used.

Liberty (Privilege) and No Right—Liberty includes those acts which are generally lawful for all. Privilege means those acts which are generally unlawful, but in certain circumstances they are permitted for a distinct or a limited class of persons, such as privileges of the Parliament. If harm is caused to a person by an act which is a privilege, the person suffering the harm has no claim against the doer of the act. Therefore, 'no-claim' is the correlative of privilege.

Power and Liability—Power is generally defined as an 'ability on the part of a person to produce a change in a given relation by doing or not doing a given act.' The making of will or alienating property are examples of such ability.

Salmond used the term 'subjection' for it for the purpose of avoiding confusion, because in law the term liability' has two meanings also. 'Liability gives the sense of being affected by an act of a person who has 'power' to do it.


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Hohfeld does not confine the term liability' only to loss or disadvantage. He says that it includes a chance of being benefited also. For Example— If a person has a 'power' to make a will his children may be benefited (if he makes a will in their favour),

Immunity and Disability — Immunity is defined as 'a freedom on the part of one person against having a given legal relation altered by a given act or commission on the part of another person.' if is opposite of liability. So it is also said that it .is 4an exemption from having given legal relation changed by another,' The correlative of 'immunity is 'disability'. Disability means the absence of power, Immunity is the opposite of liability and disability is the opposite of power.

Q. 34 Define Legal Person and give its kinds with illustrations. (b) Discuss the Legal status of (i) Animal, (II) Dead Person, (iii) Unborn Person and (iv) Idol.

Ans. ' (a) Definition of 'Legal Person' — Different jurists have defined 'legal persons' in different ways —

According to Gray, "a person is an entity to which rights and duties may be attributed."

According to Salmond, "A person is, any being to whom the law regards as capable of rights or duties." Any being that is so capable, is a person whether human being or not and nothing that is not so capable is a person even though he be a man.

According to Paton, "Legal personality is a medium through which some such units are created in whom rights can be vesled."

Personality is Wider and Vaguer Term than Humanity—According to Salmond "Personality is wider and vaguer term than humanity. In law there may be men who are not persons and persons who are not men." In ordinary parlance person


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means living men and women. In contrast to this a legal person is an artificial creation of law. All human beings are not person in the eye of law. There are human beings who are not persons. For Example—Slaves; conversely, there may be persons who are not human beings, e.g., a Corporation, Institution, Idol etc. Likewise, infants, saints and lunatics are awarded the status of restricted personality. Personality, therefore, has a wider signification than humanity.

Kinds of Legal Persons—According to Salmoiid a person may be divided into two kinds— (i) Natural persons and (ii) Legal persons.

(i) Natural Person—A natural person is a living human being e.g,, men, women and impotents. Natural persons are real human beings to whom the law grants personality on the basis of reality.

2, Legal Person — Legal persons are artificial or imaginary beings to whom law attributes personality by way of fiction where it does not exist in fact e.g., Corporation, Institution, University, Club etc. They are capable of rights and duties like natural persons.

Kinds of Legal Person—A legal person may be divided into three kinds — 1. Corporation, 2. Institution and 3. Fund or Estate.

Corporation —It is a group of co-existing or series of successive persons which by a legal fiction is regarded as a real person. Corporation is either a corporation aggregate or a corporation sole. A municipal corporation is an example of corporation aggregate, while the sovereign is a corporation sole.

Institution — In sortie cases the corpus or object personified is not a group of co-existing or series of successive persons but the institution itself, e.g., a college, library, mosque, church, etc.

Fund or Estate —In this case the corpus is sonic final or estate reserved to particular uses. The property of a dead mini or estate of an insolvent, and a fund for charity are its example. Under the Roman- Law the estate of a deceased


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person was regarded as having a legal personality by the notion of hereditas jacens till it was vested legal heirs. In the same way the German stiftung, which was an unincorporated fund for charitable purposes, was vested with rights and duties and was itself personified although the property was vested in nobody else.

Kinds of Corporation — Corporations are of two kinds —

(i) Corporation aggregate and (ii) Corporation sole.

(i) Corporation Aggregate—A corporation aggregate is a group of co-existing persons. "It is a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common, and of expressing a variety of political rights, more or less extensive, according to the design of its institution, or the powers conferred upon it either at the time of its creation or at any subsequent period of its existence." A joint stock company, a municipal corporation, a railway corporation, a chartered university, etc., are examples of a corporation aggregate.

(ii) Corporation Sole—A corporation sole is a series of successive persons. It is a body politic having perpetual succession, constituted in a single person, who, in right of some office or function, has a capacity to take, purchase, hold and demise land and hereditaments and now also to take and hold personal property, to him and his successors in such office for ever, the succession being perpetual, but not always uninterruptedly continuous; that is, there may be, and mostly are, periods in the duration of a corporation sole, occurring irregularly, in which there is a vacancy, or no one in existence in whom the corporation resides and is visibly represented. Ecclesiastical Corporation (Bishop), Crown, the Post


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Master General, the Minister of Health, the Minister of Agriculture, etc., are corporations sole.

(b) Legal Status of Animal— Law does not recognise beasts or lower animals as persons because they are merely things and have no natural or legal rights. Salmond regards them as merely objects of legal rights and duties, but never the subjects of them. That is why their interests are not reconised by law. Though, legal history reveals that archaic codes contained provisions regarding punishment to animals if they were found guilty of homicide. Even, under the modern law the trespassing beast may be distained damage feasant, and detained until its owner or someone else interested in the beast pays compensation to the person wronged, Sutherland refers to certain instances when beasts were punished; If an ox gore a man or a woman to death, then he was stoned and his flesh was not eaten. In Germany, a cock was charged and accused of contumacious crowing. It was brought in the witness box and tried But the Counsel failed to prove the innocence of his feathered client hence it was killed. In ancient Greek law also there are evidences of animals and tree being punished like human beings.

(ii) Legal Status of Dead Man- According to Salmond, the personality to human being may be said to commence with his birth and cease with his death. Therefore, dead men are no longer persons in the eyes of the law. They cease to have rights since they cease to have any interests nor do they have any duties. A dead man's corpse is not 'property' in the eyes of law. It cannot be disposed of by an instrument. Earlier, it was held that a person cannot, during his life-time, make a will disposing of any part or organ of his body but now-a-days it is perfectly legal to donate eyes or any part of one's body for the progress of medical science and in the interest of humanity.

(iii) Legal Status of Unborn Person —A child in mother's womb is by fiction treated as already born and regarded as person for many purposes. Thus, a gift may be made to a child who is still in the mother's womb. The Hindu law of


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partition requires a share to be allotted to a child in mother's womb along with the other living heirs. However, if the child does not take birth alive, his share may be equally partitioned between the surviving heirs. Thus, proprietary rights of an unborn child are fully recognised by Indian law. Under Ss. 312, 313 & 316, LP.C. injury to a child in womb is a punishable offence. Doing something which prevents or obstructs the safe delivery of a child taking birth alive has also been considered as an offence under the criminal law. Thus, a child-^ in mother's womb is entitled for legal protection under the criminal law.

Q.35 Define Corporate Personality. Discuss the various theories of Incorporation.

Ans. Definition of Corporate Personality—A corporation is an artificial person constituted by the personification of a group or a series of individuals. The individuals forming the corpus of (he corporation are called its members. A corporation is either a corporation aggregate or a corporation sole. A corporation has a distinct personality from the personalities of its individual members.' A corporation can sue and be sued in its own name. A corporation is recognised by law as a permanent and continuous legal entity. It is not affected by the death of its members', Unlike natural persons, a corporation can act only through its agents. It does, not die in the way natural persons die. Law provides special procedure for the winding up of a corporatism corporation.

Theories of Corporate Personality—Regarding the nature of corporate personality five main theories are as under —

1. Fiction Theory—This theory is expounded by Saving, Salmond, Kelsen and Holland. Savigny regarded corporation as an exclusive creation of law having no existence apart from its individual members who form the corporate group and whose acts by fiction, are attributed to the corporate entity. As a result of this, change in the membership does not affect the existence of corporation or its unity. Savigny further, pointed out that there is double fiction in case of a


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corporation. By one fiction, the corporation is given a legal entity, by another it is clothed with the will of an individual. Thus, fictitious personality of a corporation has also a will of its own which is different from that of its members.

Realistic Theory—Gierke is the main propounded and Maitland is the supporter of this theory. This theory says that every collective group has a real mind, a real will and a real power of action. A corporation, therefore, has a real existence irrespective of the fact whether it is recognised by the State or not. The corporate will of the corporation finds expression through the acts of its directors, Employees or agents. The existence of a corporation is real and not based on any fiction. It is a psychological reality and not a physical reality. Prof. Gray, however, denies the existence of collective will. He calls it a figment. To quote his own words, "to get rid of the fiction of an attributed will by saying that corporation 4has a real general will is to drive out one fiction by another.

3. Bracket Theory —The Bracket theory is associated with the well-known German jurist Hiring. According to this theory juristic personality is only a symbol to facilitate the working of the corporate bodies. Only the members of the corporation are 'persons' in real sense and a bracket is put around them to indicate that they are to be treated as one single unit when they form themselves into a corporation.

4. Concession Theory—This theory pre-supposes that corporation as a legal person has great importance because it is recognised by the State or the law. According to this theory, 'juristic personality "is a concession granted to corporations by the State. It is entirely at the discretion of the State to recognise or not to recognise a juristic person.

The theory closely resembles the fiction theory as it also believes that there is no juristic personality apart from the creation of law. It is for this reason that the


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supporters of the fiction theory also accept the view-point put-forth by concession theory Notable among them are Savigny, Salmond and Dicey.

5. Purpose Theory—The main exponent of this theory is Brinz, the noted German jurist. The theory is founded on the view that corporations are treated as 'persons' for certain specific purposes. The assumption that only living persons can be the subject-matter of rights and duties, would have deprived imposition of rights and duties on corporations which are non-living entities. It, therefore, became necessary to attribute 'personality' to corporation for the purpose of being capable of having rights and duties.

Q.36 (a) Define the meaning and nature of Liability-Explain its kinds and distinguish between Civil or Criminal and Remedial or Penal Liability.

Ans. (a) Meaning and the Nature of Liability—Law prescribes what one is to do and what one is not to do and what one is entitled to get it done. A breach of these rules is called wrong. When a person has committed a wrong, he is said to be liable. Thus, liability is the condition of the person who has committed a wrong. According to Salmond, "Liability as, the bond of necessity that exists between the wrongdoer and the remedy of the wrong." The task of law is not finished only by laying down rights and duties; it ensures their protection, enforcement and redress also. Therefore, 'liability' is a very important part of the study of law.

Liability has been used to include three things —

(i) To express the position of a person who undertakes to do something.

(ii) To express the condition of a person who has failed in the ' performance of duty; and

(iii) To express the condition of a person who has not failed to perform his contract but has caused damage to the other person.


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According to Mark by, "The word liability is used to describe the conditions of a person who has a duty to perform.

Kinds of Liability —Liability is either "civil" or "criminal", either "remedial" or "penal". Whilst criminal liability is always penal, civil liability may be either remedial or penal.

Difference Between Remedial and Penal Liability—

1. The remedial liability is based on the fundamental principle of

“ubi jus ibi", that is, for every wrong there is a remedy. Wherever law confers a right it also provides a remedy for the infringement of that right. When the remedy is punishment the liability for which it is given, becomes a penal liability.

2. Remedial liability is civil liability, but the converse is not true. Civil liability is sometimes penal also. All criminal liability is penal liability.

Theories of Liability -There are two theories of liabilities -

1. The Theory of Remedial Liability-The sole condition of the existence of remedial liability is the existence of a legal duty binding upon the defendant. These are as under—

(i) Duties of Imperfect Obligation-Such as those attached to a time barred debt, or a debt due from the Crown which can not be enforced at all.

(ii) Duties, Which from Their Nature Cannot be Specifically Enforced-Fulfillment of certain duties is impossible after their corresponding rights have once been breached, e.g., the duty not to defame; and

(iii) Where Specific Enforcement of the Duty is Inadvisable-In some cases specific enforcement is inadvisable, e.g., in breach of the promise for marriage


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2. The Theory Penal Liability-Under penal liability the following points are to be considered—

(i) Conditions of Penal Liability-The general conditions of penal liability are well indicated by the maxim, 'Actus non facit reum nisi mens sit rea, (the fact alone does not amount to guilt, it must be accompanied by a guilty mind). Hence two conditions must be fulfilled before penal liability may be imposed-(a) material condition, and (b) formal condition. The 'material condition' is the doing of some act by the person liable, and the 'formal condition' is the 'mens rea' or guilty mind with which the act is done. The two conditions must co-exist to make a person penally liable1)

I (ii) Incidence of Liability-Normally and naturally the person who commits a wrong is liable for it. Yet both ancient and modern law admits instances of vicarious liability in which one man is held answerable for the act of another. Masters are responsible for the acts of their servants done in the course of their employment. In certain cases of civil liability damages can be recovered from the disposable estate of the deceased wrongdoer.

(iii) Measure of Liablity- In criminal cases, the motive of the offence, the magniture’ of the offence and the character of the offender are taken into account in fixing the punishment. In civil cases of penal redress, only the magnitude of the wrongful act or the amount of the loss inflicted by it is taken into consideration.

(c) Essential Conditions of Penal liability-The maxim ‘actus non facit reum, nisi mens sit rea’ (the act alone does not amount to guilt, it must be accompanied by a guilty mind) is considered to be the condition of penal liability. Thus, there are two conditions of penal liability-1. Act, and 2. Guilty mind, or mens are.

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JANHIT COLLEGE OF LAW 101 JURISPRUDENCE by Mr.Irshad Khan.pdf · applied indiscriminately to all kinds of action whether animate ... that the task of law is "social engineering."