K - 101 Jurisprudence by M

JANHIT COLLEGE OF LAW
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.
Or
"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 JurisprudenceJurisprudence 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 JurisprudenceBroadly 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 PunishmentThere 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 TheoryAccording 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 TheoryIn 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 PunishmentOn 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 PunishmentOn 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.
18
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-

19
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 CommandThe law properly so-called is die positive law

depends upon political authoritythe 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. Commandduty are, therefore, correlative
terms. Command further implies not only duty but sanction also.
Command and SanctionSanctiojris 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 CommandA 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 CommandIt 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
20
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 Kelsens Pure Theory of Law. What are the main points of
criticism of this theory?
Ans. Law is a Normative ScienceAccording 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 RelationsThe 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
21
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.
22
Essential Features of Kelsen's TheoryThe 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 TheoryPostulates 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 LawAccording 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
23
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 PersonsTo 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 LawKelsen 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
24
Critically examine the Volksgeist Theory of Savigny and assess his

contribution.
Ans. Historical School of JurisprudenceThe 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 VolksgeistSavingny was of the opinion that law is a

product of the people's lifeit 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
25
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

JuristsAccording 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 LawAlthough 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.
26
5. Law is a Continuous and Unbreakable ProcessTracing 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 LawWhile 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 LawMaine, 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
27
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
28
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 EngineeringThe main propositions

of Pound's theory are
1. Pound Concentrates on the Functional Aspect of LawPound 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 LawPound 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 EngineeringPound'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 societyby giving effect to as much as
we may with least sacrifice, so far as such wants may be satisfied or such claims
29
given effect to by an ordering of human conduct through politically organized

Society.
3. 'Social Engineering' Means a Balance Between the Competing Interesting

SocietyBy '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 headsPrivate 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
30
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 JurisprudenceThe 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.
31
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 CustomAccording 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
32
came into existence at any time later than 1189 the presumption to antiquity
shall be defeated.
Indian RuleAccording 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. ContinuityA 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 EnjoymentThe 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 ForceA 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. CertaiatyA 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.
33
6. ConsistencyCustom, 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. lieasonablenessA 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 LawA 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
34
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 PrecedentA 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 ExampleYour
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.
35
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
36
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 DictaIt 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.
37
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 lgal 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.
38
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 PossidendiThe 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
39
(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
Examplea 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 ExampleIn 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.
40
ConclusionIt 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 PossessionThe possession may be divided into following

kinds
(1) Immediate and MediateIf 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
41
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 PossessionIn 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 PossessionThe 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
42
period laid down by law, it extinguishes the title of the true owner and creates a
title in the adverse possessor.
8. Duplicate/PossessionPossession 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
43
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 DisposalThe 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
44
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
45
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 ExampleA 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 PossessionThere are three modes of Acquisition of

possession
1. TakingTaking 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 LawThe acquisition of possession takes place when by the

operation of law goods are removed from the possession d me person to the
other. For Examplewhen a person dies, the things in his possession pass to his
personal representative.
46
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 SenseAccording 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
kinds1. Right, 2. Liberties, 3. Power, and 4. Immunities. Each of these Has its
correlative, namely1. 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
Claim Liberty Power Immunity

(Right) (or rivilege)

Liability Disability
Duty No Claim
(The brackets indicate correlatives and the lines opposite).
The relation of each term with its correlative is as under

47
Claim and DulySalmond 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 ClaimLiberty 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 RightLiberty 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 LiabilityPower 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.
48
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 HumanityAccording 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
49
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 ExampleSlaves; 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 PersonsAccording to Salmoiid a person may be divided into

two kinds (i) Natural persons and (ii) Legal persons.
(i) Natural PersonA 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 PersonA 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
50
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 AggregateA 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 SoleA 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
51
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
52
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 PersonalityA 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 PersonalityRegarding the nature of corporate

personality five main theories are as under
1. Fiction TheoryThis 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
53
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 TheoryGierke 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 TheoryThis 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
54
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 TheoryThe 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 LiabilityLaw 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.
55
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
56
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.
57

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JANHIT COLLEGE OF LAW

Very Short- Answer Questions

Q.2 What is Imperative Law?

Imperative Law--Imperative law means 'a rule of action imposed

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

Ans. Physical or Scientific Law-Physical law signifies those uniformities and

Q.4 What do you mean by Conventional law?

Q.5 What is Customary law?

Ans. Customary Law - By 'Customary law' is meant those rules and

Q.6 What do you mean by Technical law?

Q.7 What is International Law?

International Law - By International law we mean the aggregate of

Q. 8 What do you mean by Civil law?

Q.9 Explain the contribution of Savigny.

Ans. Contribution of Savigny (1779-1861) - Savigny is considered as (lie

Savigny's theory of Historical School came as a powerful reaction against I Kill

Q. 10 Explain the contribution of Sir Henry Maine.

As to the legal conditions prevailing at the end of the general course of

Q.11 Explain the contribution of Duguit.

Contribution of Duguit (1869-1928) - Duguit's Theory of "Social Solidarity"

He launched a vigorous attack on the myth of state sovereignty. The

Q. 12 Explain the Contribution of Roscoe Pound.

Ans. Contribution of Roscoe Pound - Pound is considered to be the American'

Q.13 Explain the contribution of Kelsen.

Ans. Contribution of Kelsen- Kelsen has made an original, striking, and

Analysis of legal concepts - Kelson's view regarding right, personality,

The theory was much criticised in the beginning as it propounded something

Q.14 Explain the Contribution of Hart.

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

1. Reformulation of Analytical Positivism - His theory, on the one hand builds

2. Primary rules of obligation and secondary rules of recognition-

3. Primary rules give way to secondary rules - ''Both historically and

International Law According to Hart, in the contemporary world international

Explain the "Doctrine of Stare Decisis AflsrT5octrine of Stare Dedsi -

The 'Doctrine of Stare Decisis' is not fully applicable in India. The

Q. 15. Explain vicarious liability under criminal Saw?

Q. 16 What is rule of absolute liability?

Explain the modes of acquisition of possession.

Modes of Acquisition of Possession - There are three modes of acquisition of

Delivery - Delivery means the voluntary relinquishment of in by one person in

By operation of law - Acquisition of Possession also takes place

Jurisprudence is the science of the first principles of civil

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

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

"Jurisprudence is the scientific synthesis of the essential

Examine with reference to Holland and Salmond the definition of

Q.19 Discuss in brief the various definitions of Jurisprudence. What

Ans. Etymological Meaning of Jurisprudence - The English word

Juristic Meaning of Jurisprudence - That history of the concept of law shows

1. According to Ulpian, "Jurisprudence is the knowledge of things human and

Criticism-The above definition is wider and broad enough In cause it includes

Ans. Nature of JurisprudenceJurisprudence in its nature is entirely

There is a difference of opinion about the nature of Jurisprudence. It is called

Scope of JurisprudenceBroadly speaking, Jurisprudence includes all corrects

According to Justice P. B. Mukherjee, "Jurisprudence is both an intellectual and

Jurisprudence involves certain types of investigations into law, an investigation

Utility or Importance of Jurisprudence It is often said that ^jurisprudence

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

Jurisprudence also has its practical applicability. It seeks to rationalise the

Ans. Various Ends of Criminal Justice - The purpose of criminal justice is to

concerning the purpose of punishment. These theories may be broadly divided

Theories of PunishmentThere are five theories of punishment

1. Deterrent Theory According to Salmond, "Punishment is before all things