Jurisprudence – I

Lecture No.- 11
Dr. Manoranjan Kumar
Assistant Professor
Department of Law
Chanakya National Law University, Patna
Nyaya Nagar, Mithapur, Patna
Email: manoranjan.cnlu@gmail.com
manoranjankumar@cnlu.ac.in
 Different Kinds of Societies
• Besides Societies Political and Independent there can be the following
kinds of societies
 Societies Political but Subordinate
 Societies in the State of Nature and Independent
 Societies in the State of Nature and Subordinate
• And as discussed above there is also the society formed by the
mutual intercourse of independent political societies.
 Two Marks are Fallible in Some Cases
• Definition of the IPS including the correlative term sovereignty is
fallible test of specific or particular cases.
• The aforesaid definition of the correlative terms IPS and Sovereignty
does not enable us to determine of every society, whether it were
political or natural.
• Likewise, it does not enable us to ascertain about every society
whether it were independent or subordinate.
 Two Marks
• In order that a given society may form a society political and
independent the following two marks must unite:
1. The generality or bulk of its members must be in a habit of obedience to a
common and determinate superior and
2. That common and determinate superior must not be habitually obedient to
a like human superior.
 Limitations of the Positive Mark
• In order that the generality of bulk of a given society can be said to be
in a habit of obedience to a certain superior, the following queries
have to be answered.
• How many of its members or what proportion of its members must render
obedience to a common and determinate superior so that we can say that the
bulk or generality of the society is rendering obedience?
• Similarly, how often or frequently and how long they ought to render
obedience so that one can say that the obedience is habitual?
• Can we answer these questions precisely?
 Positive Mark is a Fallible Test
• In cases of the Independent Society lying at the extreme it is possible
to ascertain the nature of the society as the positive mark can be
easily applied. In other words we can determine whether the positive
mark is present or is not present in those societies which lie at either
of the extremes.
• But in cases of society living in between those two extremes can we
determine, whether the positive mark is present or is not present.
• Positive mark of Independent Political Society and the correlated
term Sovereignty is therefore, a fallible test in some of the cases.
 Negative Mark is Also a Fallible Test
• It would not enable us to determine of every given political society,
whether it were independent or subordinate.
• We cannot ascertain in case of every given political society, whether
its common and determinate superior is in a habit of obedience to
some other determinate human superior or not?
• In some of the cases of given political society it can be possible to
ascertain at what point of time it became independent but in many
instances it cannot enable us. For example, in case of nations
revolting against the colonial powers and then getting de jure
recognition as a sovereign state.
 Austin’s Observations
• The two marks are not the only fallible things.
• In fact Positive law is never free from difficulties like this.
• Expressions such as reasonable time, reasonable notice, reasonable
diligence. The degree of mental aberration which constitutes idiocy or
lunacy.
• These expressions suffer from the same vagueness or indefiniteness
that adheres to the two marks.
Another Mark of the Independent Political
Society
• In order that an independent society may form a society political, it
must not fall short of a number which cannot be fixed with precision,
but which can be said to be considerable.
• A given independent society, whose number is not considerable is
commonly recognised as a society in the state of nature and not a
political society.
• An independent society, whose number may be called inconsiderable
is commonly esteemed natural and not a political society even though
the generality of its members be habitually obedient or submissive to
a certain common superior. For example a family of savages living in a
society that is not part or limb of any other larger society.
 Additional Marks is Equally Problematic
• The lowest possible number which can be regarded as considerable
so that an independent society can be said to be political, cannot be
fixed and stipulated precisely.
• However, one can look at the cases of Independent Political Society
with the minimum number of members and make an inference, what
lowest possible number can be regarded as considerable.
Thank You