JURISPRUDENCE

(CODE :201

PERSONALITY

PERSONALITY
Status of Dead Person
Legal Status of Lower Animals
Legal Status of Unborn Person
Legal Persons
CORPORATE PERSONALITY
Corporation: Sole and Aggregate
Theories of Legal (Corporate) Personality
A. Fiction Theory Savigny vis Salmond
B. Concession Theory
C. Bracket Theory (Symbolist Theory) R. Ihering
D. Hohfeld's Theory
E. Realist Theory
F. Purpose Theory
G. Kelson's Theory
Conclusions
Liabilities of Corporations

The term person or personality has been used in different sense for
different purposes. In moral sense, the term has been used to mean the rational sub-
stratum or quality of human being. In anthropological and biological sense, the term
person has been used to mean as one of the species. In law the word person is given
a wide meaning. Salmond says that so far as legal theory is concerned, a person is a
being whom the law regards as capable of bearing rights and duties. Any being that is

so capable is a person whether a human being or not and no being that is not so
capable is not a person, even though is a human being.
Thus law recognises not only the human beings but also the associations as
person. The term personality should be distinguished from humanity. Humanity
means only human beings but personality includes inanimate objects also. Personality
is wider than humanity. Sometimes personality and humanity coincide and sometimes
not. There are human beings who are not persons in the legal sense such as outlaws
and slaves (in early times) and also idiots, minors and lunatics. In the same way there
are legal persons who are not human beings, such as an idol or a corporation. Legal
persons means an entity which is capable of suing or being sued. In the same way
there are legal persons who are not human beings, such as an idol or a corporation.
Broadly speaking the word Person can be divided into two types;
1. Natural Person
2. Legal Person

Natural Person: Natural Persons are those which are born as humans and it is
therefore that the role of legal governance formulated certain code of conduct to
safeguard their rights and for the welfare as well as for the development of the
society.
Legal Person: Legal Person is created by Law only. Without the knowledge
of law, no legal personality can be created. Since it was felt by the dynamic society
that the natural persons by themselves can not take the responsibility of all their
activities therefore it was thought necessary to confer legal personality to not only
living entities rather non living ones also.
Position of Slaves: In the olden times slaves were not treated as person in its
true meaning. They had been given a chance to work and get food but no right to
demand, as they were purely being governed by their masters. It means that the legal
system .does not provide any guidelines in which the old society could recognize the
rights & obligations of the slave. They were treated as movable property. But now the
situation has completely changed.
The position of slaves during the British period was very bad. The one
important saying of Duguit is the only right which a man has to do is to do his

duty, i.e., only obligations for an individual without exercising his abilities, but this
is not so in the present era.
This clearly shows that the slaves were merely the obeying and not the
commanding personality. But after Independence, our constitution makers have
clearly prohibited untouchability, slavery as well as any other form of forced labour
derogatory to the personality and well being of an individual. This is the only way
through which the real objective of equality can be achieved.

Status of Dead Person

Dead person in general have no rights because they have no interests. Their
legal personality is extinguished by death.
It is said that the legal personality is created from birth & ends with death but
sometimes desire of a dead person is protected by law. Basically the dead person gets
three types of rights:
1. Relating to his body (burial)
2. Relating to reputation
3. Related to his estate
The legal system recognises decent burial of dead person.
As far as reputation is concerned, the legal system protects the reputation of the
dead person to some extent. This is mainly true in, cases of defamation-it is said that
even a dead person has a right to safeguard his reputation. Any defamatory statement
which affects the reputation of the family of dead person or the dead person himself is
protected by the legal system under the civil as well as criminal liability. By way of
testamentary succession, a man can after his death, may continue to regulate and
determine the disposition and enjoyment of his property which he owed while living.

Legal Status of Lower Animals

In the present day context, the animals are deemed incapable of possessing
legal rights & duties. They are merely things, often the objects of legal rights and
duties but they are never subjects of them.
For example:-

A beast has no legal personality. Anything done to the animals may be a

wrong to its owner or to the society but it is no wrong to the beast. But the animals
have two rights to be protected.
1. Cruelty to animals is made a criminal offence.
2. A trust for benefit for a particular class of animals as opposed to one for
individual animal is valid and enforceable as a public and charitable one.
Personality of animals.

Legal Status of Unborn Person

Generally an unborn person has no legal standing in the eyes of law. However
it has to be distinguished from the one who is living but not yet born, i.e., a child in
womb of its mother-in utero and an unborn child in the sense of future generations. A
child in the uterus is regarded as a person in law in accordance with the maxim
Nascitures Pro Ham Nato Habetur i.e. One who is to be born is deemed to have been
born. The rights of an unborn person, whether personal or proprietary, are all
contingent on his birth as a living human being.
Right in the inherent property can be given to such a child if the child is born
alive. A posthumous child may inherit, but if he dies in the womb, or still born, his
inheritance fails to take effect and no one can claim through him. But if the child is
born alive even for seconds, his heirs may claim his share through inheritance.

Legal Persons
Legal persons, being the arbitrary creations of the law, may be of as many
kind as the law pleases. The important ones are:-
1) Corporations, Companies, etc.
2) Institutions e.g., a church, a hospital, a university, a library, etc.

3) Registered trade unions, friendly societies, etc.

4) Charitable fund, trust estate (e.g. property of a dead man).
5) The State.

The unincorporated associations e.g. a club, are not a legal person. The rights and
duties of a club are nothing more that the rights and duties of its members. A
partnership or firm is not a legal person, but yet resembles one in certain ways. It can
sue and be sued in its own name, and its property is separate from the property of its
members. But the rights of partnership are in fact the rights of the partners, as are its
liabilities; for the partners, are in general fully liable personally for the debts of the
firm. In contrast, a company or a corporation, is in law a distinct person from its
members; the members are not liable personally for the debts of the company. The
corporation is not a mere aggregate of shareholders (Salolllon v. Salomon & Co.,
1897 A.C.)

CORPORATE PERSONALITY
Corporation: Sole and Aggregate
Corporation are persons incorporated or politique created by the policy of
man. Corporation are of two types, viz. either sole or aggregate of many. A
corporation aggregate is an incorporated group of co-existing persons, and a
corporation sole is an incorporated series of successive persons. The former is that
which has several members at a time, while the latter is that which has only one
member at a time.
Corporations aggregate are by far the more numerous and important.
Examples are a registered company consisting of all the shareholders, and a municipal
corporation, consisting of the inhabitants of the borough.
Corporations sole are found only when the successive holders of some public
office are incorporated so as to constitute a single, permanent, and legal person. The
sovereign or king for example, is said to be a corporation of this kind at common law,
while the post master-general, the solicitor to the Treasury, the Secretary of State, the
Minister, have been endowed by statute with the same nature. In England, the chief
manifestation of
Corporate sole is also seen in the proclamation that is made on the death of
reigning monarch. The proclamation says The king is dead, Long Live the King. It
thus refers to with, to the individual who has died and the Corporation Sole that
survives.

The purposes of the corporation sole are analogous to those of the corporation
aggregate. The object of this device is to avoid the difficulties which are involved in
the transmission from each officer to his successor of the property, liabilities, and
contracts held, incurred or made by him in his official capacity. Such property,
liabilities and contracts are imputed by the law to the permanent corporations which
never dies or retires from office, as compared to individual holders of the office for
the time being.

Theories of Legal (Corporate) Personality

When the law grants legal personality to a group, what is the nature of the
entity which is thus recognised? Most of the theories of legal personality suffer from
the common defect that they have attempted to answer this question. It is impossible
to discover a common essence which unifies all the entities on which legal personality
is conferred. However, the study of theories of legal personality is desirable, because
of the two reasons, firstly philosophical views as to the nature of groups (or
corporations) have been put forward as justification for working rules of flaw. Thus,
the fiction theory was used by some to restrict the power of corporations, and the
realist theory for widening their powers. A second reason for the study of theories
that have been developed to answer the question posed is that many of the purely
legal problems arising in connection with groups and associations cannot be fully
understood without some acquaintance with the nature of the entities which have
enjoyed legal personality.
It is important to note that all theories of legal personality have practical
consequences for life in society. However, with a little skill, one can reach almost any
practical result from any particular theory. Both the fiction and the realist theories
have been uphold for the same purpose and each for opposed ends. Duff suggests that
Saloman v. Salomon & Co. case can be reconciled with any theory, but is authority for
none.

A. Fiction Theory Savigny vis Salmond

Its principal supporters are Savigny and Salmond. As per this theory, Juritsic
persons are also treated as if they are persons i.e. human beings. In other words, the

theory presupposes that only human beings are properly called person of its own.
The Corporation not being a real person, it has no will, no mind, no ability to act. It
can have only so much as the law imputes to it by a fiction as if it were a real person.
Salmond said that a group has 'reality' or existence, but it has no real personality in the
philosophical sense. Savigny said that only a man is capable of rights and the original
concept of personality must coincide with the idea of man.
However, this has led to a great diversity among the different supporters of the
fiction theory as to its precise formulation and the practical results that should be
drawn from it. One deduction drawn from the fictional nature of a corporation was
that, as a corporation has only a fictional will imputed by the law, it could only will
lawful things. By definition, therefore it could not make itself liable for certain kinds
of legal wrongs; certainly it could not commit a crime involving any mental element
(Most rules of law are expressed with human beings in mind and they contain words
like wilfully, intentionally, doing, acting, fraudulently, etc.). Thus some
regarded the doctrine of ultravires as a deduction from the fiction theory, because a
corporation cannot go outside its Memorandum of Association (Constitution or
Charter of the Corporation).
Many of the practical effects of this theory which were at one time accepted
have been avoided by various devices. M. Wolff highlighted some of the defects of
this theory. It has been said to (a) being incompatible with the conception of
subjective right; (b) leading to dangerous political results e.g. confiscation of the
property of these personae factae (Le. persons of fiction); (c) being opposed to the
doctrine of free association.

B. Concession Theory
This is allied to the fiction theory and, in fact, supporters of the one tend also
to support the other.
Its main feature is that it regards the dignity of being a juristic person as
having to be conceded by the State i.e., the law. The identification of 'law' with State
is necessary for this theory, but not for the fiction theory. A logical consequence of
this theory would be that a company incorporated in America would not be
recognised as a legal person unless it is specifically granted concession by Indian law.

It is a product of the era of power of the national State, which superseded the
Holy Roman Empire and in which the supremacy of the State was emphasised. It
follows, therefore, that the concession theory has been used for political purposes to
strengthen the State and to suppress autonomous bodies within it. No such body (i.e.,
corporation) has any claim to recognition as a 'person '. It is a matter of discretion
for the State.
So far as this theory maintains that the law is the only source from which legal
personality may flow, it states a truism. Whatever we may think the law should do,
few would maintain the legal personality can be secured otherwise than by
compliance with the conditions laid down by the legal order. The right to associate
should be distinguished from the question of the grant of legal personality to such
association as they exist. The law may prohibit all associations for any purposes. The
law may give wide liberty to association for lawful ends, but refuse legal personality.
The law may grant liberty of association and grant legal personality to some groups
and not to others. Legal personality may be regarded as a matter of fact to be achieved
by a certain degree of inner unity and organization. Even in this sense it is granted by
the law, since the law lays down the conditions which create legal personality.
But, if we regard this theory as laying down the sociological truth that all
group life (apart from the mere grant of legal personality) is created by the State, then
it is clearly both mischievous and erroneous.

C. Bracket Theory (Symbolist Theory) R. Ihering

This theory, put forward by R. Ihering, rests on the proposition that only
human beings can have interests and rights (and thus the word person is confined to
them), and that a corporation is only a legal device of formula which will enable very
complex jural relations to be understood more easily. Juristic person is but a symbol
to help in effectuating the purpose of the group, it amounts to putting a bracket round
the members in order to treat them as a unit. A, B and C from a company and as it is
inconvenient to refer always to all of them, a bracket is placed around them to which
a name is given but, in order to understand the real position or real state of affairs we
must remove the bracket.

This theory is criticised as a limited company is not just the same thing as its
member and statements about the former are not just abbreviations for statements
about the latter. To say that Smith & Co. Ltd. owes me 100 pounds is not an
abbreviated way of saying that every member of the company owes me a debt.
A court can pierce the veil (i.e., mask) of a corporation only under certain
conditions. Had this theory been accepted, there would have been no need of
generalising the conditions under which a court may lift the veil of corporation.
The theory analyses a corporation out of existence. It is true that most groups
exist to further the interests of individual men, but while we may regard legal
personality as merely a device of the law, it is to deny the law itself when we say that
the legal relations which are fixed and certain are those which are discovered by
removing the brackets of corporation and analysing the relations of all the human
beings involved. New and separate entities are recognised as units in the legal system
by the system itself and such recognition makes possible a clear distinction between
the property, rights and duties of the legal person, on the one hand, and the individual
human beings which may be involved in the make-up of that legal person, on the
other hand.
Further, one can hardly make a contract with a bracket (unless that bracket has
been recognised by the legal system as a legal person). It is socially and economically
false, as well as legally untrue, to say that only individual man can be the bearers of
legal rights. The deductions drawn from this theory have been rejected repeatedly by
courts.

D. Hohfeld's Theory
Hohfeld drew a distinction between human beings and juristic persons. The
latter, he said, are the creation of arbitrary rules of procedure. Only human beings
have claims, duties, powers and liabilities. The 'corporate person; is merely a
procedural form, which is used to work out in a convenient way a mass of jural
relations of a large number of individuals, and to postpone the detailed working out
of these relations among the individuals inter se for a later and more appropriate
occasion. The theory closely resembles the bracket theory.

E. Realist Theory
According to this theory, a corporation is like a living organism, like a natural
human being, which also possesses natural rights. A corporation is not the creation of
a State, or fiction.
The modem realist theory builds on an analysis of human personality and
regards group personality as in essence possessing the same characteristics. Gierke
speaks of the group as having a real will, and real power of action. A corporation is
real but mysterious entity with a special type of existence.
If the power of the reason to organize experience and to direct action is
emphasised as the sole essential mark of personality. we may plausibly argue that a
group is a person". The same reason, which directs our individual lives, may be seen
in the life of the group working in the service of those ends which the group desires.
In the human personality, there is a feeling of individuality, of self-consciousness, an
experience centre which organizes experience. Attempts have been made to
discover a collective consciousness or experience centre for the group; but they have
not been successful (though one does find in the group a sense of the warmth and
intimacy which belong to self-consciousness). The theory fails to prove that the inner-
unity of the group exists otherwise than in the minds of the members who compose it.
Also, it is difficult to prove that there is a psychological continuity (of experiences) in
the group mind similar to that of the individual.
The realist theory may be more easily applied to certain groups than to others.
There may be very real analogies to human personality in the life of a nation, a group
or a university, but a one-man company or a foundation seems far removed.

F. Purpose Theory
The theory originally perpounded by Britz and developed by Baker, is based
on the assumption that person is applicable only to human beings. The so called
juristic persons are no person at all. Since juristic persons are treated as distinct from
their human substratum, if any, and since jural relations commonly vests in human
beings, they should be regarded simply as subjectless properties designed for certain
purposes. The theory was designed mainly to explain the foundation of German law
and also explain the vacant inheritance of Roman law.

G. Kelson's Theory
Kelson makes an analytical and formal approach to the concept of personality.
He rejected, for purposes oflaw, any contrast between human beings as natural
persons and Juristic Persons. He also rejected the definition of person as an entity
which has claims and duties. According to him the totality of claims and duties is the
person in law; there is no entity distinct from them. Turning to corporations, he
pointed out that it is the conduct of human beings that is the subject matter of claims
and duties.

Conclusions
No single theory takes account of all aspects of the problem, and criticism
becomes easy. There is no essence underlying the various uses of persons. Its
application to things other than human beings is purely a matter of legal convenience.
The theories are philosophical, political or analytical, but are not so much
concerned with finding solutions to practical problems as with trying to explain the
meaning of the word person. Courts, faced with problems of solving a case before it,
have proceeded according to policy, not logic. Thus, courts haven't adopted any
particular theory of corporate personality.
The way in which the idea of 'person' has been extended to corporation is no
longer suited to modem commerce. Here, it is not flexible enough. For instance, the
separate person of a corporation fails to cope with the problems of parent and
subsidiary companies. The courts have evolved ways of dealing with the group
activities without resorting to the device of persons. Thus, it seems that the legal
concept of person is not efficient in todays society.

Liabilities of Corporations
From the above discussion, it is amply clear that the corporation has no
physical existence. Therefore, its interests are only those which are attributed to it. So,
the acts of the corporation are those of its shareholders. The representatives of the
corporation are distinct from the members of the corporation.

OWNERSHIP
OWNERSHIP
Meaning and element
Incidents
Definitions of Ownership
(a) Indefinite User
Unrestricted disposition
Unlimited duration
Holland's definition:
Salmonds definition:
Other definitions:
Kinds of Ownership
Vested and Contingent Ownership
Sole and Co-ownership
Corporeal and Incorporeal Ownership
Legal and Equitable Ownership
Modes of Acquiring Ownership-Ancient and Modern Law
Ancient Hindu modes of acquisition of ownership
Ancient Western Law
Modern Law
POINTS TO REMEMBER

The institution of property has been of tremendous significance in human

affairs. The two important rights over or in relation to property are the rights of
ownership and that of possession. These two concepts have certain similarities yet in
their legal connotation and incidents they differ vitally.
In primitive societies the only concept known to human mind was that of
possession. It was much later that the concept of ownership was adopted. So long as
men were huntsmen or herdsmen they were nomadic in character and had no settled
habitation, had no sense of ownership. Gradually with the planting of trees and the

cultivation of land and the settlement of a local home, the notion of ownership began
to grow. This synchronised with the change from a nomadic to settled life. This
transition from a pastoral to an agricultural economy facilitated the development of
the idea of individual right to property which is the basis of the concept of ownership
in a relatively developed society.

Meaning and element

The literal meaning of the term 'own' is to have or hold a thing. The one who
holds a thing as his own is said to be the owner and has the right of ownership over it.
Thus in the non-legal sense ownership may be defined as the right of exclusive
control over and disposal of a thing at will.
In the legal sense the term ownership carries the connotation of right over a
thing to the exclusion of all other persons. This implies non-interference by others in
the exercise of this right and must be distinguished from mere holding of a thing in
one's possession.
Ownership implies two elements, one is formal element, namely, will, power,
capacity, faculty, etc. Another is the material element i.e., the thing owned. For
example if A has Rs. 100-it (Rs.100) constitutes the material element of his
ownership, while his power under the law to spend it, to gift it or to will it is the
formal element of his ownership.

Incidents
Normally ownership implies, (a) the right to possess; (b) the right to use; (c)
the right to manage; (d) the right to the capital; (e) the right to the income.
The owner of a thing has the right to possess it, to the exclusion of all others
i.e., the owner has exclusive physical control of a thing or such control as the nature
of the thing admits. Generally speaking, one who owns also possess a thing but this is
not necessarily and always so. Thus to cite only a few examples, the owner may have
been wrongfully deprived of it or may have voluntarily divested himself of it. If A's
watch is stolen by B, the latter has possession but the former remains the owner with
an immediate right to possess. In case of lease and mortgage, the owner (i.e., the

lessor and the mortgagor) owns the property without possessing it, the possession lies,
with the lessee and the mortgagee.
The owner has the right to use the subject-matter of ownership according to
his own discretion. Here use means personal use and enjoyment of the thing by the
owner. This right of enjoyment or use is not absolute; it can be and is in fact, limited
by law. This does not mean that an owner cannot use the thing in a way he likes, but
he cannot thereby disturb the rights of others. Suppose A owns a transistor, he can
tune it at any time for listening to music, for news or for commentary, but in doing so
he is to take care that he does not disturb the right of others. Thus he cannot tune it at
a high pitch and at an odd time so as to disturb the sleep of others.
The owner has the right to manage i.e., he has the right to decide how and by
whom the thing owned shall be used. The owner has the power of contracting, the
power to admit others to one's land, to permit others to use one's things, to define the
limits of such permission, to create a right of easement over his land in favour of a
third person, etc. etc.
One who owns a thing has also the right to alienate the same or to waste,
destroy or to consume the whole or part of it. The right to consume and destroy are
straightforward liberties. The right to alienate i.e., the right to transfer his rights over
object to another involves the existence of a power. Almost all legal systems provide
for alienation and prescribed the mode in which it can be done. Thus in India and in
most of other legal systems alienation takes place by way of sale, mortgage, lease,
exchange, will, gift, etc.
In India the Transfer of Property Act prescribes the rules or procedure for
alienation. The right of alienation is the exclusive right of the owner. A non-owner
may have the possession of a thing but he cannot transfer the right of ownership of
such thing to another e.g., in case of a lease, a lessee may have the possession of the
leased property but he cannot transfer it because that is the exclusive right of the
lessor who only can do so.
The owner of a thing has not only the right to possess the thing but also the
right to the fruits and income of the thing within the limits, if any, laid down by the
law. Suppose A has a land, he has not only the right to possess that land but he can
enjoy benefits resulting therefrom e.g., produce, fruits, crops, etc. etc. Sometimes the

use or the occupation of a thing may be regarded as the simplest way of deriving an
income from it and of enjoying it.

Definitions of Ownership
Different writers have defined ownership in different ways. Austin defined
ownership as a right indefinite in point of user, unrestricted in point of disposition
and unlimited in point of duration.
Austins definition thus implies three attributes viz.,
a) indefinite user;
b) unrestricted disposition; and
c) unlimited duration.

(a) Indefinite User

By right of indefinite user Austin means that the owner of the thing is free to
use or misuse the thing in a way he likes. The owner of a land may use it for walking,
for building a house or for gardening and so forth. However, Austin was cautious
enough to use the term indefinite. He did not use the term absolute or
unlimited. The owner thus is not absolutely free to use the thing owned in any way
he likes. His use of the thing is conditioned by requirements or restrictions imposed
by the law. The owner must not use the thing owned as to injure the rights of others.
This principle is the foundation of the well known maxim Sie utere tero ut alierum
non laedas: the meaning of this maxim being that use your own property as not to
injure your neighbour's right. Again, the use of property may be restricted voluntarily
e.g., when a person gives his land or a house to a tenant. The use may also be
restricted by law in the interest of the community e.g., Town Planning Act, Slum
Clearance Act, 1955 etc. etc.

Unrestricted disposition
What Austin implies by unrestricted disposition is that the power of
disposition of the owner is unhampered by law meaning thereby that he is absolutely
free to dispose it to anyone.

This is incorrect. In case of lease of a thousand years, servitudes and

restrictive covenants, plenary control of a property is not possible. Moreover, in the
law of some of the western countries there is a rule of re legitima portis which
means that a person cannot dispose of his entire property. He has to keep a certain
portion of the property for the members of his family. Under Mohammedan Law a
similar rule prevails, namely, a person cannot dispose of by will etc. more than 1/3 of
his property to a stranger. In England, as well as in India a transfer of property made
with the intention of defeating and delaying creditors would be set aside. Wherever
the law of pre-emption prevails the right of disposition is restricted. So much so the
law can impose any restriction on the power of disposition. As under Hindu law a
Hindu governed by the Mitakshara law cannot alienate ancestral immovable property
without the consent of other coparceners except for legal necessity.

Unlimited duration
What Austin implies by this is that ownership of a person cannot be cut short
and the owner can continue to be the owner as long as he likes.
This is also incorrect since almost under every legal system the state possesses
the power to take over the property of any person in public interest. The abolition of
Zamindari System in India, the abolition of Privy Purses, Nationalisation of Banks
etc. are some examples of the fact that ownership can be cut short by the state for
public purpose and its duration is not unlimited.
Austin's. definition of ownership might have been more, if not wholly, correct
when the doctrine of laissez-faire prevailed. It is absolutely unacceptable under the
modern law.

Holland's definition: Austin's definition of ownership has been followed by

Holland. He defines ownership as plenary control over an object. According to him an
owner has three rights on the subject owned -
1) Possession
2) Enjoyment
3) Disposition

Plenary control over an object implies complete control unrestricted by any law or
fact. Thus, the criticism levelled against Austin's definition would apply to that given
by Holland in so far as the implication of the term plenary control goes.

Salmonds definition: Salmond says 'Ownership in most comprehensive

significance denotes the relation between a person and any right that is vested in him'.
That which a man owns, according to him, is in all cases a right. Ownership in this
wider sense, extends to all classes of rights, whether proprietary or personal, in rem or
in personam, in re-propria or in re-aliena. He adds, that it applies not only to rights in
the strict sense but also to liberties, powers and immunities.
Thus, according to Salmond ownership vests in the owner a complex of rights
which he exercises to the exclusion of all others. For Salmond what constitutes
ownership-a bundle of rights which inhere in an individual. Salmond's definition thus
points out two attributes of ownership -
(a) ownership is a relation between a person and rights that is vested in him;
(b) ownership is incorporeal (immaterial, having no material body or form).
For Salmond a man may own a copyright, or a right of way in the same way as
he owns a piece of land because in all these cases he owns only a right and not a
thing.
Salmond's definition does not indicate the content of ownership. It does not
indicate the rights, powers etc. which are implied in the concept of ownership. Again,
it is not wholly correct to say that ownership is a relation between a person and any
rights that are vested in him as the most popular and common idea of ownership is a
relationship between a person and a thing. Duguit says the thing is what is owned and
not the right which does not really exist.
There is an element of truth in Salmond's definition. Salmond has rightly
pointed out that the subject-matters of ownership can be not only material things e.g.,
land, watch etc. but also incorporeal and immaterial objects e.g., copyrights or
patents. In either case there is a bundle of rights, claims and power etc. which go to
constitute ownership.

Other definitions: Hohfield expresses a similar view (like that of

Salmond)when he says ownership is not a right but a bundle of rights, privileges,
powers etc.
However, the distinction made by Hohfield is one without a difference. Since
it is like calling a bucket of water as not a bucket of water but a bucket of millions of
drops of water. Hohfield adds that this collection of privileges, rights, powers etc. are
frequently found to reside either for a limited period or perpetually in a person other
than the owner.
Fredrick Pollock improves upon the other definitions when he defines
ownership as the entirety of the power of use and disposal allowed by law. Prof.
Keeton expresses a similar view when he observes that ownership is the ultimate right
to the enjoyment of a thing, as fully as the state permits when all prior rights in the
thing vested in persons other than the one entitled to the ultimate use are exhausted.
These two definitions give relatively a more proper connotation of the term
ownership. They bring out the most important fact that ownership is always subject
to limitations imposed by the law; it is the ultimate right to the enjoyment of a thing
subject to the condition or restriction imposed by the law as to the use of the thing
owned. Keeton has added another obvious dimension to the definition of ownership
when he speaks of ultimate use after all rights vested in persons other than the one
entitled to the ultimate use are exhausted". Thus, the owner may mortgage his house,
give it to a tenant etc. etc. yet he is the person who is entitled to the ultimate use of the
thing after the rights of the mortgagee or tenant are exhausted.
We may in conclusion say that-
a) Ownership is a right which comprises of powers, claims, privileges, etc.
b) Ownership is in respect of a thing which may be corporeal or
c) The rights relating to or in connection with ownership are subject to state
regulation i.e., can be limited or restricted by law.
d) Owner is he who is entitled to the residue of rights with respect to an object
left after the limitation resulting from the voluntary acts of the owner
(mortgage, lease or hire) or those imposed by law are exhausted,
e) Ownership does not imply or indicate absolute or unlimited rights either
regarding use, disposal or duration.

Kinds of Ownership
Ownership may be of various kinds. Broadly, it may be classified under the
following heads-
(1) Vested and Contingent ownership.
(2) Sole and Co-ownership.
(3) Corporeal and Incorporeal ownership.
(4) Legal and Equitable ownership.
(5) Trust and Beneficial ownership.
(6) Absolute & Limited ownership.

Vested and Contingent Ownership

Ownership is either vested or contingent. It is vested when all the events
essential to vest property in the owner have happened and the owner's title is already
perfect. Thus if A sells a house to B for a price settled, the other formalities prescribed
by law e.g., registration etc. are complied with, B becomes a vested owner of the
house. A vested ownership does not depend upon the fulfillment of any condition but
creates an immediate right though its enjoyment may be postponed to a future date,
e.g., suppose there is a transfer of property to A for life then to B, here B's interest is
vested one because B need not fulfill any condition precedent and his title is perfect,
he is entitled to take possession the moment A dies. Thus, the aforesaid transfer only
postpones his right to his enjoyment to a future date. Again, suppose A makes a
transfer in favour of B Rs. 10,000 to be paid to him upon his attaining the age of 18.
Here B's interest is vested, he would be getting the money as soon as he attains the
age of 18.
Section 19 of the Transfer of Property Act, 1882 lays down the rules regarding
vested interests. According to this section where on a transfer of property an interest
therein is created in favour of a person without specifying the time when it is to take
effect, or in terms specifying that it is to take effect forthwith or on the happening of
an event which must happen such interest is vested, unless a contrary intention
appears from the terms of the transfer.

Contingent ownership is conditional. In this case the transfer of interest in

property is subjected to certain condition or conditions. The vesting of the right in
such cases depends upon the happening of such event or fulfillment of such condition.
Thus, if property is transferred to A for life then to B, if B marries C, B's interest is
such that it cannot take place as soon as A dies, because there is a condition which B
is to fulfill viz., that he must marry C. Until B fulfils this condition his interest is
contingent depending upon the fulfillment of the condition. Again, an estate is
bequeathed to A if he shall pay Rs. 500 to B-here As interest in the bequest is
contingent until he has paid Rs. 500 to B. The condition on which ownership depends
may be either a condition precedent or condition subsequent. A condition precedent is
one by the fulfillment of which a title is completed, a condition subsequent is one on
the fulfillment of which a title already completed is extinguished. In the former case
one acquires absolutely what he has already acquired conditionally. In the latter case
one looses absolutely what he has already lost conditionally. Section 21 of Transfer of
Property Act provides rules of contingent interest. According to this Section, where
on a transfer of property, an interest therein is created in favour of a person to take
effect only on the happening of a specified uncertain event or if a specified uncertain
event shall not happen, such person thereby acquires a contingent interest in the
property.

Sole and Co-ownership

When the right of ownership is exclusively vested in one person it is called
sole ownership. When property is jointly held by several persons at the same time it is
called co-ownership. The property held by the partners in a firm is an example of co-
ownership. According to English Law co-ownership is further sub-divided into joint
tenancy and tenancy-in-common. It may be in the form of joint tenant when interest in
property is considered as single unit. These type of tenancy arose wherever land was
conveyed in favour of more than one person by a single instrument without words of
severance, i.e., without indicating or apportioning the extent of interest of each person
in the property or indicates the portion to which one of them severally would be
entitled. Since in joint tenancy interest is considered as single unit, a joint tenant
cannot maintain an action for trespass against the other joint tenant but he can

maintain an action of trespass, against a third person. The most important

characteristic of joint tenancy is the right of survivorship. Thus, if A and B are joint
tenants and A dies first his interest in property pass to B by survivorship. The typical
example of joint tenancy in India is that in case of a mitakshara coparcenary where
the interest in property is held jointly by coparceners and they have the right of
survivorship. After the death of one or more of the coparceners the property goes to
surviving coparceners, by virtue of survivorship. Nowhere else is the principle of joint
tenancy applied in Hindu Law.
Under English law a joint tenancy may be severed and converted into a
tenancy-in-common by one of the joint tenants disposing of or contracting to sell his
interest or by mutual agreement or by a course of dealing of all the joint tenants
sufficient to indicate a severence. A tenancy-in-common may arise by operation of
equity e.g., when more than one person jointly purchase a house contributing equal
amounts and take conveyance in joint name, they become tenants-in-common in
proportion to their contribution to the share of purchase money. A tenant-in-common
is entitled to joint possession and if excluded from such possession, may sue for a
declaration of his right. If there is no exclusion or denial of his right as a tenant-in-
common but one of the tenants gives up joint possession he has no right to sue for his
share of the joint profit. There is no right of survivorship in case of tenancy-in-
common so on the death of a tenant-in-common his share goes to his legal
representative. Thus, tenancy-in-common implies only unity of possession but not of
title whereas joint tenancy implied both unity of possession and title.

Corporeal and Incorporeal Ownership

Corporeal ownership is the ownership of material or tangible things or objects.
It is the ownership of those things which we can see and touch. That is to say
corporeal ownership relates to corporeal property, immovable, or movable.
Immovable property includes land and buildings and things attached to the land.
Whatever is planted to the land goes to the land. Thus, if A builds a house on his land
with Bs materials, A becomes the legal owner also of the building. It has been laid
down- Quia omne quod solo inacdifioatur solo cedit i.e., by whatever means it be,

what is affixed to the land becomes eroded to it. Movable property means and
includes things not attached to the land, and personal effects. When what is attached
to the land becomes a movable property when separated from the land. Incorporeal
ownership is the ownership of intangible object-object which cannot be perceived and
felt by touch i.e., the ownership of a right, for example, a debt, a patent, goodwill,
trademark etc. etc. Incorporeal ownership, according to Salmond, is an ownership in
the sense of the term i.e., ownership of all kinds of rights.

Legal and Equitable Ownership

This classification of ownership is recognized in England. This difference
between the two of the ownerships has its origin in the rules of common law and
equity. In England, the original law was the common law-the law based on the
common custom of the country which was developed and administered by the
common law courts. But in the course of time the common law became a definite
body of rules which was not capable of growth in various directions and even caused
hardship and injustice in particular cases owing to the inflexibility of its procedure
and modes of redress. Rules of Equity were developed by the chancellors who sat in
the Chancery as the Keeper of the Kings Conscience, to give relief in cases of
hardship by the application of the principles of morality or conscience. Thus, in
England before the passage of Judicature Acts of 1873 and 1875, two types of courts
with two distinct jurisdictions were functioning. The two courts were known as the
Court of Common Law and the Court of Equity. The right recognised and protected
by the common law courts were known as the common law right whereas the right
recognized and protected by the Equity Courts were known as the equity rights.
Judicature Acts of 1873 and 1875, amalgamated two courts but still today equitable
ownership is recognised in England as it gets recognition by the Equity Bench of
Common Law Courts. Originally legal ownership meant that which had its origin in
the rules of the common law, while equitable ownership meant that which resulted
from the rules of equity divergent from the common law. The courts of common law
refused to recognize equitable ownership and denied that the equitable owner was an
owner at all. On the other hand, the Court of Chancery adopted a very different
attitude. Here the legal owner was recognised no less than the equitable but the former

was treated as a trustee for the latter. The Court of Chancery vindicated the principles
of equity, not by denying the existence of the legal owner but by taking from him the
beneficial enjoyment of his property. Thus, in England legal owner is one whom the
common law would designate as the owner whereas the equitable owner is the
person whose ownership is protected by the Chancery Bench. So when property is
given by A to B for the benefit of C-B becomes the legal owner and C-the
equitable owner. The Bench of Equity protects C's interest, even though legal
ownership remains in B. Both law and equity consider D as the legal owner. The
Equity Bench, however, prevents the legal owner from dealing with the property in
derogation of the beneficiarys interest.
In India, the distinction between legal and equitable ownership is not
recognized. It was observed in Tagore v. Tagore,1 that in India, under the Indian
Trust Act a beneficiarys interest is not an interest in the trust property but an interest
by way of a right against the trustee who are regarded as the legal owners of trust
property. The trustees are, subject to the law relating to trust and trustees, bound to
carry out the trust according to the dictates of the maker of the trust. If the trustees fail
to do so, the beneficiaries can have their rights enforced against the trustees as a
matter of right.

Modes of Acquiring Ownership-Ancient and Modern Law

The acquisition of ownership may take place either in respect of a thing which
had no previous owner or in respect of a thing which had a previous owner. If the
thing had not a previous owner, then the ownership of one person is transferred to
another. If it had a previous owner, then a new ownership is created. Thus, a bird in
the air would belong to one who shoots it and takes possession of it. However, in case
of a house owned by A, the ownership can be transferred to B in accordance with the
provisions of the law.

Ancient Hindu modes of acquisition of ownership

Ancient Hindu jurists have said much about the means of acquiring ownership.
Manu declared that, there are seven virtuous means of acquisition of wealth, viz.,
inheritance, gain, purchase, conquest, application (of wealth), employment of work of

and acceptance of gifts from proper persons. Gautma gives almost the same seven
ways of acquiring ownership but he put some modifications to the list given by Manu.
For him ownership arises from succession, purchase, partition, occupation of
inappropriate property and finding of hidden treasures or the like, to which may be
added acceptance of gifts in the case of Brahmans, conquest in the case of Vaisyas
and wages of labour in the case of Sudras. Narada enters into a little more details and
says that there are twelve different modes of acquiring wealth of which three are
general (i.e., open to all castes) and the rest are peculiar to several castes. These
specific modes of acquiring wealth are proper for several castes and any contravention
is reprehensible unless forced by' pressing necessity.

Ancient Western Law

Following were the modes of acquisition of ownership under ancient Western
law:-
(a) Occupation.- Under Roman Law the term occupacio connoted that for
the acquisition of ownership of or hunted animals, it was immaterial to see whether a
man took wild beast or birds upon his own ground or that of another. But English law
did not ascribe ownership to a trespasser who killed game on another persons land.
Under Hindu law the term occupacio was known as parigraha which means
appropriation and is explained in the Viramitrodya as signifying the appropriation of
previously unappointed property such as straw, water, logs of wood, etc. from a forest
which is open to the public as not being under the ownership of any particular
individual.
(b) Finding of Treasure trover.- Under Roman law, if any treasure was
found by the owner of the land where it lay concealed, he could keep the whole of it,
if it is found by another person then the finder and the owner of the land take it with
equal distribution.
Under English law, neither the finder, nor the owner of the land had any
interest in it but it belonged entirely to the Crown. Non-disclosure of it was regarded
as an offence. The Hindu Law relating to treasure trover has been described by
Yajnavalkya. He said that if the King discovers the treasure trover, then he will take
half and distribute the other half among Brahmans, if a learned Brahman finds it, then

he may keep the whole himself in other cases the King will give one-sixth to the
finder and take the rest himself but if the finder does not bring the fact to the notice of
the King then he will, on coming to know of it extract the whole and also punish the
finder. To this Mitakshara adds, on the authority of Manu, that even in such a case if
the real owner comes forward and establishes his title, the King will restore the
treasure to him after retaining one-sixth or one-twelfth for himself, or according to
Nilakantha one-fourth for himself and one-twelfth for the finder.

(c) Conquest by War.- According to Roman and English law the property of
the enemy was regarded as res nullius so the victorious party could deal with it in any
way they liked. Even the property of private individuals in the conquered country
could be freely disposed of by the conquering state and no 'private rights can be set up
against it. Hindu Law did not recognise this rule. Under Hindu Law conquest is an.
independent. source of acquisition of ownership. According to it conquest did not take
away all private rights the only effect was to invest the victorious Kings with all the
rights which defeated King had-so the former might claim full ownership of the
property of the latter but his right so far property of the subjects were concerned did
not extend to anything more than to collect revenue from them.

(d) Accession.-Accession or application of already existing property was a

mode of acquiring ownership, which was known both under Roman and English law.
Thus, if a field produces crops or a domestic animal bears offspring, the produce in
each case belongs to the owner of the field or the animal unless there has been some
previous agreement modifying the general rule. This rule was known as Proyago
under Hindu law. Thus, according to Hindu law, if a river which flows between two
villages and forms the boundary between them encroaches upon one bank and
attaches newly formed land to another then the owner of the bank on which the
formation takes place becomes entitled to it as an accretion to his property.

Modern Law
Under modern law there are the following modes of acquiring ownership
which may be broadly classed under two heads, viz.,-

1. Original mode, and

2. Derivative mode.
The original mode is the result of some independent personal act of the acquirer
himself. This mode of acquisition may be of three kinds-(a) absolute, when a
ownership is acquired over previously ownerless object (i.e., res nullius rule-who took
it first became the owner) e.g., when one shoots a bird or deer in a jungle open to
public he gets the ownership. (b) Extinctive, that is where there is extinction of
previous ownership by an independent adverse act on the part of the acquirer, e.g.,
prescription. This is how a right of easement is acquired after a passage of time
prescribed by law.
(c) Accessory that is when requisition of ownership is the result of accession. For
example, if tree bears fruits, the produce belongs to the owner unless he has parted
with the rights to the same.
When ownership is derived from a previous owner it is called derivative
acquisition. That is derivative mode takes place from the title of a prior owner. It is
derived either by purchase, exchange, will, gift etc. Every legal system of the world
provides some rules for the requisition of ownership by this mode. Indian Transfer of
Property Act provides rules for the transfer of immovable property, Sale of Goods Act
lays down rule for the transfer of movable property, Partnership Act for the transfer of
property of the firm and the Companies Act for the transfer of company property.

POINTS TO REMEMBER
1. In primitive society the only concept known to human mind was that of
possession.
2. It was much later that the concept of ownership came into existence.
3. Ownership is a right over the thing to the exclusion of all other persons.
4. Ownership implies two elements viz. formal and material.
5. Will, power, capacity, faculty, etc. are the formal element of ownership.
6. The thing owned is the material elements of ownership.
7. Right to possess, use, manage, right to the capital and right to the income are
the important incidents of ownership.

8. Ownership, however, does not imply or indicate absolute or unlimited rights

either regarding use, disposal or duration.
9. The rights relating to or connected with ownership are subject to state
regulations, i.e. can be limited or restricted by law.
10. Ownership is a social institution. The extent of the rights, privileges, powers
and immunities that are exercisable by an owner- reflect the social policy of a
particular legal system.
11. Under modern law there are mainly two modes of acquiring ownership-
original mode, derivative mode.
12. The original mode is the result of some independent personal act , of the
acquirer himself.
13. When ownership is derived from a previous owner it is called derivative
acquisition.
14. It is derived either by purchase, exchange, will, gift etc.

Do the Judge make Law?

Declaratory Theory
The Original Law Making Theory
Advantages of case-law
POINTS TO REMEMBER

Do the Judge make Law?

There is a controversy on this point viz., do judges make law? There are two
theories-
1. Declaratory theory -
2. Original Law Making theory

Declaratory Theory
Main exponents of this theory are Hale, Blackstone and Carter. According to
them a judge declares the existing law. Judges only discover the existing laws, the
particular principles that govern individual cases. Through their interpretation they
give a new shape to the existing law. Hale, one of the supporters of this theory says
that Parliament alone legislates, in the strict sense the judges only expound the law.
They are the finders of law.
Austin and Bentham have criticized this theory. They said that it is wrong to
assume that judges only declare law but by interpreting laws, by giving new shape
judges make laws.

The Original Law Making Theory

Supporters of this theory are Lord Bacon, Dicey, Gray and Salmond.
According to them Judges make law in the same sense in which the legislator makes
it. They are guided by certain principles, conventions and ideals. The supporters of the
second theory mostly belong to common law countries where the judges have played
a great creative role in moulding the law. The role of the judges were so significant
and dominant in England that English Law is sometimes called as judge-made law.
This led to the supporters of this theory to conclude that judges are the makers of law.

This theory has been criticised on the ground that judges cannot make law, in
the sense a legislature makes a law. Law-making power of legislature is different from
judges making law. Judges by interpreting the existing law give a new shape which
also ultimately Comes under the province of the making of law but it is absolutely
different from legislatures powers. To conclude, we can say that judges do declare
the existing law but at the same time judges do make law. Justice Mathew in
Kesavanand v. State of Kerala very aptly has described the role of judges. He says,
that the judicial function is like legislation, both creation and application of law. The
judicial function is ordinarily determined by the general norms both as to the Contents
of the norms to be created, whereas legislation is usually determined by the
Constitution only in the former respect. But that is difference in degree only. From a
dynamic point of view, the individual norm created by the judicial decision is a stage
in process beginning with the establishment of the first Constitution continued by
legislation and customs and leading to the judicial decisions. The Court not merely
formulates already existing law although it is generally asserted to be SQ. It does not
only seek and find the law existing previous to its decision, it does not merely
pronounce the law which exists already and finished prior to its pronouncements.
Both in establishing the presence of the conditions and in stipulating the sanctions, the
judicial decision has a constitutive character. The law-creating function of the Courts
is specially manifest when the judicial decision creates a general norm. Where the
Courts are entitled not only to apply pre-existing substantive law in their decisions,
but also to create new law for Concrete cases, there is a comprehensible inclination to
give these judicial decisions the character of precedents. Within such a legal system
Courts are legislative organs in exactly the same sense as the organ which is called the
legislator in the narrower and ordinary sense of the terms. Courts are creators of
general legal norms.

Advantages of case-law
The principal advantages of case-law are as follows:-
1) Case-law is the outcome of practical needs considered by men of the highest
practical experience and therefore it is Sure to be in harmony with the needs of
society. In other words, the law that a judge makes is bound to be in

conformity with public opinion because the judge himself is a member of

society for which he lays down the law.
2) In case-law it is the ratio that matters and Judge can take his own time to
explain fully the principle he lays down.
3) A judge in formulating a rule of law is trying to solve an actual concrete
problem. Hence, the law that the judge makes is bound to be more satisfying
and complete than the law made by the legislature.
4) Case-law is bound to be of fine workmanship as it is formulated by people
who have a special training in law.

POINTS TO REMEMBER
1. Judicial precedent is an important source of law.
2. In England its importance is much more than in any continental country.
3. Precedent means a case decided previously.
4. Precedent furnishes as authority which under many circumstances binds a
court to make the same decision in future in a similar case.
5. The doctrine of judicial precedent was not known to India before the
establishment of British rule in India.
6. It got judicial recognition under section 212 of the Government of India Act,
1935.
7. The position of precedent became clear after 1950 and the doctrine got a
constitutional recognition.
8. Article 141 of the Constitution of India provides that law declared by the
Supreme Court shall be binding on all courts within the territory of India.
9. Ratio decidendi of a decision is the principle of law formulated by the judge
for the purpose of deciding the case.
10. Obiter dicta are the observations made by the judges while deciding a case.
11. Ratio decidendi of a case is having a binding effect upon a subordinate court.
12. Obiter dicta generally has no binding effect.
13. In India the obiter of the Supreme Court is binding upon the High Courts if the
Supreme Court has enunciated or declared some principle of law.
14. There are mainly two theories on the point viz. do the judges make law.

15. According to dec1aratry theory judges only declare law, no new law is created
by the judges.
16. According to original law-making theory supported by all the jurists belonging
to England, judges do make new law.

POSSESSION
POSSESSION
DEFINITION
ITS ESSENTIALS
MENTAL ATTITUDE OF THE POSSESSOR
RELATION OF THE POSSESSOR TO OTHER PERSONS
RELATION OF THE POSSESSOR TO THE THING POSSESSED
Legal consequences of possession
KINDS OF POSSESSION
MODES OF ACQUIRING POSSESSION
Possession and Ownership distinguished
POSSESSION POSSESSORY REMEDIES
Why Possessory Remedies are recognised
POSSESSORY REMEDIES AND ENGLISH LAW
(The Doctrine of jus tertii)
ADVERSE POSSESSION
CASES

DEFINITION
Few relationships are as vital to man as that of possession, and we may
expect any system of law, however primitive, to provide rules for its protection.
Human life and human society, as we know them, would be impossible without the
use and consumption of material things. We need food to eat, clothes to wear and
tools to use, in order to win a living from our environment. But to eat food, we must
first get hold of it, to wear clothes, we must have them, and to use tools, we must
possess them. Possession of material things then is essential to life; it is the most basic
relationship between men and things.- Salmond.
However, mere acquisition of possession would not be enough. Society must
also provide a climate of respect for individual possession. Thus, if a man could never
be sure that the food in his plate, the coat on his back and the tool in his hand will not
be snatched away by his neighbour, life in such a society would become difficult. It is
for this reason that law must provide for the safeguarding of possession.

But the concept of possession is as difficult to define as it is essential to

protect". (Salmond) It should, therefore, be noted, at the very outset, that the word
possession has many meanings, depending upon the context in which it is used, and
that it would, therefore, be futile to search for the proper meaning. Thus; A might
possess a car, B might possess a right to sue for that car, - whilst C might just possess
an excellent sense of humour. However, he lawyer is concerned with the meaning of
the term as used in legal parlance. In this sense, the possessing of a material object
can be said to be the continuing exercise of a claim to the exclusive use of such object.
Paton rightly points out that, in English law, one can clearly see a struggle
between convenience and theory. Theory seeks to discover an underlying thread, one
unitary concept in the interests of consistency and harmony. On the other hand, judges
feel reluctant to lay down any general principles and seek to dispose of particular
cases so as to render justice in every case. One thing, the learned author says, is clear,
and it is that English law has never worked out a completely logical and exhaustive
definition of possession.

ITS ESSENTIALS
Possession involves two distinct elements, one of which is mental or
subjective, the other, physical or objective. These were distinguished by the Roman
lawyers as animus and corpus, The subjective element is more particularly called
animus possidendi, or animus domini. Neither of these, observes Salmond, "is
sufficient by itself. Possession begins only with their union, and lasts only until one or
the other of them disappears.
1. Animus possidendi
Animus possidendi or the subjective element is the intent to appropriate to
oneself, the exclusive use of the thing possessed. It is an exclusive claim to a material
object. It is the intention of using the thing oneself and of excluding the interference
of other persons.

MENTAL ATTITUDE OF THE POSSESSOR

To constitute the animus possidendi, there must be an intention to possess, and
the nature of the intention is governed by the following rules:

a) The animus need not necessarily be in the nature of a claim of right.

b) It may be consciously wrongful. Even a thief has possession which is no less
real than that of a true owner.
c) The claim of the possessor must be one of exclusive possession, involving an
intent to exclude other persons from the use of the thing possessed.
d) The exclusion need not be absolute.
e) The animus possidendi need not be a claim on ones own behalf; one may
possess a thing either on his own account or on account of another.
f) The animus possidendi need not be specific; it may be general. X may intend
to possess all the books on his book-shelf, though he might have forgotten the
existence of some of the books on the shelf. This general intention to possess
all the books in the bookshelf is sufficient animus for X possessing every book
on the shelf.
2. Corpus
To constitute possession, the animus domini is not in itself sufficient; it must
be embodied in a corpus. Corpus is the effective realisation in fact of the claim of the
possessor. Effective realisation means that the fact must amount to the actual present
exclusion of all alien interference with the thing possessed, together with a reasonable
and sufficient security of the exclusive use of it in the future.

Corpus possessionis
The corpus of possession can be discussed:
(i) in relation of the possessor to other persons; and
(ii) in relation of the possessor to the thing possessed.

RELATION OF THE POSSESSOR TO OTHER PERSONS

So far as others are concerned, a person is in possession of a thing when he
can, be under a reasonable expectation that he will not be interfered with in the use of
the thing. He must have some sort of security. A thing is possessed, when it stands
with respect to other persons in such a possession with the possessor, having a
reasonable confidence that his claim to it will be respected, is content to leave where
it is. (Salmond) Such security may be derived from any of the following sources

1) The physical power of the possession.

2) The personal presence of the possessor.
3) By a person being able to hide a thing and keeping it in secrecy, so that he
avoids the interference of others.
4) A person may also enjoy such security by the fact that the members of the
society have developed a respect for rightful claims.
5) A person might enjoy security and protection by the possession of other
things. For example, if one possesses the key of a house, by virtue of that
possession, protection is afforded to the house and also to other things
contained in the house.

RELATION OF THE POSSESSOR TO THE THING POSSESSED

The second element for the purpose of possession is that the relation between
the possessor and the thing possessed is such as to admit of his making use of the
thing as he likes, consistent with the nature of the thing. There must be no barrier
between him and it, inconsistent with the nature of the claim he makes to it.
Thus, in one case, a parcel of bank-notes was dropped on the floor of A's shop,
where they were found by B, a customer. Can A claim the notes? Here, A had no
possession in law of those bank-notes. Possession requires the concurrence of two
elements, animus or the intention of the possessor with respect to the thing possessed,
and corpus or the external facts in which this intention is realised, embodied or
fulfilled. Neither of these is sufficient by itself. A mere intention to appropriate a thing
will not amount to the possession of that thing. Possession begins only with the union
of these two elements. In this case, A did not have the necessary animus, for he did
not know of the existence of the parcel at all, although he might have had the corpus,
it having been dropped in his shop. [See Bridges v. Hawkesworlh, 21 L.J.Q.B. 75.]

Legal consequences of possession

The following are the legal consequences which flow from the acquisition and
loss of possession:
1. Possession is prima facie evidence of title of ownership.

2. Long adverse possession confers title even to property which originally

belonged to another.
3. Transfer of possession is one of the chief modes of transferring ownership.
4. The first possession of a thing which as yet belongs to no one (res nullius) is a
good title of right.
5. Even in respect of property already owned, the wrongful possession of such
property is a good title for the wrong-doer, as against all the world except the
true owner.
6. Possession is of such efficacy that a possessor may, in some cases, confer a
good title on another, even though he has none himself. (Such cases constitute
the exceptions to the rule contained in the maxim, nemo dat quod non habet,
i.e., he who has not can give not.)

KINDS OF POSSESSION
Possession can be classified under the following four heads:

1. Corporeal and incorporeal

Corporeal possession is the possession of a material object. Incorporeal
possession is the possession of anything other than a material object. In the case of
corporeal possession, the actual use or corpus possessionis is not essential. In the case
of incorporeal possession, actual continuous use and enjoyment is essential, it being
the only possible mode of exercise.
According to Savigny, the essence of possession is to be found in the physical
power of exclusion. The corpus possessionis required at the commencement is the
present or actual physical power of using the thing oneself, and of excluding all other
persons from the use of it. Thus, according to Savigny, to acquire possession of a
horse, one must take him by the bridle or ride upon him or have him in one's
immediate presence, so that one can prevent all other persons from interfering; but no
such immediate physical relation is necessary to retain the possession so acquired.

Salmone criticises the above view on the following two grounds:

a) Firstly, he says that, even at the commencement, a possessor need have no

physical power of excluding other persons. The true test, according to
Salmond, is not the physical power of preventing interference, but the
improbability of any interference, from whatever source this improbability
arises.
b) Secondly, the theory of Savigny is inapplicable to the possession of
incorporeal things. Here, there is neither exclusion, nor even the power of
exclusion.
The distinction between corporeal and incorporeal possession has often been
criticised on the ground that it is really doubtful whether there can ever be such a
thing as possession of incorporeal objects. How can one have an actual or physical
hold over a thing in the case of incorporeal objects? It is, therefore, said that an
incorporeal right cannot be possessed, though it can be owned, and that what goes by
the name of incorporeal possession is actually quasi-possession.

2. Mediate and immediate

Again, possession, may be mediate or immediate. By immediate possession, is
meant the direct or the primary possession by a person over a particular object which
he acquires or gets directly or personally. It implies necessarily a direct and actual
hold over the corpus of the thing. It also implies that there is no other intermediary to
hold the thing. The mere fact that X has a car and that he keeps it in his possession is
sufficient to constitute his immediate possession in this sense. But whenever some
property or thing is found in the possession of one person on behalf of another, such
possession is called immediate possession, as for instance, the possession of a bailee
or a custodian, and the person on whose behalf the thing is possessed is called a
mediate possessor. So, if X leaves his car with the driver, the drivers possession will
be immediate possession, whereas that of X would be mediate.

Kinds of mediate possession

Mediate possession is of three kinds

a) The first is that which one acquires through an agent or servant, that is to say,
through some one who holds solely on one's account, and claims no interest of
his own.
b) The second kind of mediate possession is that in which the direct I possession
is with a person who hold the thing possessed, both on c his own account, and
also on someone else's account, but who also recognises the owner's superior
right to obtain from him the direct possession whenever the latter chooses to
demand it. This is the case of a borrower, hirer or tenant-at-will.
c) The third form of mediate possession is the case in which the S immediate
possession is with a person who claims it for him until some time has elapsed
or some condition has been fulfilled. Securities are instances of this type of
mediate possession.

3. Concurrent
As a general proposition of civil law, it is true to say that two persons cannot
be in possession of the same thing at the same time, for two adverse claims of
exclusive use cannot both be effectually realised at the same time. But claims which
are not adverse, and which are not, therefore, naturally destructive, admit of
concurrent or duplicate realisation. Hence, there are several cases of duplicate
possession:
1. Mediate and immediate possession co-exist, for there are two persons who
possess the same article, one of them being in the immediate possession and
the other mediate, i.e., not a present or immediate physical hold over the thing,
for instance, a servant or an agent may possess a thing on behalf of the master.
2. Two or more persons may possess the same thing in common, just as they may
own it in common.
3. Corporeal and incorporeal possession may co-exist in respect of the same
material object, just as corporeal and incorporeal ownership may. Thus, A may
possess a piece of land, while B may have a right to pass over that same land.
A's claim of exclusive use is not absolute, but general.

4. Possession in fact and in law

Possession may be factual (de facto) or legal (de jure). If X owns a house, he
has de jure possession, because he has a legal right to possess the house. Further, if he
lets it out to Y, his possession is also de jure, as the latter is also legally entitled to use
the house. However, if a trespasser goes and occupies Xs house, his possession will
not be legal possession. although it will be factual (de facto) possession.
Possession in fact, possession naturalis, and possession in law, possession
civilic, are not always identical. There are three possible cases in this respect:
a) Possession may, and usually does, exist, both in fact and in law. Thus,
when a man has a watch on his wrist, his possession of the watch is both in
fact and in law.
b) Possession may exist in fact, but not in law. Thus, when a man goes to a
shop to buy a watch, shilst he is examining a watch in his hand, or trying it
out on his wrist he has possession thereof in fact, - but not in law.
Likewise, a diner at a restaurant has possession in fact of the plates, cups,
cutlery etc. (whilst he is dining); however, he does not have possession
thereof in law. However, a servants possession of his masters property is,
for some purposes, not recognized as such by the law, and he is then said
to have detention or custody, rather than possession.
c) Possession may exist in law, and not in fact. This is what English jurists,
including Salmond, call constructive possession. Thus, X may keep his
jewellery in a locked box and leave the box with Y, retaining its key with
himself. In such a case, X is said to have constructive possession of the
jewellery.

Possession in fact
A legal system may not make any distinction between possession in law and
possession in fact. In such a case, possession would mean actual control over a thing.
But such identification is not always practicable. The concept of possession in law is
more refined than the concept of possession in fact.
Possession in fact would mean actual control. Actual control is the relationship
between a person and a thing. As seen above, actual control would be the result of:
a) The relation of the possessor to other person;

b) The relation of the possessor to the thing possessed.

Possession in law
Notwithstanding the logical and clear analysis of Salmond, the Editor of
Salmonds Jurisprudence is of the view that a terse definition of possession to apply to
all instances of legal possession in impossible. According to him, the basic concept is
that of factual possession, (i.e. possession in fact) but this core of the definition is
refined by extensions or restrictions in order to include the right to possession in law.
Naturally, the definition of possession has to be in relation to the purpose for
which it is defined. The definition of possession may be relevant in the law of larceny
(theft), law of bailment, law of possessory remedies etc. Therefore, a consistent
theory of possession is not possible. One can only conclude that possession in fact
may be absolute, but possession in law is relative.

5. Adverse possession
Adverse possession is where one person in possession claims exclusive right
to the land of another who is not in possession. Thus, if X is openly in possession of
Y's land for an unbroken period of twelve years or more, he can claim a title to the
land by adverse possession. Y's legal right of ownership to the land is destroyed by Xs
adverse possession.
The above is also an illustration of the maxim Possession is nine points of
law. Here, Xs adverse possession for twelve years gave him ownership, being a
recognised evidence of Xs right over the property.

MODES OF ACQUIRING POSSESSION

There are two modes of acquiring possession, namely, taking and delivery.
1. Taking
Taking is the acquisition of possession without the consent of the previous
possessor. Such taking may be either rightful or wrongful.
2. Delivery
Delivery is the acquisition of possession with the consent and co-operation of
the previous possessor. It may be actual or constructive.

(a) Actual delivery is the transfer of immediate possession. It is of two kinds,

according as the mediate possession is or is not retained by the transferor.
(b) Constructive delivery is that which is not actual. It is of three kinds. The first
consists in the surrender of the mediate possession of a thing to him who is already in
immediate possession of it. Thus, a friend, who has borrowed a book from A has only
the immediate possession of such book, the mediate possession being with A. If later
on, A wants to present that book to him, A need not first take back the book from him
and then give him full possession by actual delivery. A can effectually transfer the
property in the book by merely surrendering to him by As mediate possession, i.e., by
asking him, while it is still retained by him, to keep it for himself. This is known as
traditio brevi manu.
The second consists of the transfer of mediate possession, while the immediate
possession remains in the transferor.
The third is known as attornment. This is the transfer of mediate possession, while the
immediate possession remains outstanding in some third person.
Possession and Ownership distinguished
Possession, says Ihering, is the objective realisation of ownership. It is in
fact what ownership is in right. Possession, whether of a thing, an interest, or a right,
is the de facto exercise of a claim, whereas ownership is the de jure recognition of
such a claim. Ownership is the guarantee of the law, possession is the guarantee of
the fact. Possession, therefore, is the de facto counterpart of ownership. It is the
external form in which rightful claims normally manifest themselves.
By ownership in law, is meant the right of an individual or a body corporate or
incorporate to possess a thing to the exclusive use of it, to alienate it, and even to
destroy it, in such a manner that he does not disturb the rights of other people.
Ownership, in the strict sense of the term, may be defined as a right to the enjoyment
of the uses of the subject-matter, with a right to deal with the same in the manner
stated above.
It is not necessary that the owner of the corpus should enjoy all the rights or
uses at the same time. If A is the owner of a motor-car, he can either use it or he can
lock it up in the garage, or he may use it every day or sparingly or he may exclude
strangers or outsiders from using it; he can gift it away to anyone, or even lawfully

destroy it, if he so desires. In short, he has exclusive dominion over his motor-car.
Such a right is against the whole world, and nobody can disturb him in the peaceful
enjoyment of the thing owned by him.
Similarly, in case of incorporeal rights, such as a copy-right, trade-mark or
patent, one is fully entitled to the use of all these incorporeal rights to the exclusion of
all others. One's right to the ownership or anything that one possesses means the duty
of all others to abstain from either trespassing or committing waste or mischief, in
such a manner as to disturb him in the enjoyment of his right of ownership.
Ownership, in its wider sense, has been defined by Austin as a right indefinite
in point of user, unrestricted in point of disposition and unlimited in point of
duration. According to him, the right of alienation of property is a necessary
incident to the right of ownership, but it must be noted that today, there are many
restrictions with regard to the alienation of property.
According to Pollock, Ownership may be described as the entirety of the powers of
use and disposal allowed by lawThe owner of a thing is not necessarily the person
who, at any given time, has the whole power or use and disposal; very often, there is
no such person. We must look for the person having the residue of all such power,
when we have accounted for every detached and limited portion of it; and he will be
the owner, even if the immediate power or control and user is elsewhere. In its
widest sense, Salmond describes ownership as the relation between a person and any
right that is vested in him.
Possession is the ,external relation of ownership, and to a very great extent, is
a valuable piece of evidence to show the existence of ownership. Possession may be
described as the right of ownership, that is, as something factual, Possession,
therefore, is the de facto manifestation or enjoyment of the right of ownership.
Ownership is the de jure right, of which possession is the de facto manifestation.
According to Salmond, "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 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 ..... Possession is the de facto counterpart
of ownership.

POSSESSION POSSESSORY REMEDIES

Possessory remedies are those legal remedies which exist for the protection of
possession even against ownership, whereas proprietary remedies are those which are
available for the protection of ownership itself.
In many legal systems, possession is a provisional or temporary title, even
against the true owner himself. A wrongful possessor, who is deprived of his
possession, can recover it from any person whatever, simply on the ground of his
possession. Even the true owner, who retakes his own, must first restore possession to
the wrong-doer, and then proceed in due course of law on the ground of ownership.
As stated earlier, adverse possession for 12 years or more results in ownership in the
eyes of law. It is therefore, sometimes, said that possession is nine points of the law.

Why Possessory Remedies are recognised

The concept of possession is of far-reaching importance in view of the ' fact
that legal consequences flowing from the acquisition or loss of possession are quite
grave. Possession often amounts to evidence of ownership. Thus, a finder of goods
becomes the owner thereof as against the whole world, except the true owner, by
virtue of the fact of possession. Likewise, by adverse possession for twelve years or
more, a person Ii becomes the legal owner of the property possessed, and the right of
the 5 original owner is extinguished by perfect negative prescription.
Savigny points out that the protection of possession is of considerable
advantage for protecting citizens and their property, and for the maintenance of public
peace. The protection of possession is absolutely necessary to prevent forcible
interruption and trespasses on the right of property and possession thereof.
As observed by the Court of Exchequer in Rogers v. Spence (13 M & W 581),
These rights of action are given in respect of the immediate and prevent violation of
the rights of property. They are an extension of the protection which the law throws
around the person.
The following, are the three main reasons for providing possessory remedies :

1) The evils of violent self-help are deemed so serious that it must be discouraged
by taking away all advantages which anyone derives the from it. He who helps

himself by force must restore it, even to a thief. The law gives him a remedy,
and with it he must be content.
2) The second reason providing possessory remedies is to be found in the serious
imperfection of early proprietary remedies. In older legal systems, it was
extremely cumbersome to prove ones ownership to recover the property on
the ground of the title. Quite often, small technicalities would defeat ones title
to property.
3) The third reason for providing possessory remedies is that it is always more
difficult to prove ownership than to prove possession. Therefore, it is
considered unjust that a man should be allowed by violence to transfer the
heavy burden of proof from his own shoulder to that of his opponent.
Everyone should bear his own burden. He who takes a thing by force must
restore it to him from whom he has taken it; let him then prove, if he can, that
he is the owner.

POSSESSORY REMEDIES AND ENGLISH LAW

(The Doctrine of jus tertii)
Under English law, no possessory remedies are granted; yet it has been
possible for English law to attain the same aim as that of the possessory remedies by
providing the following three rules:
1) Prior possession is prima facie proof of title. He who is in posses-sion first in
time has a better title than the one who has no possession.
2) A defendant is always at liberty to rebut this presumption that the better title is
in himself.
3) A defendant who has violated the possession of the plaintiff is not allowed to
set up the defence of jus tertii. Under the defence of jus tertii, one pleads that
though neither the plaintiff nor he has the title, some third person is the true
owner and the plaintiff is not. This defence will not be a valid defence under
English law, as prior possession is always a prima facie proof of title. Thus, if
A is in possession of a car which is stolen by B, it is not open to B to tell the
Court that although he himself (B) is not the rightful owner of the car, nor is A.
because the car actually belongs to a third person, C.

Though the title of a third person is not a good defence, under exceptional
circumstances, English law does consider jus tertii, as a good defence. These
circumstances are the following:
a) When the defendant defends the action on behalf of and by the authority of
true owner;
b) When he committed the act complained of by the authority of the true owner;
and
c) When he has already made satisfaction to the true owner by returning the
property to him.

ADVERSE POSSESSION
Adverse possession means the possession of a person whereby he claims an
exclusive right to the land of another person. Thus, if X has openly enjoyed an
unbroken possession of Y's land for a continuous period of twelve years or more, X
gets a good title to Ys land. In such a case, the true owner's title is extinguished by the
possessor, who has exercised adverse possession for the required period of time.
Title by adverse possession is an instance of a title by perfect negative
prescription. Just as positive prescription creates a right, negative prescrip-tion
destroys a legal right. In other words, a legal right is completely destroyed by negative
prescription.

CASES
The following English cases on possession will serve to clarify and exemplify
the concepts discussed above.
Cartwright v. Green (Desk repair case, (1802), 8 Ves. 405). - In this case, a
desk was given for repairs to a carpenter. The carpenter discovered some money in a
secret drawer, which he kept for himself. It was held that he was guilty of larceny. It
follows that the carpenter did not obtain possession of the money when he obtained
possession of the desk, but only at the time he discovered it and formed the intention
to convert the money.
R. v. Husdon (Mistaken cheque case, (1943) K.B. 458. - By a mistake of a
Government Department, X was posted a letter containing a cheque intended for Y. X

appropriated the cheque to his own use, and the Court held that he was guilty of
larceny. Although X came into possession of the letter innocently, the Court observed
that he did not acquire possession of the cheque until he became aware of its
existence.
Hibbert v. McKlernarn (Golf Ball Case, (1948) 2 K.B. 142. - Here, a person
took golf balls abandoned by the original owners while he was trespassing on the
ground of the Golf Club. It was held that he should be convicted, because when he
took the golf balls, they were in the possession of the Club, and it was immaterial that
noboy knew where they were lying, or how many balls were lying abandoned in the
Club premises.
Bridges v. Hawkesworth (Case of lost notes, (1851), 21 L.J.Q.B. 73).-In this
case, X found a parcel of notes on the floor of Ys shop. It was held that X had a better
title to them as against Y, as he was the first to acquire possession. Y had not
previously acquired possession, because he did not know of the existence of the notes
till X found them.
South Staffordshire Water Company v. Sharman (Gold rings case, (1896) 2 Q.
B. 44). - Sharman was given the job of cleaning out a pool belonging to a water
company and he found some gold rings in the mud at the bottom of the pool. It was
held that the water company was first in possession of the rings, and that therefore,
Sharman had not acquired any possessory title to the rings.
Armory v. Oalamirie (Chimney Cleaner's case, (1722) I Strage 505). -In this
case, the plaintiff, a chimney cleaner, found a jewel while cleaning a chimney, and he
took it to a goldsmith in order to ascertain its value. The goldsmith refused to return it
to him, and it was held that plaintiff had a better title to the jewel as against the
goldsmith.
Reg. v. Riley (Lamb case, (1853) Dears, 149). - Here, a person drove off with a
lamb not belonging to him, along with his own lamb without knowing that he was
doing so. After he discovered his mistake, he sold off the lamb with his own. The
Court held that he was guilty of larceny.

THE FUNCTION AND PURPOSE OF LAW:

JUSTICE, STABILITY AND PEACEFUL CHANGE
Most Jurists agree that law is an instrument of society to establish justice. But
there is not much agreement in defining justice. Generally, the term justice has two
meanings. In the wider sense, justice is synonymous with morality; but in the
narrower sense, it refers to one aspect of morality. In this sense, justice would mean
that the like must be treated alike. In other words, it means fair and equal treatment of
all.
Justice, in the sense of equality, has two aspects:
(a) Distributive justice, and
(b) Corrective justice.
Distributive justice works to ensure a fair division of social benefits and
burdens. The task of establishing distributive justice is primarily achieved through
Constitution-making and by legislation. The function of the Courts is chiefly to apply
these rules for the purpose or establishing corrective justice.
Distributive justice works to ensure a fair division of social benefits and
burdens amongst the members of a community, as for instance, that every person has
a right to the property legally acquired by him. Distributive justice thus serves to
secure a balance or equilibrium amongst the members of a society. This balance can,
however, be upset, as when
A wrongfully seizes Bs property. At this point, corrective justice will move
in to correct the disequilibrium when the court compels A to make restitution to B.
So far as distributive justice is concerned, there is one difficult problem. It is
true that distributive justice aims at arriving at a balance in the society, by providing
for equitable division of benefits and burdens and further by equal dispension of
justice. But while achieving that balance, another factor is to be taken into
consideration. In a society, there is conflict, not only between person and person, but
also between interest and interest. For example, the right to employment and the right
to property may conflict with each other. Then, society has to achieve a balance by
reconciling such conflict of interest.
Roscoe Pound calls this social engineering. Here, the function of law is to
satisfy, to the maximum extent, the desires, interests and claims of the various

members of the community, and thus achieve a smooth running of the machinery of
the society. According to this theory of social engineering, there are several interests
which are of a great advantage to a person, e.g., bodily security, freedom of speech
etc. Not all such interests are, however, protected - or sometimes even recognised - by
law. Thus, the right to privacy is not fully recognised by English law, even today.
Now, which interests should be recognised by law is a question which is answered
partly by sociology, partly by ethics, - and partly by law. Thus, the reconciliation of
competing and conflicting interests is the ultimate aim of social engineering.
When one speaks of equality and justice, one has to be very clear in one's
mind on one question. Equality has been defined as the like treatment of the like. Bat
the basis of grouping the people is the crux of the problem. Equality and justice can
be achieved only when people are grouped together for this purpose on a rational and
reasonable basis. This has been termed as reasonable classification for the purpose of
Article 14 of the Constitution of India (Right of Equality).
However, It cannot be said that Justice is the only possible or even desirable
goal of law. Indeed, the very idea of law represents a basic conflict between two
different needs - the need for uniformity and the need for flexibility. Uniformity is
necessary to ensure that there is certainty and predictability. If the rules of law are
fixed and generalised, the citizen can plan his activities with an ample measure of
certainty. Another advan-tage of uniformity is that the judge applies fixed rules, and
not his whim of the moment. Yet another advantage is the stability and security which
the social order derives from uniform and unchanging rules of law.
And yet, there is also a need for a certain degree of flexibility. The existing
rules may not provide for a border-line case, and indeed, no rule can make provisions
for every possible case. Some measure of discretion thus becomes valuable. Again,
flexibility is necessary to enable the law to adapt itself to social change. If the law, as
it exists, is unalterable, the necessary changes would have to come by revolution,
violence and upheavals. On the other hand, law that is capable of adoption, whether
by legislation or judicial development, allows for peaceful changes from time to time.
In conclusion, it can be said that the function of law is to achieve justice,
stability and peaceful change in a society.

Judicial Process and Reasoning

Normally, it is considered that the judicial process is one of deductive
reasoning. There is a principle of law that certain facts lead to certain legal
consequences. Then there is the ascertainment of the fact. Thirdly, the legal rule is
applied to the facts. Thus, it might appear that the judicial process is a mechanical
process. But it is not really so. It is possible that there may be some ambiguity in the
legal rule itself or the pattern of the facts may be slightly different. In such cases,
some kind of innovation or improvisation is necessary. In those circumstances, a
judge may have to take recourse to deduction or analogy, and it is also possible that
the judge is confronted with a new situation altogether. In such circumstances, the
judge can never take a formalistic approach. He has to improvise the law to meet the
needs of the changing society. In such circumstances, it is not the law that
determines, but it is what the judge considers as justice that tempers the law. Thus,
judicial process and reasoning is a complicated phenomenon.

DEFINITION OF LAW
DEFINITION OF LAW

Definition-Difficulties
Imperative Concept of Law
Austins Definition of Law
Law and Morality
Law and International Law
Criticism of Austin's Law
Hollands Definition of Law
Definition Analysed
Gray's Definition of Law: Criticism
Salmond's Definition of Law
Salmond-If Austinian
Elements of Salmonds Law
Criticism of Salmond's Definition of Law
H.L.A. Hard Definition of Law
Austins Inadequacies
Hart-Law Defined
(a) Primary and Secondary Rules
(b) Rule of Recognition
(c) Open Texture of Law
(d) Law and Morality
Lon L. Fuller-Definition of Law
Definition of Law in terms of Social Ends or Interests
Criticism
Definition of Law in Terms of Abstract Ideals
Criticism
Definition of Law and Historical Aspect

Criticism
Conclusion:

Definition-Difficulties
The problem of the definition of law is as old as Greek and Roman philosophy
itself. There have been conflicting and divergent views of the jurists regarding the
nature, concept, basis and functions of law. Dean Pound himself has given no less
than twelve concepts of law. Law has been regarded as a divinely ordained rule or a
tradition of the old customs or recorded wisdom of the wisemen or a philosophically
discovered system of principles which expresses the nature of things or as a body of
ascertainments and declaration of an eternal and immutable moral code, or as a body
of agreements of men in politically organized society, or as reflection of divine reason
or as a body of commands of the sovereign, or as a body of rules discovered by
human experience, or as a body of rules developed through juristic writings and
judicial decision or as body of rules imposed on men in society by a dominant class,
or as body of rules in terms of economic and social goals of the individuals.

Law can also be defined from the point of view of philosophers, theologians,
historians and social scientists. As there are different approaches of the various
schools, to the study of jurisprudence so there is no general definition of law which
includes all the aspects of law. In fact every jurists definition of law is tainted by the
approach of particular school to which the propounder of the definition belongs.
Indeed no definition of law can suit all times, all places and all societies. Again law
can be defined firstly, by its basis in nature, reason, religion or ethics: secondly by its
source-in custom, precedent or legislation, thirdly, by its effects-on the life of society,
fourthly, by the method-of its formal expression or authoritative application; fifthly by
the ends that it seeks to achieve. Therefore, it is not desirable to adhere rigidly to
anyone definition for the law is a social institution which like society changes
according to changing needs of society. Law as a body of rules for social control has
also to be distinguished2 from the rules of ethics or positive morality. Ethics differs
from law in as much as the former is a study of the supreme good. Ethics attempts to

lay down rules for supreme human conduct considered necessary at a particular time
and place. Ethics further stresses upon individual excellence whereas law concentrates
on social or general good of the community. Ethics tries to emphasize upon inner
motive or inner conduct of the individual, law on the other hand concerns with overt
acts or external conduct. However, this difference between ethics and law cannot be
stretched beyond a particular point. Law in fact cannot be devoid of ethics. Indeed.
ethical values of a society directly influence the nature of law. Of course the object of
ethics is to make individual perfectly good in every sense of the term whereas law
attempts to make individuals socially useful. Therefore, law derives inspiration from
ethics for shaping human values. Law itself, as such, has been described as having
minimum ethics. So all the rules of ethics are not the rules of law or vice versa. Yet
law and ethics; cannot be separated or isolated in the absolute sense of the term. Law
is always dependent upon ethics for its continuance and justification.

Law also may be distinguished from positive morality. Positive morality, like
law, emphasizes upon actual human conduct rather than ideal abstract notions.
However, there are some differences between the two concepts. A rule of law is
enacted, enforced and imposed by the State, a rule of positive morality is not imposed
by the State. Secondly, there is no sanction behind the rules of morality as is behind
the rules of law. They also differ in their content. The rules of law contain matters
which are deemed absolutely desirable or necessary for the good of the community.
The rule of morality contains all the things which ought to be for the good of the
individual or society. However, law and morality are interdependent upon each other.
Generally speaking it is true morality perfects law but sometimes it is law which
creates social morality. For instance in India through social legislation concerning
untouchables, backward classes and women a new social morality has evolved in due
course of time which has favorably changed the attitude of the dominant groups
towards the weaker sections of the Indian society.
In other words, law is inextricably mixed with ethics, morality and other
socio-economic phenomenon of the society. Law of course cannot be defined in strait-
jacket fashion nor can it be defined in absolute terms. However, scientific and
workable definition is necessary for logical understanding of law. It cannot be studied

as a brooding omniscience in the void. It has to take into consideration the social
values and other practical norms for regulating human behaviour in terms of human
needs and other social requirements. In fact before John Austin the concept of law
was not clear, certain and definite. It was mingled with other disciplines like
metaphysics, natural sciences, philosophy and theology. So its exact definition,
meaning and scope was vague and unascertainable. The credit of defining law
systematically for the first time goes to John Austin (1790-1859) who in his Province
of Jurisprudence Determined took pains to distinguish positive law from positive
morality and other laws.

Imperative Concept of Law

Austins Definition of Law
The work of the English Jurist John Austin (1790-1859) who expounded the
concept of Analytical Positivism making law as a command of the sovereign is as
epoch-making for English legal theory as Newtons theory of law of gravitation to
physical scientists. Austin developed logically a structure of legal system in which he
gave no place to values, morality, idealism and justice. He vigorously, rigidly and
scientifically created a legal system-a science of jurisprudence centered around
sovereign, command, duty and sanction.

a. Law and Society-Austin:

Austins main concern was to give a logically coherent definition of law as
distinguished from divine law and positive morality. Therefore, he sought the basis of
his law with reference to a society which could be said to be political and
independent as distinguished from all other societies-traditional, feudal or any other
form of primitive groupings of a people. In other words, Austin is mainly interested in
maturer, ampler or developed societies-a society consisting of a body of men who
habitually obey some determinate person or number of persons who themselves are
not in the habit of obedience to any other human authority. The Austinian system of
law, therefore, presupposes the existence of such a society.
Austin accordingly defines law as a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him. He divides Law

under two classes. First, law properly so called and the second, law improperly so-
called. The law properly so-called are described as commands of the sovereign and
all the rules emanating from the political superior are species of commands. However,
there are laws which resemble like laws are styled by Austin as laws improperly so-
called or laws by analogy or metaphor or positive morality for such laws are not
commands of the sovereign. They are not set by men as political superiors for human
conduct and are merely opinions or sentiments held or felt by men in regard to
regulation of human conduct. So such laws can be conveniently termed as positive
morality or positive moral rules, e.g., the rules of the club, fashion, public opinion,
international law, the rules of utility and religion, etc. The science of jurisprudence as
such is concerned with law properly or strictly so-called without regard to their
goodness or badness.

b. Laws properly so-called-Distinguished:

As stated above, Austin as an analyst wanted to exclude from the scope of law
other various forms of so-called laws described by Austin as laws improperly so-
called in order to determine the exact nature of law to be binding upon the people
irrespective of any consideration or value judgment. He, therefore, disengaged and
divorced all other so-called laws in order to build a logically self justifying and self-
sufficient system unmingled and unaffected by other disciplines or philosophy. As
such he divides law in three parts: first, law of God, i.e., law made by God to his
creatures; second, law made by man to man and third, laws of physical nature or
scientific laws, e.g., laws of gravitation, relativity, biological laws of human body etc.
As regards the law of God is concerned, Austin says what should be the relationship
between God and his creatures is not the concern of law or jurisprudence. This is
something other-worldly. So he rejects the metaphysical concept of law from the
purview of his jurisprudence. As regards the third type of laws is concerned, Austin
says such laws are improperly so-called for they do not immediately and directly
concern with. human conduct. The term law is extended to them by caprice or fancy.
According to Austin the rules of animal breathing or rules of blood circulation or
natural species cannot be equated with rules for human conduct in a society. So he

describes such scientific laws as laws improperly so-called or laws by analogy or

metaphor.
The second type of laws, as stated above, were divided by Austin in two
categories: (a) laws made by men in their sovereign political capacity to men who are
subjects or political inferiors and (b) laws made by men in their private individual
capacity to men as private persons. The former type of laws are termed by Austin as
positive laws or laws strictly so-called and the latter type of laws are described by him
as positive morality. The positive law or laws strictly so-called are obligatory and
legally binding upon the subjects for they are in the nature of commands backed by
sanction. The laws of positive morality are not legally binding upon the individuals
and are unaccompanied by sanction of the sovereign. Such laws depend for their
enforcement upon overwhelming majority sentiments or public opinion only. As such
rules of positive morality too are excluded from Austin's definition of law.

Law and Morality

Austin further a tempted to separate law from morality. He was of the view
that law is law because it is made by the sovereign and it has nothing to do with its
historical origin, ethical significance or moral validity. He excluded the notion of
goodness and badness from the purview of his law. For him law is neither concerned
with abstract natural ideal nor with social reform, social welfare and social progress
which is the concern of the science of legislation but not of law of the sovereign.
Buckland has correctly subsumed5 the Austinian concept of law as law is law since it
is made by the Sovereign, the Sovereign is Sovereign because he makes the law.

Law and International Law

Austinian concept of law is at once irreconcilable with international law. For
Austin international law is positive morality because it does not emanate from the
determinate sovereign and so is not binding on the people. Conversely the sovereign
itself is not bound by any law, it recognizes no authority whether internal or external
superior to itself. As international law cannot be defined as command over and above
the sovereign, international law at best is a positive morality-depending on the choice
of the sovereign to abide or not to abide by such law. It lacks also sanction. So

international law is not law properly so-called and, therefore, excluded by Austin
from the scope of jurisprudence.
Criticism of Austin's Law
1. Austin ignores completely the moral and ethical aspects of law. Morality
cannot be excluded from law since both of them have a close community
with the life of the people.
2. Law cannot be defined in terms of State. Historically law is older than
State. Del Vecchio suggests that those who define law in terms of the State
should be forced to study history before writing jurisprudence.
3. Kelsen also rejects the definition of law in terms of State. A primitive tribe
may have a legal order long before it has developed a State.
4. Austin was mainly concerned with the nature of law in which it is created
or enforced. However, the essence of law is its function rather than its
form. Law should be defined by the part it plays in the life of the society,
not by the historical accident that it is sometimes laid down by a sovereign.
We cannot say that there can be no law where there is no sovereign.
5. According to Sir Henry Maine in primitive communities like those of the
Homeric Age or Manu Age or of Iceland there was no sovereign to be
found nor any legislative command nor any definite sanction. Yet there
were laws in the form of themistes, judge-made law, customs, codes etc.,
which governed the life of the people. A strong Muslim ruler like
Allauddin and Ranjit Singh of Punjab were absolute or despotic yet they
could not ignore the customs or religious practices of the people.
6. Austin stressed too much upon sanction, i.e., a fear of evil or punishment.
However, laws are obeyed not merely because of sanction but by the
promise of reward. Psychologically it is not correct to say that sanction
alone makes people to obey law. Universal disobedience will rapidly
destroy the whole basis of the legal order. Law is obeyed because of its
acceptance by the community, and while the sanction plays its part in
dealing with a recalcitrant minority the reasons for that acceptance lay
deeper. Habit, respect for the law as such and a desire to reap rewards are
the factors equally important. Academic preoccupation with the sanction

leads to a false view of law. The idea of health does not at once suggest to
our minds hospitals, diseases, operations, etc. The best use or service of
medicine is the prevention of diseases, just as the real benefit of law is that
it secures an ordered balance which goes for to prevent disputes.
7. His definition is not applicable to conventions of the Constitution,
although conventions cannot be enforced in a court of law yet they are the
foundation of legal order. There is no sanction behind them yet they are
observed because it is recognized that if they are flouted the legal order
will break down.
8. His definition of law cannot apply to constitutional law which cannot be
called the command of the sovereign. As a matter of fact it is the
constitutional law of a country which defines the powers of the various
organs of the State.
9. The personal laws of the Hindus and Muslims are the creation of traditions
and usages and are not in the nature of command yet they have the force of
law and are recognized and accepted by the society.
10. Austin took no account of law as what it ought to be. He relied excessively
on logic by saying that law is law because it is made by the sovereign and
sovereign is sovereign because he makes the law.
11. Austin does not consider international law as law because it is not backed
by some authority. He calls it as positive international morality. However,
international law is law because ultimate sanction behind ordinary law is
public opinion, so the sanction behind international law is world public
opinion. Of course there is sanction of collective enforcement action to
compel a recalcitrant State to abide by the norms of international law but
as a last resort as provided in the Charter of the United Nations. Law is
enforced says Pollock On account of its validity. It does not because
valid merely become it is enforced by the State.
12. Austin unduly emphasized the imperative character of law. According to
Prof. P. G. Osborn enabling statutes, laws conferring franchise and rules of
judicial construction, procedure and customary practices cannot be said to
be commands.

Hollands Definition of Law

The next important jurist who followed John Austins concept and nature of
law is Thomas Erskine Holland. He wrote Elements of Jurisprudence in 1880 in
which he attempted to define law more scientifically and analytically than Austin
himself. According to him Law is a general rule of external human action enforced
by a political sovereign. Holland also measures or defines law with preference to
sovereign devoid of moral, ethical or ideal elements which are foreign to law and
jurisprudence.

Definition Analysed
1. General rule of external human action:
According to Holland law of the sovereign deals with the external human
conduct. It is not at all concerned with inner motives or feelings like fear which were
overemphasized by Austin. Such laws are not only declared but also enforced by a
determinate sovereign and the transgressor of law is exposed to ridicule, hatred or
coercion. As such law differs from the laws of fashion or honour for the latter depend
for their observance not upon the authority of the sovereign but indeterminate and
varying sentiments or feeling of a community.
Further, law has to be essentially general in character. It cannot be particular
or applicable to one individual. Law has to be general, universal and not like Austin's
commands which may be both general and particular.

2. Sovereign-Political authority:
Law must come from a determinate political authority which is either a
superhuman or a body of persons. However, by the terms sovereign political
authority Holland meant the State as a political institution both sovereign and
independent of any other State or institution. Rules set by such authority are called
laws properly so-called.
Austin had only emphasized on the promulgatory aspect of law. Holland takes
first step in pointing out the enforcement aspect of law and thus widens the concept of

Austin's definition of law. However, Holland's approach to law is in keeping with

Austinian concept of law and so the Same criticism which is levelled against Austin
can be levelled against Holland also.

3. Definition of Law-Gray:
Another important follower of Austin is John Chipman Gray of the United
States of America. He says Law of the State or of any organized body of men is
composed of the rules which the courts, that is, the judicial organs of that body, lay
down for the determination of legal rights and duties. In other words, law is what the
courts lay down in determining legal rights and duties of the citizens. Gray is not an
Austinian. He is more or less a functionalist defining law in terms of judicial process.
However, one can find Austins sovereign in the Supreme Court of United States of
America which alone could declare the acts or statutes of the Congress as
constitutional or unconstitutional. In fact the Supreme Court of America emerged one
of the supreme powers on the American political scene-especially during 1930s. It
declared the National Industrial (Recovery) Act, 1933 ultra vires of the Constitution
and violative of due process clause of the Constitution. Thus statute law was not law
until it had been interpreted by the courts-thereby pointing out that law is law because
it is laid down by the Supreme Court. In other words, law is what half a dozen old
gentlemen judges say, for these half a dozen old gentlemen form the highest judicial
tribunal of the country-a simple variation of Austins concept of law.

Gray's Definition of Law: Criticism

1. Gray like Austin- is concerned with the nature of law rather than its purposes
and ends.
2. He ignores the idea of justice or ethics. He merely says courts are concerned
solely with determination of strict legal rights and duties irrespective of social
expectations of economic justice or welfare or protector and defender of
human rights.
3. His definition is too revolutionary as it does not take into account statute law
and more especially the newly enacted law which no court has yet interpreted.
4. His definition does not include administrative tribunal or administrative law.

5. He excludes international law also from his definition of law.

6. The task of the court is very much limited in determination of legal rights or
legal relations. Is it not the function of the courts to translate the demands,
interests, claims, etc. of the community into a reality through judicial
processes or value judgements? The courts have to look around in interpreting
law.

Salmond's Definition of Law

Another important jurist of the Imperative School of Jurisprudence is Sir John
Salmond from New Zealand. He like Gray defines law in terms of judicial process. He
has also substituted for the political sovereign the courts of law as real source of law.
He says in England much of the law is made by the courts besides the legislature. But
all law, however, made is recognized and administered by the courts, and no rules are
recognized and administered by the courts which are not rules of law. To understand
the nature of law one should go to courts and not to the legislature. So Salmond
observes The law may be defined as the body of principles recognized and applied by
the State in the administration of justice. In other words, the law consists of the rules
recognized and acted on by the courts of justice.

Salmond-If Austinian
Before we consider Salmond's definition of law it would be appropriate to
discuss how far he is Austinian. Salmond is Austinian in the sense that he correlates
law with the State as the source of law although he avoids the controversy as to legal
and political sovereignty. He only emphasizes the authority of the State-especially the
courts who act upon the rules of law. It is in the judge that we find Austins sovereign.
However, to some extent he departs from Austin. He does not say law is a command
of the sovereign nor he rejects the notion or purpose of law-the administration of
justice. In fact he improved the variety of the definition of law of the Analytical
School of Jurisprudence. Salmond associated law with the element of right or justice,
an aspect totally excluded by Austin. Salmonds definition of law indeed attempts to
remove all the shortcomings of the definition of law propounded by Austin and his
followers.

Elements of Salmonds Law

1. Meaning of the term 'Law':

The expression Law as defined by Salmond means the civil law i.e. the law
of the State, or law of the country or law of the lawyers and the courts. Law is defined
with reference to State. It is not an ideal or abstract law. It is positive and actual law
with which the ordinary lawyers are concerned with, i.e., the law of the land. In other
words, law consists whole body of legal system or legal order which actually
governed legal relationship between individuals in the administration of justice.

2. Recognized and Applied:

Salmond emphasizes that law must be recognized and applied by the State,
i.e., courts in the administration of justice. However, there are laws which are only
recognized. but not enforced. According to Salmond such laws are not laws. He is of
the view that laws are laws because they are recognised and applied by the courts. But
this is not a correct view. There are laws e.g. the prohibition laws in the United States
of America, and India, the Indian Dowry Act, 1961 the Directive Principles of State
Policy under the Indian Constitutor., the decree of the restitution of conjugal rights,
the Child Marriage Restraint Act, 1929 are some examples of law which cannot be
enforced because of prevailing social situation or lack of ready social acceptance of
such new norms of human behaviour. Yet they are all laws. In this respect Salmond's
definition of law is defective as much as it envisages like that of Austinian law is law
because it is recognized and applied by the State and does not take into consideration
the social disapprobation as an important factor for non-enforcement of law.
3. Administration of Justice:
According to Salmond the purpose of law is the administration of justice. He
says justice should be within the framework of law. He does not mean by it the ideal
or abstract justice. He says that law must be understood with reference to justice. It is
a means towards the attainment of justice and he defined law with reference to its
ends. Law is merely the instrument while justice is the end the primary purpose for
which the State exists. Law is not right alone or might alone, but the perfect union of

the two. It is justice speaking to men by the voice of the State. In other words,
Salmonds theory of law corresponds to its prevailing legal and political doctrine of
the rule of law which presupposes equality between men irrespective of social and
economic distinctions of caste, creed, religion or, status etc.

Criticism of Salmond's Definition of Law

1. Salmond says law is an instrument by which justice can be achieved. Paton while
agreeing with Salmond says that the purpose of law is essential to an
understanding of its real nature but the pursuit of justice is not the only purpose of
law; the law of any period serves many ends and those ends will vary as the
decades roll by. To seek for one term which may be placed in a definition as the
only purpose of law leads to dogmatism. In other words, ends of law vary and
change according to changing social requirements. According to Levy Ullmann
law may have many ends, e.g., security, order, general good and the greatest
happiness of greatest number or restructuring and revival of age-old cultural and
moral values and ideals to suit the contemporary needs.
2. Salmond did not define the expression 'justice'. Keeton says what has been
considered to be just at one time has frequently not been so considered at another.
Is the protection of private property or is its abolition a principle of justice? If we
say, with Lord Wright, that justice is that which appears just to the reasonable
man, the reasonable man evidently has different views on the matter at different
times and places and there may even be important differences in the point of view
between different reasonable men within the same community.
3. Dean Pound has criticised the definition of Salmond as reducing law to a mass of
isolated decisions and the law in that sense ceases to be an organic whole.
4. According to Lord Wright although the guiding principle of deciding cases is to
do justice-that is justice according to law. But I have not found a, satisfactory
definition of justice. Jethro Brown also agrees with Wright in this regard.
5. His definition applies only to case law and not to statute law. Generally speaking a
statute is law as soon as it is passed. It does not have to wait for recognition by the
courts before becoming entitled to the name law. Courts recognize a statute
because it is law. It is not merely law because the courts recognize it.

6. Salmonds definition of course does not cover inter-national law nor does it cover
administrative law which is enforced administratively and not judicially.

Inspite of the above defects it may be said to the credit of Salmond that he has
brought about prominently the purpose of law i.e. justice in his definition. He has
associated law with its essential element of right and justice-an aspect which was
totally excluded by Austin. He does not base his definition on the command of the
sovereign nor he excludes customs, public opinion and religion which has its impact
on law. He also does not exclude the ethical aspect of law. And above all Salmonds
definition has further merit in the sense it stands as a landmark and a challenge to
those who propagate the establishment of social justice independent of law i.e. the
Marxists. He showed that justice can be established through the rule of law and not
necessarily by violence only.
For the twenty-first century Salmonds definition of law contains all the necessary
ingredients of a just and humane law indispensable for a democratic and egalitarian
society where individual rights, freedoms and dignity is end or goal of law subject to
overall good of the society.

H.L.A. Hard Definition of Law

There is a gap of almost of a century between John Austin (1790-1859) and
Professor H.L.A. Hart who is the leading legal philosopher of positivistic theory of
law in contemporary England. In his key work The Concept of Law, 1961 Professor
Hart has re - determined the contours of positive law which were determined by John
Austin in his classic work Province of Jurisprudence Determined 1832. The main
theme of Professor Hartss The Concept of Law is to pin-point certain glaring shot
comings and defects which Austin himself could not foresee or which he could not
resolve. Harts main objective of focussing on such inadequacies of Austins theory of
law is aimed at our further understanding of law, coercion and morality which also
form the basic rubric of positivistic theory of law in the twentieth century.

Austins Inadequacies

(1) According to John Austin the notion of law as command carries with it
threat, physical coercion or intimidation necessary for compliance. Professor Hart
says the picture of law that Austin wants to convey is more like the case of a gunman
making demand backed by threat than a sergeant giving an order to a subordinate. He
says law is not a gun-man situation like handover the money or will shoot you; (2)
Austin's concept of law, says Hart, is in the nature of penal or criminal statute or with
laws that impose penal duties. Whereas according to Hart there are sometimes power
conferring law or rules like that of marriage, will or contract which do not impose
penal duty; (3) Professor Hart also rejects the view of John Austin who treats nullity
as sanction. Hart says sanction can be distinguished from nullity because unlike
nullity sanction is intended to discourage or suppress certain behaviour. However,
Hart says nullity could never fit in this model; (4) Another anomaly of Austin,
according to Hart, is that sovereign is considered above law with unlimited and
illimitable power. On the other hand, he says, in all legal systems particularly in
federal countries like US, Australia and India where sovereignty is divided and the
sovereign is subject to or bound by the Constitution, by law and moral, social and
external compulsions.

Hart-Law Defined
As already observed Hart gives an alternate notion of law as substitute to that
of John Austin avoiding his pit-falls and projecting a definition more sociological and
realistic in spirit which the so-called father of analytical jurisprudence denied and
decried. Hart on the other hand has sensitised the twentieth century positivists of the
need of linking law with social ethos and values without making it purely formal in
form and coercive in content. As to the central question as to what the law is Hart
first rejects Austins concept of law as command which Austin considered Key to the
science of jurisprudence. On the other hand, Hart in his The Concept of Law says
that law is a system of rules-the primary and the secondary rules their union or
combination may justly be regarded as the essence of law. Thus a union of primary
and secondary rules is the most important feature or essence of a legal system. The
two types of rules the union of which Hart claims provides the key to the science of

jurisprudence are described by him as primary rules and secondary rules-the former
duty imposing and the latter power conferring rules.
(a) Primary and Secondary Rules
Hart conceives the picture of a primitive community without legislature,
courts or officials. Such a society is living what Hart calls pre-legal state where
social control is based on a regime of unofficial rules. Such form of social control in
primitive society suffer from three defects which require supplementation. The first is
uncertainty as to what the rules are or their scope. The second defect of such rules is
that they are static in character as there is no method to change such rules according to
changing circumstances either eliminating old rules and introducing new ones. The
third defect of the regime of primary rules of primitive society suffer from
inefficiency the diffuse social pressure by which rules are maintained.
The remedy for these defects consists in supplementing the primary rules of
obligation with secondary rules which Hart terms a step from the pre-legal into legal
world. The three remedies introduced by him to remove the defects of the primary
rules is sufficient to bring about a legal system thus in this way law is viewed as the
union of primary and secondary rules. The remedy for uncertainty is the introduction
of what Hart calls a rule of recognition. Such a rule may be in the form of written
document or carved on some public monument, a rule of conclusive evidence of the
identification of primary rules of obligation. This disposes the doubts or uncertainty
about as to what the rules of the community are and what their scope is. The remedy
for the defect of static quality of primary rules is the introduction rules of change
which empower certain individuals to introduce new rules relating to the conduct of
the members of the group and to eliminate old rules. So remedy the defect of
inefficiency secondary rules of adjudication are introduced which among other things
confer power to ascertain whether rules have been violated. Thus Hart has discovered
in the union of primary and secondary rules the most important feature of his legal
system-the key to the science of jurisprudence.

(b) Rule of Recognition

Professor Harts thesis that a rule of recognition exists in every legal system is
the central feature of his positivistic legal theory. It is the rule of recognition, Hart

asserts, that distinguishes which things are law and which are not and that the criteria
or means for identifying the valid law. The rule of recognition, Hart argues, is the
ultimate-in the sense the validity of other rules is to be determined in the rule of
recognition itself. The rule of recognition Hart concludes exists only as a complex
but normally concordant, practice of courts, officials and private persons in
identifying the law by reference to certain criteria. Its existence is a matter of fact. In
short, what Hart has done here is to make the rule of recognition sovereign in a way
which is strictly analogous to the sovereignty of the determinate persons constituting
the Austinian sovereign. Rules of recognition like Austinian sovereign just exist while
the latter die the former fade away into disuse.

(c) Open Texture of Law

There is one further aspect of Professor Harts positivism which relates to
judicial law making through decisions. Hart is aware that sometimes cases or situation
may arise that are no1 clearly provided or covered by the rules of law. This is due to
large measure what he calls the open texture of law the penumbral areas ~n every
rule of law where it is not clear what the rules require. In cases of this type, Hart says,
judges have a limited discretion to decide whether rule is to be applied or not. This
discretion, however, is limited must be conceived in positivism as permitting judges
to look outside the law for standards to, guide them in supplementing the old legal
rules or creating new ones to meet the needs or changing situations and times. Thus
extra legal moral standards become appropriate in statutory and constitutional
interpretation of law.

(d) Law and Morality

As to relationship between law and morality Hart's position is that every viable
legal system must satisfy certain minimal moral requirements. Hart in his The
Concept of Law stresses that law and moral rules must satisfy minimal content of
natural law: These are: (i) human vulnerability i.e. the basic character of law and
morals is to restrict use of violence in killing or inflicting bodily harm; (ii)
approximate equality, i.e., human beings are approximately equal in strength, and
intelligence; (iii) limited altruism i.e. human beings are

. not predominantly selfish nor altruistic but a bit of each; (iv) limited resources which
makes the institution of property necessary and (v) limited understanding and
strength of will making sanction necessary. These are natural facts for, survival and
both law and morality must have certain content of it.

Lon L. Fuller-Definition of Law

Professor Lon L. Fuller of Harvard University has attacked analytical
positivists for their separation of law from morals. Fuller says analytical positivists
insist on drawing a sharp distinction between law as it is and law as ought to be. This
is done to purge or purify it from what Kelsen calls a wish law who excludes ethical
or moral content from law. To serve this end the positivists neatly separate and draw a
wall of separation between is and ought. Fuller in his book The Morality of Law
(1964) says it is difficult to draw such line between law and morality as law cannot be
without its what he calls internal morality and external morality. He maintains that
the purpose of a legal system is to subject human conduct to governance of rules. Law
is not a mere data or fact but a purposive effort to subject human conduct to rules. It is
an activity that is the product of a sustained purposive effort. A legal system must
not only be created but also be maintained and eight conditions are necessary, says
Fuller, if a system of legal rules is to be created and maintained. In particular Fuller
asserts the laws must not be (1) ad hoc, (2) non-publicised, (3) retroactive, (4)
incomprehensible, (5) contradictory, (6) require the impossible, (7) introduce frequent
changes and (8) perpetuate a failure of congruance between rules and their actual
administration. A ruler who tried to subject human conduct to the governance of rules
but failed to fulfill these conditions would fail in his purpose; hence fulfillment of
these conditions is necessary.
These conditions constitute what Fuller calls the internal morality of law. The
internal morality of law is contrasted with external morality of law in that the eight
conditions are not concerned with any specific topics of law making, such as
polygamy, the study of Marx, the worship of God, the progressive income-tax or the
subjugation of women. The eight conditions thus form a procedural version of
natural law-procedural because nothing has been said about the context of the rules,
and a version of natural law because:

a total failure in anyone of these eight directions does not simply

result .in a bad system of law results in something that is not properly
called a legal system at all, except perhaps in the Pickwickian sense in
which a void contract can still said to be one kind of contract. Certainly
there can be no rational ground for asserting that a man can have a
moral obligation to.
According to Fuller the idea is that if a ruler tries to create a legal system and
fails to meet the eight conditions (or even one of them) then it is not just that he has
created a bad legal system, but that he has created none at all. It is for this reason
Fuller claims it is impossible if the eight conditions were satisfied in Nazi Germany.
On the contrary all the eight conditions were violated and that, therefore, during
Hitlers regime there was no law at all in Nazi Germany. In short Fullers eight
procedural conditions are moral requirements that must be satisfied if there is to be a
law at law. Likewise it can be also said that during the Internal Emergency in India
1975-76 the Maintenance of Internal Security Act (MISA) etc. had violated all the
eight conditions of Fullers version of natural law. On this analogy can it be said that
one or two lawlessness of law India had not only an unjust law but lacked a valid
legal system at all. Like Radbruch and Fuller in India, Justice Khanna was demanding
initiative from the Court not to be insensitive to moral values and human rights as
enshrined in the Constitution. The positivistic approach of the Court had rendered
people the victim of unjust law which lacked all the elements of morality of law-
internal and external. Chief Justice Ray, Justice Chandrachud, Justice Bhagwati and
Justice Beg constituting the majority decision in Habeas Corpus ease favoured the
blanket suspension of the writ of habeas corpus by expounding the preventive
jurisprudence - a variant of analytical positivism. As Chief Justice Ray asserted.
'Liberty is itself the gift of the law and may by the law be forfeited or abridged.
However, the Prevention of Terrorists Ordinance (POTO), 2001 cannot be said to be
in any way a violation of human rights or natural law as its principal objective is to
protect and defend the country from terrorist and subversive criminal acts of Islamic
fundamentalists and in no way can be said violative of Prof. Fuller's version of natural
law.

Definition of Law in terms of Social Ends or Interests

As already stated that law can be defined not only in terms of command or
judicial process but in terms of needs of the community life. In the twentieth and
twenty-first centuries we see the beginning of functional and relativist approach. With
the advance of science and technology the, theory of law has been secularized and has
become more pragmatic and realistic in terms of material needs .of human. beings.
Old definitions, concepts, and theories of law are being discarded as unnecessary,
undesirable and incorrect for resolving new situations and conditions. A functional
theory of law is not concerned with the ideal or nature or basis of law. It is more
concerned how it works in resolving conflicting interests. As such, law is considered
as a social institution to satisfy social wants-the claims, demands and expectations
involved in the existence of civilized society. No formal definition of law, therefore,
is necessary or desirable or even possible. For instance, Dean Pound defines law in
terms of maximum satisfaction of human wants, demands and interests. Even before
Dean Pound, Bentham, Ehrlich, and Ihering defined law in terms of social ends
without bothering for a formal definition.

Criticism
1. This definition of law is pragmatic in the sense that it does not provide any
method for evaluating the relatively pressing social interests from that of lesser
ones.
2. The above definition is not much concerned with justice according to law. Justice
has to be achieved either through law or administratively.
3. The law becomes more a hunch of the individual for balancing conflicting
interests.

Definition of Law in Terms of Abstract Ideals

The law has also been studied in terms of higher ideals and abstract values
since the times of ancient Greeks, Romans and Hindus. The jurists in different legal
systems emphasized the ethical or moral view and tried to set up an ideal of human
conduct. As such law has been defined in terms of ideal natural law or physical law
by the Greeks, in terms of human reason by the Romans and in terms of Dharma by

the Hindus. Thus, a philosophy of law in terms of ideal values of eternal immutable
and everlasting character emerged to maintain or change existing legal and political
institutions. Cicero, Grotius, St. Aquinas, Duguit, Locke, Rousseau, Kant, and in
modern times Stammler and Radbruch have given a formal definition of law to suit
the exigencies of each period and time. The quest for justice, equality and ethical
values as ultimate ends of law has been the theme of these various jurists.

Criticism
1. The jurists of the natural law philosophy do not take into consideration the
immediate realities of life. Their approach towards law and society is much
more philosophical or abstract than practical.
2. They are more concerned with the form of law rather than its content or
objective facts in relation to life as it exists. They do not bother about the
content of justice or human values.
3. They provide no machinery or method for the realization of ideals set for the
individuals. Thus it is an unscientific theory of law.
4. Law cannot be defined with reference to abstract ideals only. Law is a social
institution for maximum satisfaction of human needs and wants, etc.

Definition of Law and Historical Aspect

Likewise law can be defined in the historical sense. According, to Historical
Jurisprudence law can be understood only with reference to its growth, origin and
development. So law is regarded as custom and usages only. Of course jurists like
Savigny, Sir Henry Maine, Vinogradoff and Maitland etc., limit or restrict law within
the confines of past history and traditions.

Criticism
1. It is incorrect to say that law is only customs.
2. The above definition does not take into consideration other socio-
psychological factors that shape and make law as an instrument of social
change.

3. The above definition is inadequate and wrong in as much as it is inapplicable

to modern times.
4. It takes into consideration only One aspect of law which is most defective and
incorrect too.

Conclusion:
The above manifold aspects of the definition of law are correct in so far as
each aspect embodies the accepted values and goals of human society at different
periods and in different countries. Hence the study of every aspect becomes not only
necessary but useful also for a clearer and broader understanding of the basic
perspectives of law. To define law with reference to one aspect is not only incorrect
but also inadequate for law is a dynamic institution for achieving the set-social goals.
Hence the above approaches are complementary and supplementary to each other.
However, in the words of Levy-Ullmann a definition of law should have two
aims; Firstly to make precise the meaning of law, and secondly, to call up in the mind
of the reader a true picture of law and its operation. Thus Paton gives a more
sociological and pragmatic enunciation of the concept and meaning of law. He says
the existence of law pre-supposes a community, implies in the community is the
acceptance of a set of values dealing with fundamental issues on which the existence
of that society depends.