JURISPRUDENCE

SEMESTER – V

JULY 2, 2022
 Table of contents
Contents
Module – 1 ................................................................1
Legal system in ancient India ...............................1
Greek law - Ancient Greece ................................25
Roman Law .........................................................30
Law, Morals, Ethics and Justice .........................37
Nature of law.......................................................54
Functions of law ..................................................56
Introduction to Jurisprudence .............................58
Module – 2 ................................................................1
Schools of Jurisprudence ......................................1
Western thoughts and jurisprudence ...................34
Dharma and Indian Jurisprudence ......................42
Social transformation and social justice .............49
Similarities and differences.................................55
Module – 3 ................................................................1
Sources of law .....................................................10
Administration of justice.....................................24
Theories of justice ...............................................38
Module – 4 ................................................................1
Rights and Duties ..................................................1
 Hohfeld’s Theory of Jural Relations ...................16
Possession ...........................................................22
Ownership ...........................................................27
Relation between Possession and Ownership .....33
Module – 5 ................................................................1
Liability .................................................................1
 1

Module – 1
Legal system in ancient Indiai
1.1. Introduction
History of Judicial system in India can be classified
in to III stages, (i) Judicial System in ancient India i.e Pre-
Islamic invasion (ii) Judicial System in Medieval Age (iii)
Judicial System in British Rule. For our discussion we
shall take first stage.
India has the oldest judiciary in the world. No other
judicial system has a more ancient or exalted pedigree. But
before describing the judicial system of ancient India I
must utter a warning. The reader must reject the colossal
misrepresentation of Indian Jurisprudence and the legal
system of ancient India by certain British writers. I shall
give a few specimens. Henry Maine described the legal
system of ancient India "as an apparatus of cruel
absurdities". An Anglo-Indian jurist made the following
remark about what he called "the oriental habits of life" of
the Indians before the British turned up in India: "It
(British rule in India) is a record of experiments made by
foreign rulers to govern alien races in a strange land, to
adapt European institutions to Oriental habits of life, and
to make definite laws supreme amongst peoples who had
always associated government with arbitrary and
uncontrolled authority."
Alan Gledhill, a retired member of the Indian Civil
Service, wrote that when the British seized power in India,
 2
"there was a dearth of legal principles." For Bernard Cohn,
the ancient constitution rendered Indian history as antique,
static and theocratic.
These statements are untrue. It is not for me to guess
It is not for me to guess why they were made. They may
be due to sheer ignorance, or imperialist self-interest, or
contempt for Indian culture and civilization which was a
part of the imperialist outlook which dominated British
Jurists, historians, and thinkers in the heyday of
imperialism. But the effect of this misrepresentation,
which has few parallels in history, was to create a false
picture of the Indian judicial system both in India and
outside. These are the words of Hon’ble Justice S. S.
Dhavan High Court, Allahabad; it is true that Legal
System in ancient India was much better and matured that,
impartial English Historians themselves admitted its
superiority. Whereas others as mentioned above, in their
utter ignorance or with a view to defy Indian culture and
thereby dominate Indian civilization distorted, by creating
false impression as to social conditions of pre-British
India.
1.2. Judicial System in Ancient India
The concept of Dharma that ruled Indian civilization,
from Vedic period up to Muslim invasion from King to his
last servant everyone was bound by Dharma, The word
Dharma is derived from "dhr" to mean to uphold, sustain
or nourish. The Seers often use it in close association with
‘rta’ and ‘satya’. Sri Vidyaranya defines ‘rta’ as the mental
perception and realization of God. The Taittiriya
 3
Upanishad also uses it with ‘satya’ and ‘dharma’. It
exhorts students to speak the truth and practice dharma
(Satyam vadha: Dharmam chara). According to Sankara
Bhagavatpada ‘satya’ means speaking the truth and
‘dharma’ means translating it (Satya) into action.
In this regard, the explanation given by
Sri.K.Balasubramania Aiyar is relevant: "An analysis of
the significance of these three words (rta, satya and
dharma) brings out clearly to us the fundamental basis of
dharma as the ideal for an individual. While ‘rta’ denotes
the mental perception and realization of truth and ‘satya’
denotes the exact true expression in words of the truth as
perceived by the mind, dharma is the observance, in the
conduct of life, of truth. In fact, dharma is the way of life
which translates into action the truth perceived by the man
of insight as expressed by him truly. In short, ‘rta’ is truth
in thought, ‘satya’ is truth in words and ‘dhrama’ is truth
in deed."
Manusmriti written by the ancient sage Manu
prescribes ten essential rules for the observance of
Dharma: Patience (dhriti), forgiveness (kshama), piety or
self control (dama), honesty (asteya), sanctity (shauch),
control of senses (indraiya-nigrah), reason (dhi),
knowledge or learning (vidya), truthfulness (satya) and
absence of anger (krodha). Manu further writes,
"Nonviolence, truth, non-coveting, purity of body and
mind, control of senses are the essence of Dharma".
Therefore dharmic laws govern not only the individual but
all in society
 4
Dharma is generally mean ‘principle of
righteousness’ or ‘duty’, principle of holiness and also the
principle of unity. Yudhishthira says in his instructions to
Bhishma that whatever creates conflict is Adharma, and
whatever puts an end to conflict and brings about unity
and harmony is Dharma. Anything that helps to unite all
and develop pure divine love and universal brother
hoodness is Dharma. Dharma advocates if the
Paramatman is to draw us unto himself we must, without
fail; perform our duties to him as well as to the world. It is
these duties that constitute what is called dharma. Again,
it is dharma that serves us when we dwell in our body and
when we cease to dwell in it. It serves us in life and
afterlife. There need be no doubt or confusion about the
dharma we ought to follow. We are all steeped in the
dharma that our, great men have pursued from generation
to generation.
They have inwardly realized eternal beatitude and we
know for certain that they lived without any care, unlike
people in our own generation who are always discontented
and are embroiled in agitations and demonstrations of all
kinds. All we need to do is to follow the dharma that they
practiced. If we tried to create a new dharma for ourselves
it might mean trouble and all the time we would be torn
by doubts as to whether it would bring us good or whether
it would give rise to evil. It is best for us to follow the
dharma practiced by the great men of the past, the dharma
of our forefathers. It does not mean that ‘Dharma’ is
immutable; ‘Dharma’ has to two aspects one ‘Sanatana
Dharma’ another is ‘Yuga Dharma’ later is valid one for
 5
an age. The Smiritis themselves recognize this principle of
social change, Manu says, “There is one set of dharma for
men in the kritayuga; a different set for each of tretayuga,
dvapara and kaliyugas; the dharma change according to
the change of yuga. “The Hindu (i.e Sanatana Dharma)
view makes room for essential changes. There must be no
violent break with social heredity, and yet the new
stresses, conflicts and confusions will have to be faced and
overcome; while the truths of spirit are permanent the
rules change from age to age”.
Dharma is unique blend of rigidity and flexibility it
protects eternal principles and accepts continued valid
traditions, Shurtis stands for universal, eternal, and
fundamental principles and Smiritis stands for a group of
values derived from these principles and finding their
expression in limited, temporary and relative field of
social life. Swami Vivekananda said, “We know that, in
our books, a clear distinction is made between two sets of
truths. The one set is that which abides forever, being built
on the nature of man, the nature of soul, the souls’s
relation to God and so on. The other set comprises the
minor laws, which guide the working of our everyday
life…… They belong more properly to the puranas, to the
Smiritis, and not the shruti…..custom of one age, of one
yuga, have not been the customs of another, and as yuga
comes after yuga they will have to change”.
Henry Maine classified Indian Society and its legal
system as ‘Static’, this is because of his utter ignorance he
might have relied his counterpart’s explanation (distorted)
 6
rather than understanding Indian Society as it stood, in
India the King himself was subject to the law; that
arbitrary power was unknown to Indian political theory
and jurisprudence and the king’s right to govern was
subject to the fulfillment of duties the breach of which
resulted in forfeiture of kingship; that the judges were
independent and subject only to the law; that ancient India
had the highest standard of any nation of antiquity as
regards the ability, learning, integrity, impartiality, and
independence of the judiciary, and these standards have
not been surpassed till today; that the Indian judiciary
consisted of a hierarchy of judges with the Court of the
Chief Justice (Praadvivaka) at the top, each higher Court
being invested with the power to review the decision of
the Courts below; that disputes were decided essentially in
accordance with the same principles of natural justice
which govern the judicial process in the modern State
today: that the rules of procedure and evidence were
similar to those followed today; that supernatural modes
of proof like the ordeal were discourage; that in criminal
trials the accused could not be punished unless his guilt
was proved according to law; that in civil cases the trial
consisted of four stages like any modern trial – plaint,
reply, hearing and decree; that such doctrines as Res
Judicata (prang nyaya) were familiar to Indian
jurisprudence; that all trials, civil or criminal, were heard
by a bench of several judges and rarely by a judge sitting
singly; that the decrees of all Courts except the King were
subject to appeal or review according to fixed principles;
that the fundamental duty of the Court was to do justice
 7
"without favor or fear".
1.2.1. Rule of Law in Ancient India
The British while justifying their colonial rule in India
claimed Indians lacked civilized system of self rule and
their presence in this country gave India a sense of justice
and Rule of law. Many Indians today held these views in
their heart. These views are not only incorrect but they are
blatant lies. In fact there was no match for Rule of law that
existed in ancient India; even Englishman’s Rule of Law
looks too conservative before that lofty ideal of ancient
Indian rule of law. In the Mahabharata, it was laid down
"A King who after having sworn that he shall protect his
subjects fails to protect them should be executed like a
mad dog."
"The people should execute a king who does not
protect them, but deprives them of their property and
assets and who takes no advice or guidance from any one.
Such a king is not a king but misfortune." Kautilya
describes the duties of a king in the Arth-shastra thus : "In
the happiness of his subjects lies the King’s happiness; in
their welfare his welfare; whatever pleases him he shall
not consider as good, but whether pleases his people he
shall consider to good."
It is ironical, that in a country where ‘King can do no
wrong’ principal is in existence, how dare they may be to
conclude Indian ancient legal system is full of absurdities,
The so-called progressive politician, who treats
Indian history as a book no longer read, tells us that we
 8
must look forward and not backward; that we can no
longer build as Akbar built; that India can gain little or
nothing by studying her own past; that East must be west
and forget that she was East. Pretending to be a real with
a scientific political programme based upon actualities, he
is ignorant of the fundamental economic and social
conditions by which a prudent and far-seeing State policy
must be governed and blind to the things of everyday
Indian life which pass before his own eye. The logic of
history, ancient or modern, Indian or European, is lost
upon him…………. The British factory-hand and dweller
in city slums sings when he goes to war because war is for
him a release from servitude and misery often far more
degrading than the Indian caste system at its worst. He
does not sing in times of peace. He is then chained down
to a daily life in which there is no joy or freedom—the
slavery of modern industrialism. He struggles vainly to
free himself from it by the organization of trade unions,
and only adds to the political machine another form of
tyranny which often is a menace to the whole imperial
fabric8. This what the observation made by great English
Historian E.B. Havell.
In the heyday of imperialism defying observation
were made about Indian Legal system by some the
European Historians, Prof. J.S.Patil in his discourse
always reminds us, that Historians of Europe always used
to see India through their English glasses, for this reason
there observations remained far from reality. In India, the
concept of Rule of law can be traced to Upanishad. It
provides that the law is the king of kings. It is more
 9
powerful and rigid than the kings. There is nothing higher
than law. By its powers the weak shall prevail over the
strong and justice shall triumph. Thus, in monarchy, the
concept of law developed to control the exercise of
arbitrary powers of the monarchs who claimed divine
powers to rule. In democracy, the concept has assumed
different dimension and means that the holders of public
powers must be able to justify publicly that the exercise of
power is legally valid and socially just.
1.2.2. Judiciary in Ancient India
Sacred law (Dharma), evidence (Vyavahára), history
(Charitra), and edicts of kings (Rájasásana) are the four
legs of Law, of these four in order: the later is superior to
the previously mentioned. Dharma is eternal truth holding
its sway over the world; Vyavahára, evidence, is in
witnesses; Charitra, history, is to be found in the tradition
(sangraha), of the people; and the order of kings is what is
called sásana (legislations). These principles of were
administered by Court, in ‘Sangrahana’, ‘ Karvatik’,
‘Dronamukha’, and ‘Stháníya’, and at places where
districts meet, three members acquainted with Sacred Law
(dharmasthas) and three ministers of the King (amátyas)
shall carry on the administration of Justice. ‘Sangrahana’
is centre for 10 villages, ‘Karyatik’ for 200 Villages,
‘Dronamukha’ for 400 villages and ‘Sthaniya’ for 800
villages. This arrangement of judiciary suggests that there
were sufficient number of Courts at different levels of
administration, and for district (Janapadasandhishu) there
were Circuit Courts.
 10
In villages, the local village councils or Kulani,
similar to modern panchayat, consisted of a board of five
or more members to dispense justice to villagers. It was
concerned with all matters relating to endowments,
irrigations, cultivable land, punishment of crime, etc.
village councils dealt with simple civil and criminal cases.
At higher level in towns and districts the Courts were
presided over by the government officer under the
authority of King to administer the justice. The link
between the village assembly in the local and the official
administration was the head man of the village. In each
village, local head man was holding hereditary office and
was required to maintain order and administer justice, he
was also a member of village council he acted both as the
leader of the village and mediator with the government.
In order to deal with the disputes amongst member of
various guilder or association of trader or artisans,(sreni),
various corporations, trade bills, guilds were authorized to
exercise an effective jurisdiction over their member.
These tribunals consisting of a president and three or five
co-adjutors were allowed to decide their civil cases
regularly just like other Courts. No doubt, it was possible
go in appeal from the tribunal of the guild to local Court,
then to Royal judges and from this finally to the King but
such situation rarely arises. Due to the prevailing
institution of joint Family system Family Courts were also
established, ‘puga’ assemblies made up of groups of
families in the same village decide civil disputes amongst
the family members.
 11
1.2.2. (a) Grounds of Litigation:
Manu mentions following grounds on which litigation
may be instituted, (1) Non-payments of debts; (2)
deposits; (3) sale without ownership; (4) partnership; (5)
non-delivery of gifts; (6) non-payment of wages; (7)
Breach of Contract; (8) cancellation of a sale or purchase;
(9) disputes between owners and herdsmen; (10) the law
on boundary disputes; (11) verbal assault; (12) physical
assault; (13) theft; (14) violence; (15) sexual crimes
against women; (16) law concerning husband and wife;
(17) partition of inheritance; and (18) gambling and
betting.
According to Brihaspati Smiriti, there was a hierarchy
of Courts in Ancient India beginning with the family
Courts and ending with the King. The lowest was the
family arbitrator. The next higher Court was that of the
judge; the next of the Chief Justice who was called
Praadivivaka, or adhyaksha; and at the top was the King’s
Court. The jurisdiction of each was determined by the
importance of the dispute, the minor disputes being
decided by the lowest Court and the most important by the
king. The decision of each higher Court superseded that of
the Court below.
According to Vachaspati Misra, "The binding effect
of the decisions of these tribunals, ending with that of the
king, is in the ascending order, and each following
decision shall prevail against the preceding one because of
the higher degree of learning and knowledge".
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1.2.2. (b) Duties and manners:
to be observed by the king in administration of justice
were very clearly laid down in Sacred Texts, Manu’s code
says, a king, desirous of investigating law cases, must
enter his Court of justice, preserving a dignified
demeanour, together with Brahmans and with experienced
councilors. There, either seated or standing, raising his
right arm, without ostentation in his dress and ornaments,
let him examine the business of suitors. Manu cautions
King by saying, “Justice, being violated, destroys; justice,
being preserved, preserves: therefore justice must not be
violated, least violated justice destroys us”. Further he
opines ‘the only friend of men even after death is justice;
for everything else is lost at the same time when the body
(perishes)’. If judicial system fails to dispense justice
Manu says that, one quarter of (the guilt of) an unjust
(decision) falls on him who committed (the crime), one
quarter on the (false) witness, and one quarter on all the
judges, one quarter on the king.
As the duty of a king consists in protecting his
subjects by dispensing justice its observance leads him to
heaven. He who does not protect his people or upsets the
social order wields his royal scepter (danda) in vain. It is
power and power (danda) alone which, only when
exercised by the king with impartiality and in proportion
to guilt either over his son or his enemy, maintains both
this world and the next. The king who administers justice
in accordance with sacred law (Dharma), evidence
(vyavahára), history (samsthá) and edicts of kings (Nyáya)
 13
which is the fourth will be able to conquer the whole world
bounded by the four quarters (Chaturantám mahím). A
king who properly inflicts punishment prospers with
respect to those three means of happiness; but if he is
voluptuous, partial, and deceitful he will be destroyed,
even through the unjust punishment, which he inflicts.
Manu felt that the judicial administration should not rest
in the hands of a feeble minded king. If judicial
administration were given to such a king he would destroy
the whole country. Punishment cannot be inflicted justly
by one who has no assistant, (nor) by a fool, (nor) by a
covetous man, (nor) by one whose mind is unimproved,
(nor) by one addicted to sensual pleasures.
1.2.2. (c) Jury system:
It is found that jury system existed in Manu’s period
and Manu recommended the king to give the power of
judicial administration to Brahmins in his absence. Jurors
were called as ‘sabhasada’ or councilors who acted as
assessors or adviser of the King. They were the equivalent
of the modern jury, with one important difference. The
jury of today consists of laymen- "twelve shopkeepers"-
whereas the councilors who sat with the Sovereign were
to be learned in law. Yajanvalkya enjoins: "The Sovereign
should appoint as assessors of his Court persons who are
well versed in the literature of the law, truthful, and by
temperament capable of complete impartiality between
friend and foe."
These assessors or jurors were required to express
their opinion without fear, even to the point of disagreeing
 14
with the Sovereign and warning him that his own opinion
was contrary to law and equity. Katyayana says: ‘The
assessors should not look on when they perceive the
Sovereign inclined to decide a dispute in violation of the
law; if they keep silent they will go to hell accompanied
by the King."
The same injunction is repeated in an identical verse
in Shukr-nitisara. The Sovereign-or the presiding judge in
his absence-was not expected to overrule the verdict of the
jurors; on the contrary he was to pass a decree (Jaya-patra)
in accordance with their advice. Shukr-nitisara says: "The
King after observing that the assessors have given their
verdict should award the successful party a decree (Jaya-
patra)." Their status may be compared to the Judicial
Committee of the Privy Council which "humbly advises"
their Sovereign, but their advice is binding. It may also be
compared to the peoples’ assessors under the Soviet
judicial system who sits with the professional judge in the
People’s Court but are equal in status to him and can
overrule him. However, if the decision of the Sabhyas
(Judge) were fined and removed from the post, banished
their property was also forfeited. They compelled to make
good the loss. If the decision of Sabhyas is promoted by
greed, fear, friendship, etc each one was fined twice.
1.2.2. (d) Judicial Psychology
Manusmriti has specified the part of the judge’s
function to probe the heart of the accused and the witness
by studying their posture, mind and changes in voice and
eyes. Chapter VIII, 25 (Para) - By external Signs let him
 15
discover the internal disposition of men, by their voice,
their colour, their motions, their aspect, their eyes, and
their gestures. 26 (Para) - The internal (working of the)
mind is perceived through the aspect, the motions, the gait,
the gestures, the speech, and the changes in the eye and of
the face. This is unique it is the only ancient legal text
which is the first code of law to take account of judicial
psychology. It is further held that his flattering voice,
licking the corner of his lips, speaking incoherently, loss
of colour of his face and frequent coughing indicate the
probability of his untruthfulness in the eyes of the
Mitaksara of the Yajanvalkya Smriti.
1.2.2. (e) Law Relating to Witnesses
In ancient India to hearsay was not allowed, but a
witness in a foreign country can give his evidence in
writing before a learned man in the three Vedas and the
writing sent by him may be read in the Court. As regards
the number of witnesses, it is said that this number may
be, 2, 3, 4, 5, 7, or 9. But a single witness is not accepted.
But Narada Smrti states that a single witness may be
accepted, if it is approved by both the parties. Kautilya
states that a single witness can be accepted, if the very
transaction has taken in secret.
Qualifications for witness, he should be a man of
good character, trustworthy, knows Dharma and acts up to
it. Witness from the same caste is to be prepared, and in
cases relating to women a woman can be witness. As
regards the nature of incompetent witnesses, it may be said
that the persons having no faith in the Dharma, the persons
 16
who are very old persons, minors, oil presser, intoxicated
person, lunatic, distressed, inattentive, undertaking long
journeys, gambler etc.
Narada further gives us five-fold classification of
incompetent witnesses, (1) the learned Brahamanas, and
ascetics practising austerities. (2) Thieves, robbers,
gamblers (3) witnesses are to be rejected on the ground of
contradiction in their evidence (4) one who comes of his
own accord for leading an evidence is also treated as
incompetent, (5) When a person dies, he names some
persons as witnesses for the transaction, they can come as
witnesses and the person who is informed by the parties in
a general way and not in a specific way is not to be
admitted as a witness. Ordinarily the witnesses are to be
examined in the presence of the parties and never behind
their back. Further, a witness should be examined by his
tone, change of colour, eyes gestures etc
The judge should address a Brahmana witness by
‘speak and swear by veracity’. He should address the
Ksatriya witness as speak the truth and he should swear by
the animal he rides and his weapon. A Vasisya should
swear by kine, gold, and grian and a Sudra should swear
by all grave sins. The view of majority witnesses shall be
prepared, in case where there is no majority opinion is
possible, and then the quality of statement made by the
witnesses is to be taken into consideration. The claim is
not said to be established when witnesses depose more or
less than that mentioned in the statement or pliant of
plaintiff and the disposition has not taken place at all and
 17
in such a case no fine is to be imposed. When there is
conflict among the witnesses as regards time, place,
property, amount, then the dispositions are as good as not
taken place. Generally no ordeals (divyas) are to be
resorted to when the witnesses are available. The oaths are
to be employed in the disputes of small value and the
ordeals are to be resorted to in serious disputes of crimes.
Punishment for false witnesses, (a) where a witness
denies deposing in the Court matter, after giving promise
to that effect along with other witnesses, (b) if for
unfavourable circumstances, a witness denies to depose,
(c) if a witness gives false evidence frequently, in all these
cases witness shall be punished with fine and in last case
physical punishment can also be imposed on such witness.
1.2.2. (f) Classification of Vivada (disputes)
Apart from 18 subject matters of legal proceedings (as
classified by Manu), distinction has been made between
Artha-Vivada (civil dispute) and Himsra samudbhava
Vivada (criminal disputes), amongst criminal dispute
there are 4 sub division (i) Danda Parusya (assault and
battery) (ii) Vak- Parusya (Defamation) (iii) Sahasa
(Murder and other violation) and (iv) Strisangrahana
(adultery). A cause of action arises when a person, being
harassed in a way contrary to the rules of Smriti and usage,
lodges a complaint. The judicial proceedings usually
comprise four parts, namely complaint, reply, evidence
and judgment. Replies can probably be of four kinds, and
these are admission, denial, a special plea, relating to a
former judgment. Three types of evidences are mentioned
 18
namely document, possession and witness. As regards the
rules for summoning, it is evident that the opponent or the
defendant, against whom the suit is filed, must be
summoned to the Court. (2) Even other persons connected
with the defendant (in the suit) may also be summoned.
(3) When, however, some persons like soldiers,
Agriculturists, cowherds etc. are fully occupied with their
work, their representative may be allowed to appear before
the Court, as held by the Narada Smriti. (4) In serious
matters, however, the persons are allowed to appear in
person before the Court, particularly with proper
safeguards (5) in more serious matters like Murder of
Woman, Adultery with her, as held by the Mitakashara on
the Yajanvalkay Smriti no representative is allowed. But
in such matters, the concerned must appear before the
Court (6) it should be noted that the presence of some
persons like the deceased, very old (more than Seventy
years old), persons in calamities, engaged in religious
rites, in king’s duties, a woman whose family is in bad
condition, is actually condoned. (7) If, however after
serving the summons defendant fails to come before the
Court the King should wait for 30 days or 15 days and pass
the Judgment in favour of the plaintiff. (8) But if there is
an invasion by enemy or famine, or epidemic, than the
King should not fine the defendant who is thus prevented
from coming to the Court (9) However agents can be
allowed to represent on behalf of his disabled Master.
1.2.2. (g) Representation by lawyer:
the question also arises whether in ancient India, the
 19
system of lawyers is allowed or not. The views of Narada,
Katyayana and Brhaspati show that the skilled help was
required in the litigations. The commentary of Asahaya on
the Narada Smrti indicates that those who are well- versed
in the Smriti literature could afford help for monetary
consideration to the parties that have appeared before
Court. (Which is also recognized in C. P. C .1908 Order
III Rule 2). Fees of such skilled persons were also fixed
and he was appointed by parties not by Court.
1.2.2.(h). Interpretation of Legal Documents:
Artha Shastra and Manu Smriti are considered as
significant treatises as far as the legal system is concerned.
In ancient Indian societies, an independent school of legal
practices existed. Some general principles in connection
with the judicial proceedings state that in case of
disagreement between two texts of Smriti, justice
according to usage is to be followed. In case of conflict
between a text of Smriti associated with the dharma and
one relating to artha, the former prevails. The former one
sets rules regarding things unnoticed or otherworldly,
while the latter one is more concerned with everyday
matters.
Judges were required to decide cases, criminal and
civil, according to law (samyak, yath-shastram, shastro
ditena vidhina). This involved interpretation of the written
text of the law- a task which created many problems such
as the elucidation of obscure words and phrases in the text,
reconciliation of conflicting provisions in the same law,
solution of conflict between the letter of the law and
 20
principles of equity, justice and good conscience,
adjustment of custom and smritis, and so on. This branch
of law was highly developed and a number of principles
were enunciated for the guidance of the Courts. The most
important of them related to the conflict between the
dharm-shastra and the artha-shastra.
Three systems of substantive law were recognized by
the Court, the dharma-shastra, the arth-shastra, and
custom which was called sadachara or charitra. The first
consisted of laws which derived their ultimate sanction
from the smritis and the second of principles of
government. The border line between the two often
overlapped. But the real distinction between the smritis
and arth-shastra is uniformly secular, but that of the
dharma-shastra not always so. In fact so remarkably
secular is the arth-shastra in its approach to the problems
of government that this has induced some writers to
advance the theory that the artha-shastra (literal meaning:
the science of ‘artha’ or pursuit of material welfare), did
not evolve from the dharma-shastra but had an
independent origin and developed parallel to it.
Legal system in ancient India also includes adverse
possession and different modes of acquisition. Adverse
possession grants right to the possessor if the owner who,
even while seeing his property adversely possessed, does
not raise any objection. A permanent property vests in the
person adversely possessing it for 12 years without any
objection from the owner. In case of movables, the period
is ten years. The suitable modes of attainment of a
 21
property are purchase, gift etc. Generally acquisition, by a
valid mode, is stronger proof than possession. Acquisition,
without even slight possession, is not valid. A mortgage
vests in the mortgagee if it is not redeemed even after the
principal amount is doubled. A mortgage, with a time-
limit, lapses after the expiry of that time.
1.3. Conclusion
The British while justifying their colonial rule in
Indian claimed Indians lacked civilized system of self rule
and their presence in this country gave India a sense of
justice and rule of law. Many Indians today hold these
views in their heart. These views are not only incorrect but
they are blatant lies. The British supplanted ancient Indian
law and introduced in its place their own system of law.
One has to understand that this was not a simple change of
laws but was the imposition of a totally alien philosophy,
understanding of human nature, belief system, and way of
life and concept of polity. This was and is a mismatch.
Both Civil as well as Criminal Law administration during
British regime is worse and blind observance of which
even after independence is more than worse.
There were multiple reasons why British Legal
System is not suitable to India,
Present Legal System had its origins in the dominant
philosophy of Britain of those days. It is based on the
notion of an Austinian state, where a single monarch or a
power had all the power which was indivisible. All powers
devolved from top down. That was the structure of the
 22
modern nation state that the British were familiar with. So
there was centralization of legislative authority and
executive authority. Seeing a region with multiple states
was itself a shock to them having come from a unitary one.
On top of it to have multiple legal systems, where different
castes and religions had their own institutions was quite
alien to them.
So, one of the things they tried to bring is certainty
and uniformity in the law; certainty and uniformity in the
judicial and legal institutions they created. That
homogenization itself was a major shock to Indians. The
judicial system is one part of the legal system. A legal
system would involve all the laws, norms, standards that
are laid down to determine what is right or wrong, correct
or incorrect. It would also involve all that goes to enforce
the legality: that is the Courts, police, jails etc.
It was profoundly disturbing to the Indian masses that
they set up these specialized Courts manned by people
trained in law with so called independent judges. That
itself was a cultural shock for the people of India, because
till that time, if you look at the existing dispute resolution
systems, typically at the village level, one had the
Panchayat system. Panchas would be notables who would
be known locally. They were not appointed by state as we
understand today.
By the British yardstick they would not be
‘independent’ as they would be members of the
community. The idea of an independent judge comes from
Anglo-Saxon jurisprudence and it requires that the judge’s
 23
mind is a tabula rasa, a clean slate, with respect to the
dispute and he only allows his mind to register that which
is ‘relevant’ to the dispute. The medium by which the
judge appreciates facts or the evidence is through the two
lawyers representing either side. What they bring into the
Court largely determines the final outcome. So who
should be allowed to address the Court; complex rules of
evidence concerning who could step into the witness box;
what matters can be addressed and so on, became very
important. For example, unless one’s own eyes or ears had
seen or heard the transaction, one could not testify and one
could testify only with regard to that particular transaction.
Whereas in the panchayat, which was held in the open,
anybody who had even fringe knowledge could speak.
They did not have to go through this filter of ‘is this
relevant, are you worthy’.
Therefore you had a sense of participation and
anybody could speak. With the new system however, one
had a judge who was not known to the parties, which was
seen as virtue in the English system but was alien to
Indians; it goes without saying that the language of the
Court was English and one had to hire a lawyer and so on.
The new Courts had very strict rules of relevancy. Many
of these continue till today. Thus new Courts with their
very specialized rules of evidence which were manned by
very technical judges, and where you would have to place
your full faith in the vakeel, who alone would be the voice
that would speak in the Court, made the system
inaccessible to Indians. Thus, in all these area: the choice
of the judge, who could testify, regarding what they could
 24
testify, the location of the Court and so on, all these things
were alien and the process alienating. In the old panchayat,
even if you were not of the ‘high caste’, you could sit or
stand up. Further Judgment today’s Courts is in ‘Yes’ or
‘No’ form, whereas, the panchayats always negotiated,
with no clear winner or loser. Panchayats were willing to
find a mid-ground so that all could save face.
People were used to that system, where you would not
lose everything but some form of justice would be done.
So that you did not have a win-lose but a win-win
situation. In Panchayat system the solution gave a lot of
discretion to the decision makers to decide what would
best serve the ends of justice. So long as their decision was
not out of sync with vyavahara as practiced, they had a
whole range of flexibility. In contrast, for the British, the
‘certainty of law’, that it was fixed before the dispute came
into being, was seen as a major virtue.
The administration of Criminal Justice was not also
well founded in India, the police can oppress with
impunity. During British rule the visit of a police darogah
(officer) to a native villager is a calamity. If a robbery is
committed, the poor are afraid to complain; if anyone is
wanted as a witness, he is taken for several days from his
labor and treated as a prisoner; if a criminal, or suspected
criminal, is arrested, he is at once presumed to be guilty,
and is very probably tortured to confess.... The insecurity
of property induces all who can afford it, to hire
watchman, in fact, bludgeon men, of their own; and these,
whenever occasion requires, are of course used as agents
 25
of any amount of violence and oppression.... The people
sink under the weight of fear, and their natural cowardice
is increased by a sense of hopelessness of resistance.
Justice is to a large extent, practically denied them; the
land-holders and the police are chief powers they know;
and they are hunted by both, till they surrender themselves
to servility, to despair. Even after 65 years of
Independence Justice Administration of justice in India
never satisfied the aspiration of people, this is because
wrong selection of foreign made legal structure,
application of discontent laws, discarding indigenous
system of justice administration.

Greek law - Ancient Greeceii

Greek law, legal systems of the ancient Greeks, of
which the best known is the law of Athens. Although there
never was a system of institutions recognized and
observed by the nation as a whole as its legal order, there
were a number of basic approaches to legal problems,
certain methods used in producing legal effects, and a
legal terminology, all shared to varying degrees by the
numerous independent states constituting the Hellenic
world. It should not be forgotten, however, that such
common foundations as there were gave rise to a great
variety of individual legal systems differing as to their
completeness and elaboration and reflecting the tribal (i.e.,
Dorian, Ionian, etc.) and historical backgrounds as well as
the changing social, economic, political,
and intellectual conditions of their respective societies.
Greek legal life of the 5th and 4th centuries BCE was
 26
determined by three dominant factors. One was the
existence of a multiplicity of city-states (poleis), each of
which possessed and administered its own set of laws. The
second element was the fact that in many, if not most, of
the poleis (one certain exception was Sparta) the laws
were laid down in written statutes, some of them being
elaborate and more or less complete codes setting forth
procedural methods and substantive rules for the
administration of justice. This was the result of a great
movement for legal codification that from the 7th century
had swept the Greek world. Solon of Athens (594 BCE),
who had been preceded in 621 by Draco, is the best known
of a number of famous lawgivers, other outstanding ones
being Zaleucus of Locri Epizephyrii (south Italy) and
Charondas of Cantana; Lycurgus of Sparta is considered
legendary. A number of enactments rightly or wrongly
attributed to Solon still are known from literary quotations
rendering them in a modified form that reflects a
legislative reform of 403–402 BCE. One of the Draconian
laws has been preserved in an Attic inscription giving it in
a revised version dating from 409 or 408 BCE. The
law code of Gortyn, which is itself the revised version of
an older code, is the only one that comes close to being
fully preserved.
The third determining factor for Greek law was the
absence of a body of jurisprudence comparable to that of
the Romans. Even the Attic orators, for all their practical
familiarity with the laws of the city, were mainly
interested in presenting arguments suited to persuade the
mass juries before whom they had to argue, not in
 27
analyzing the legal system with the object of obtaining a
deeper insight into its implications. Nor, for that matter,
did the philosophers care for the law as it was, their aim
being the discovery of abstract standards of justice.
The three characteristics outlined here were important
influences on the general character of Greek law. The first
two of these factors resulted in a rather stiff positivism.
Contrary to views held by scholars until recently, new
research has shown that the Athenian dicasts who sat in
judgment did not feel free to base their verdicts on vague
notions of equity but adhered, at least in theory, to the
literal meaning of the written statutes (nomoi), which they
were bound by a solemn oath to observe. This somewhat
narrow clinging to literal interpretation, combined with
the absence of any attempt to deal with statutes or legal
situations in an analytical manner, led to the result that
Greek law never attained the doctrinal refinement
of Roman law, notwithstanding the remarkable technical
flexibility that characterized it in Hellenistic times.
At the present stage of research, the only judicial
system sufficiently known to warrant description is that of
4th-century Athens. In the democratic period its justice
was administered by magistrates, popular courts
(dikastēria), and the Areopagus. Functionaries received
the actions and arranged the trials that took place before
the courts, with each functionary having a specific
jurisdiction: the archon over matters pertaining to family
and succession, the “king” (archōn basileus) over
religious matters (including murder),
 28
the thesmothetai (“determiners of customs”) and others
over the rest. A special jurisdiction was that of
the polemarchos (literally, “general”) over the metics
(resident aliens). The trial competence of the dicasteries
rested on the principle, first introduced within certain
limits by Solon and made universal after the establishment
of full democracy, that the citizenry in its totality should
judge the affairs of its members. The dicasts were selected
by lot, every citizen over 30 years old being eligible. In
rare cases of great political importance, the
whole hēliaia (i.e., the popular assembly organized as a
court of 6,001 men) was convened. Normally sections of
the hēliaia (specifically called dikastēria), composed of
1,501, 1,001, or 501 men in criminal cases and 201 men
in civil cases, were charged with the decision.
Murder cases were argued before the Areopagus, a
body composed of former archons. Probably transformed
from an original council of the nobility, it was a relic of
the predemocratic period.
In the Greek view, the trial served to determine the
justification of a claim to seize the defendant’s person or
belongings or both by way of an enforcement proceeding
(praxis). The claim (dikē) might be raised by the plaintiff
in pursuance of a private right or as a “public”
(dēmosia) dikē for the purpose of obtaining the
defendant’s punishment. The filing of a
public dikē (technically called a graphē) was open to
every citizen. Apart from this, the differences between
private and criminal procedures were slight.
 29
Both private dikai and graphai had to be initiated by
summoning the defendant (who might be under arrest) to
the magistrate having jurisdiction in the matter and by
filing a written complaint with the latter, who would
subject it to a preliminary examination (anakrisis). Parties
to a civil suit concerning pecuniary affairs were then sent
to a public arbitrator (diaitētēs). If one of them refused to
accept the award or if the matter was not subject to
compulsory arbitration, the case was referred to a
dicastery presided over by the magistrate. The dicasts,
after listening to the arguments and evidence submitted by
the parties, found their decision, which could only be a
choice between the two proposals made by the parties,
by secret ballot without debate. Their judgment was final
between the parties, but the loser might bring a private tort
action (dikē pseudomartyriōn) against a witness whose
false deposition had influenced the verdict. A victorious
plaintiff in a private lawsuit had to enforce the judgment
himself by attaching property of the defendant.
In distinct contrast with the Greek philosophy of
justice, the positive law of ancient Greece had little
influence on later developments. Its concepts and methods
did, of course, widely determine the legislation and
practice of Hellenistic monarchies, and a few institutions
of Greek origin, such as the “Rhodian” maritime
law of jettison or certain methods of documentation
(mostly Hellenistic, to be sure), were adopted by the
Romans. Contrary to views held some decades ago,
however, the late Roman law, and with it west European
legal doctrine, did not undergo any notable degree of
 30
Hellenization. Only in the customs of isolated places in
Greece itself do some ancient traditions seem to survive;
their extent is still a problem for legal historians.

Roman Lawiii
Roman Law served as the basis for legal texts other
cultures and civilizations.
What is Roman Law?
Roman Law is called legal order that governed the
society of Ancient Rome, from its foundation (in 753 BC)
until the fall of the Empire in the V century AD. C.,
although it remained in use in the Eastern Roman Empire
(Byzantium) until 1453.
It was compiled as a whole in the 6th century by the
Byzantine Emperor Justinian I, in a volume of laws known
as the Corpus Juris Civilis (“Body of Civil Law”), and first
printed by Dionysus of Godfrey in 1583, in Geneva. .
Said text and the laws it contains are of utmost
importance in the legal history of humanityas they
served as the basis for the legal texts of multiple other
cultures and civilizations. So much so, that there is still a
branch of law specialized in its study, called romanistics,
with offices in the law schools of many countries.
To fully understand Roman Law, it is convenient to
examine its characteristics and its history, but in broad
terms it can be understood from the concept of ius
(“right”), contrasted with fas (“divine will”), thus
separating for the first time the legal exercise of religion.
 31
This will allow the emergence of the various branches of
law: ius civile (“civil law”), ius naturale (“natural law”),
etc., many of which still exist today.
History of Roman law
The Roman Republic oscillated between democracy
and dictatorship constantly.
The history of Roman law covers more than a
thousand years of legislation and changes in the way of
understanding the law and legality, from the first
appearance of the Law of the Twelve Tables in 439 a.
Approximately, until the Code of Justiniano of 529 d. C.
Its birth comes from custom (which would inspire
customary law) and would emerge as a model of
regulation of society that would guarantee social peace in
the face of plebeians and the hierarchy that supported the
emperors and praetors for equality. and the Senate.
Let us remember that the Roman Republic oscillated
between democracy and dictatorship constantly, to end up
becoming an Empire that would conquer almost the entire
Western world, taking its law to all the corners that it
colonized. A) Yes, Roman law became the mainstay of
the legality of the Roman colonies in Europe, Asia and
Africa, and this is reflected in the legal history of each
kingdom into which the Roman Empire was divided after
its collapse.
Some of the leading jurists and legal scholars in
Ancient Rome were Gaius, Papiniano, Ulpiano,
Modestino, and Paulo.
 32
Periods of Roman law
The history of Roman law is normally divided into the
following periods:
• The monarchical period. It extends from the
middle of the 8th century BC. C., with the
foundation of Rome, until the year 509 a. C. when
King Tarquinio the Proud, whose despotic
government was the last exercised by the Roman
kings, is expelled from the city, thus giving rise to
the Roman Republic.
• The republican period. It begins with the fall of
the monarchy at the beginning of the 5th century
BC. C. and culminates with the granting by the
Roman Senate of absolute powers to Octavio
Augusto in the year 27 a. During this period the
Law of the XII Tables was published, formally
beginning Roman law, and building a State of
powers in balance: a group of magistrates was
democratically elected in popular assemblies, in
charge of assigned functions; while the Senate was
in charge of issuing senate consultations with the
force of law.
• The period of the principality. It begins in the
year 27 a. After the political crisis that affected the
Republic and allowed the emergence of an
authoritarian State, subject to the will of the
auctoritas of the Prince or Emperor, such as
Augustus (27 BC – 14 AD), Calígula ( 37-41 AD),
 33
Nero (54-68 AD) among others. Rome reached its
maximum territorial extension in this period: 5
million square kilometers.
• The period of the dominated. Also known as the
absolute Empire, it began in the middle of the
second century AD. Until the year 476, when the
Western Roman Empire collapses and disappears.
It is a time of absolute power the State, in the hands
of the Emperor, who governs through imperial
constitutions. In the year 380 the Empire
assumed Christianity as the official religion and
later it was divided into two parts, from which the
Eastern Roman Empire was born.
• The period of Justinian. Also called the
Government of Justinian, it goes from 527 to 565
d. C., and it is the time when the Justinian
compilation of Roman Law is published in the year
549, marking the end point of its history. After the
death of Justinian, the Byzantine Empire was
erected, a rather medieval state, which lasted until
the 15th century, when it fell to the Turks.
Sources of Roman law
Justinian sources are in the Corpus iuris civilis of
Emperor Justinian I.
Like all aspects of law, the Roman has its sources,
which we can study separately as follows:
• The mos maiorum. “The custom of the ancestors”
 34
is the first of the sources of Roman Law. It is made
up of custom (common law), through a set of rules
inherited from the ancestral tradition and which
were venerated in Ancient Rome, which were
transmitted in the family and which served to
contrast the Roman with the Hellenizing or Asian
traditions.
• Justinian sources. Those compiled by Emperor
Justinian I in his work Corpus iuris civilis, which
includes: The code or Codex (vetus) that compiled
the imperial constitutions; The digest or Pandectas
that contains a chronological ordering of the
various subjects, in chronological order
throughout 50 different books; the Institutions or
Institutes that contains a synthesis of doctrines and
precepts in four books that make up an elementary
treatise on law; The Justinian code or “The New
Code” which is the version commissioned by the
Emperor from John of Cappadocia, inspired by all
of the above; and finally the Novels that make up
the definitive code promulgated by Justinian.
• Extrajustinian sources. They comprise two sets
of texts unrelated to Justinian’s work:
➢ Fragments of jurists of the classical
period. How are the institutions of Gayo;
the Fragments of Sententiarium libri V ad
filium of Paulo; the Tituli ex corpore
Ulpiani whose author is unknown; very
scarce parts of the Papianian Responsa; an
 35
appendix to Ars grammatica de Dositheus;
and the Scholia sinaitica discovered on
Mount Sinai.
➢ The collection of other imperial
constitutions. Like the Vatican
Fragmenta, which are the remains of a
private collection of passages from
classical jurists and imperial laws found in
a palimpsest in the Vatican Library.
Characteristics of Roman law
Public law regulates the actions of the State and
ensures the well-being of citizens.
Roman law, in very broad strokes, distinguished
between various ways of understanding the law. Not
only, as has been said, between ius (“right”) and fas
(“divine will”), but also between public law, which
regulates the actions of the State and ensures the
general welfare of citizens; and private law, which
regulates the agreements and transactions between them,
in view of the idea of justice defended by the institutions.
Similarly, he differentiated between two fundamental
concepts: Ius (“right”), that which is fair and equitable
in itself and therefore binding; and Lex (“Law”), that
which is ordered or commanded in writing by the State
authorities. The entire body of Roman Law was inspired
by this opposition.
We must also note that for Roman Law the human
 36
being was not necessarily a citizen, but rather those that
the law recognized as such, slaves being excluded from
any right. There were, thus, three forms of citizenship
based on their degree of freedom:
• Free people. Those who always were (Naive) and
those who had won their freedom after being
slaves (Libertines).
• Colonists. They were in an intermediate state
between freedom and slavery, sentenced for life to
the cultivation of Roman territories, and whose
desertion made slaves.
• Slaves. People who were not owners of
themselves, but were part of the heritage of others.
Although they were not at the level of slaves or
colonists, women occupied a place of subordination in this
legal system with respect to men.
Importance of Roman law
Roman law not only It is the basis of the
constitutions of the countries of the West and the
East (especially its civil and commercial law) that were
part of the Roman colonial Empire, but also embodied the
statutes of the Catholic Church that governed its operation
even in the Middle Ages, when the Roman Empire had
already dissolved.
Almost all republican institutions that exist today
have their origin in Roman Law, and many legal systems
such as Anglo-Saxon common law as well.
 37

Law, Morals, Ethics and Justice

What is Law?iv
Meaning of Law: – The law is legislation created
and enforced through social or governmental
institutions to regulate behavior, with its precise
definition a matter of longstanding debate. Law is a rule
made by a government that states how people may and
may not behave in society and in business, and that often
orders particular punishments if they do not obey, or a
system of such rulesIt has been variously described as
a science and the art of justice. Until now, there is no
definition that is universally accepted. Jurists have tried to
define it on the basis of ‘source’, ‘effect’, ‘purpose’,
‘nature’ and other factors. Law are the rules which are
enforced by society. Violations may bring a loss of or
reduction in freedom and possessions.
Society is one of the major factors in explaining the
law. The law tells people what they should and should not
do. For example, the law tells people that they should not
hurt people and that they will be punished if they do so. In
the same way, even society tells us what to do, for
example, respect elders.
Law is a social science and in order to keep up with
change in society it has to change because there can be no
right definition of law due to ever changing society. To
give the definition of law, various legal concepts should
be analyzed such as sociology, political science, history,
psychology, economics, with an element of logic and
practicality to meet the ends of justice.
 38
Various Definitions of Law
There are broadly five definitions of Law such as: –
Natural School: – In the natural school of thought, a court
of justice decides all the laws. There are two main parts of
this definition. One, to actually understand a certain law,
an individual must be aware of its purpose. Secondly, to
comprehend the true nature of law, one must consult the
courts and not the legislature.
Positivistic Definition of Law: –
John Austin’s law definition states “Law is the
aggregate set of rules set by a man as politically superior,
or sovereign to men, as political subjects.” Thus, this
definition defines law as a set of rules to be followed by
everyone, regardless of their stature (status).
Hans Kelsen created the ‘pure theory of law’. Kelsen
states that law is a ‘normative science’. In Kelson’s law
definition, the law does not seek to describe what must
occur, but rather only defines certain rules to abide by.
Historical Law Definition: – Friedrich Karl von
Savigny gave the historical law definition. His law
definition states the following theories: –
• Law is a matter of unconscious and organic
growth.
• The nature of law is not universal. Just like
language, it varies with people and age.
• Custom not only precedes legislation but it is
 39
superior to it. Law should always conform to the
popular consciousness because of customs.
• Law has its source in the common consciousness
(Volkgeist) of the people.
• The legislation is the last stage of lawmaking, and,
therefore, the lawyer or the jurist is more important
than the legislator.
Sociological Definition of Law: –
• Leon Duguit states that law as “essentially and
exclusively as a social fact.”
• Rudolph Von Ihering’s law definition: – “The
form of the guarantee of conditions of life of
society, assured by State’s power of constraint.”
This definition has three important parts. One, the
law is a means of social control. Two, the law is to
serve the purposes of the society. Three, law due
to its nature, is coercive.
• Roscoe Pound studied the term law and thus came
up with his own law definition. He considered the
law to be predominantly a tool of social
engineering. Where conflicting pulls of political
philosophy, economic interests, and ethical values
constantly struggled for recognition. Against a
background of history, tradition and legal
technique. Social wants are satisfied by law acting
which is acting as a social institution.
Realist Definition of Law: – The realist law definition
 40
describes the law in terms of judicial processes.
• Oliver Wendell Holmes stated: – “Law is a
statement of the circumstances in which public
force will be brought to bear upon through courts.”
• According to Benjamin Nathan Cardozo who
stated “A principle or rule of conduct so
established as to justify a prediction with
reasonable certainty that it will be enforced by the
courts if its authority is challenged, is a principle
or rule of law.”
As per the above law definitions, human behavior in
the society is controlled with the help of law. It aids in the
cooperation between members of a society. Law also helps
to avoid any potential conflict of interest and also helps to
resolve them.
What is Justice?
Meaning of Justice: – The term justice has been
derived from the Latin word ‘Jungere’ which means to
bind or tie together, thus in this way it can be stated as
justice is the key element which ties the individuals in the
society together and harmonizes a balance between them
and enhances human relation. Justice means following of
norms (customs). Justice stands for just conduct, fairness
or exercise of authority in maintenance or right. Therefore,
justice generally means the recognition, application and
enforcement of laws by courts. Justice is ideally
representing something that is just and right. It basically
means being just, impartial, fair and right. What is just
 41
may depend on the context, but its requirement is essential
to the idea of justice.
For example, the natural law school of jurisprudence
believes that justice means the implementation of religious
laws. On the other hand, modern jurisprudence says
justice means the implementation of concepts like equality
and liberty. However, in both these examples, justice
means enforcement of what the law perceives to be right.
Society demands that people should live in peace in
the society. While in society we experience a conflict of
interest and expect other people to behave rightly in the
society. But on the contrary, people are very selfish by
nature, and may not be fair to others.
Thus it is necessary that there should be some external
power which is necessary to maintain the society.
Salmond and Roscoe Pound made more emphasis on the
importance of justice in their definition of law. For
salmond without justice, an orderly society is
unimaginable.
Blackstone: – Justice is a reservoir from which the
concept of rights, duties and equity develops.
The essence of legal justice lies in ensuring
uniformity and certainty of law as well as ensuring that
rights and duties are duly respected by the people. Justice
ensures fairness. One should not be just for themselves but
towards all members of society as well.
Kinds of Justice
 42
The concept of justice and its administration can be of
the following types: –
1. Public Justice and Private Justice: –
• Public justice is basically that kind of justice which
the state administers through its tribunals and
courts. It explains the relationship between courts
and citizens of a state. Courts usually enforce laws
that states make under public justice.
• On the other hand, private justice regulates the
legal relationship between individuals. It is limited
to people enforcing concepts of justice amongst
each other without approaching courts.
• For example, let’s imagine that A and B entered
into a business transaction in which A paid money
to B as promised. B, instead of selling goods to A
for the money, refused to fulfill his obligation. If
A and B decide to settle their dispute through
means of arbitration or negotiation, it is private
justice. However, if A approaches a court and sues
B, we refer to that as public justice.
2. Civil Justice and Criminal Justice: –
• In terms of the subject matters of justice, we can
categorize it as civil and criminal. Civil justice
generally refers to private wrongs that affect
specific people or entities.
• For example, breach of a contract between two
parties will affect only one of them. Trespassing of
 43
property is another example. In order to get justice
in case of civil wrong a person should approach
civil courts.
• Criminal justice, on the other hand, affects society
in general even if specific people are victims. For
example, the murder affects specific victims only
but the law treats it as a crime against society.
• Another feature of criminal justice is that it relates
to laws made by a legislature. Only acts that are
defined as crimes can be the subject matter of
criminal justice.
3. Social Justice:
Social justice is another name for equal social rights.
Social Justice aims to provide equal opportunities to every
individual to develop his inherent qualities. In
contemporary times a large number of scholars use prefer
to describe the concept of Justice as Social Justice. Social
Justice is taken to mean that all the people in a society are
to be equal and there is be no discrimination on the basis
of religion, caste, creed, colour, sex or status. Social
democrats and modern liberal thinkers define social
justice as the attempt to reconstruct the social order in
accordance with moral principles. Attempts are to be
continuously made to rectify social injustice.
It also stands for a morally just and defensible system
of distribution of reward and obligations in society
without any discrimination or injustice against any person
or class of persons.
 44
4. Economic Justice:
Economic Justice is indeed closely related to social
justice because economic system is always an integral part
of the social system. Economic rights and opportunities
available to an individual are always a part of the entire
social system. Economic justice demands that all citizens
should have adequate opportunities to earn their livelihood
and get fair wages as can enable they to satisfy their basic
needs and help them to develop further. The state should
provide them economic security during illness, old age
and in the event of a disability.
5. Political Justice:
Political justice means giving equal political rights
and opportunities to all citizens to take part in the
administration of the country. Citizens should have the
right to vote without any discrimination on the basis of
religion, colour, caste, creed, sex, birth or status. Every
citizen should have an equal right to vote and to contest
elections. Legal justice has two dimensions-the
formulation of just laws and then to do justice according
to the laws. While making laws, the will of the rulers is
not to be imposed upon the ruled. Laws should be based
on public opinion and public needs. Social values,
morality, conventions, the idea of just and unjust must be
always kept in view.
What is Morality?
Meaning of Morality: – Tort Law started just from
the morality of the society and has some moral values as
 45
its underpinnings. In its most basic terms, the source of
tort law is to shield society from chaos and pandemonium
by establishing a court in which one individual can bring
a claim against another, without resorting to private
revenge.Like the morals of society construes that no
person should do anything wrong with anyone and if he
has done anything wrong, then he must be punished, just
to get the victim back to a decent position.
In ancient times, there was no difference
between law, justice and morality. In Hindu law, there
was Smriti and Vedas. In the name of ‘natural rights’ the
Greeks laid the theoretical moral foundation of the law.
The recognition of moral laws is done by Romans on the
basis of ‘natural law’. In the middle Ages, churches came
to power and Christian morality was considered the basis
of law.
Bentham said “Law has just the same centre as morals
but it has by no means the same circumference.”
The modern trend in morality: –
1. Strong distinction made between Laws and Morals
by Analytical school in 19th Century.
2. John Austin maintained that law has nothing to do
with morals.
3. The analytical school believed that all
considerations including morals should be
separated from the study of law.
4. But analytical school did not refuse to accept the
 46
existence of morality.
5. This school just did not agree on the fact that
morals and law are the same thing. Austin
differentiates law and morality as ‘positive law’
and ‘positive morality’.
Law and Justice in Modern Society
“Justice by law” is the modern view of justice in
society. Dicey called this theory “the rule of law”. This
includes that everyone is equal before the law and there
should be no arbitrariness and the law should be equally
applicable to all without any discrimination. ‘No one is
above the law’.
1. Civil Justice: – Citizens can enforce and protect
their legal civil rights and resolve disagreements
between two or more parties through the civil
justice system. The system ensures the protection
of rights rather than punishment.
2. Criminal Justice: – The main purpose of criminal
justice is to punish the offender. It is the state that
punishes the offender. The objective of criminal
justice is to punish the criminal and create an
example in the society so that there is no crime.
Punishment is to set an example for the society just
to show the citizens of the state that the same will
happen to them if they do not follow the law. There
are four principles of punishment: –
A. Deterrent: – To set an example in society.
 47
B. Retributive: – one eye for one eye and one
tooth for one tooth
C. Preventive: – Preventing the offender from
repeating the crime through measures such
as imprisonment, capital punishment.
D. Reformative: – Reformation of criminals
through method of individualization.
What is the difference between law and morality?
The difference between law and morality is as
follows: –

LAW MORALITY

Law is a system of rules Morality is a body

that are applied in a of system of values and
particular country or principles derived from
community as regulating the the code of conduct..
actions of its members and it
can be enforced by the
imposition of penalties.

The law is deliberately Morals cannot be

changed by Parliament intentionally changed,
and/or the courts. rather it develops
slowly.
 48

LAW MORALITY

Sanctions are invariably There is no official

imposed for violations of sanction for unethical
legal obligations. behavior, although
society often creates its
own form of censorship.

Laws ust be followed as They are good in

necessary for proper itself that’s why people
functioning of society. follow them.

What is the relationship between Law and Morality?

Although there are many differences between law and
morality, it should not be assumed that there is no
similarity between law and morality. They have the same
center but different circumferences. They are very closely
related. It depends on the definition of law whether they
will incorporate morality or not. Different definition of
law is given by different schools.
The relationship between Law and Moral can be
studied with 3 viewpoints: –
1. Morality as the basis of law
2. Morality as positive law test
3. Morality as the end of law
Explanation: –
 49
1. Morality as the Basis of Law: –
Law and morals have a similar origin, but due to the
course of development, they came apart. In earlier
societies, there was no difference between law and
morality. They had a common source and their approval
was of the same nature.
Later, with the development of society and the
formation of the state, it raised the rules that were
necessary for the functioning of the state and enforced its
own restrictions to enforce them. These rules are called
‘laws’.
The rules were for the ‘good’ of humanity, but the
state could not ensure that their upbringing would remain
as it was. These are called ‘morality’.
Thus it can be said that law and morality have the
same origin, but there is divergence in their development.
Many rules are common to both such as not killing a
person, not stealing.
2. Morality as a Positive Law Test: –
In early times it was argued that law should be
consistent with morality. It was supported by the Greeks
and Romans. Later the churches came to power and said
that if the law does not confirm to Christian law then it is
invalid. When churches were removed from power, it was
claimed that law and morality were different.
Law derives its authority from the state and not
morality. In the 18th century ‘natural law’ theory was
 50
gaining popularity and had a moral foundation. It was re-
considered that the law and the rules are the same. In the
19th century, Austin propounded his theory that morality
had nothing to do with the law.
The law is the command of the sovereign supported
by sanctions. In the 20th century, Kelsen stated that only
legal norms are subject to jurisprudence. He excluded all
other external things, including ethics, from the study of
law.
Now it cannot be said that if the law does not confirm
to morality then it is not binding. However, waking up
more or less is in line with morality.
3. Morality as the End of Law: –
Ethics is often considered the end of law. Many jurists
have defined the law on the basis of ‘Justice’ and thus
there is a connection between law justice and morality.
Most of the jurists said that the objective of law is to
secure justice. Justice is more or less defined as ‘morality’.
Thus law is used to consider both morality and justice.
Morality without lawv
The sole purpose of law is to provide a system of do’s
and don’ts in order to guide human being in their
behaviour and to protect them from doing harm to persons
and property. Some laws have less moral import (For e.g.
Legalisation of Betting) than others (For e.g. Laws
against Killing) that does mean morality can be equated
with law and vice versa.
 51
Taking the case of Ethics in private
relationship wherein instances of marital rapes are
rampant, particularly in India, though it’s legal but against
the basic tenets of morality. Similarly, the question of
adultery in marriage is beyond the scope of law that can
only be dealt in the framework of morality. Since, there is
no way a law can regulate someone’s desire for another
man’s wife as long as the adulterous act is never
carried out.
This indicates that morality is not necessarily based
on law. It does mean that a moral society could be formed
without having sound legal system or law should be
eliminated from human affairs. It attempts to argue
that law is not a necessary attribute of morality.
However, role of law is quite crucial in enforcing
morality through a system of reward or punishment.
Laws without morality
All laws are more or less derived from morality which
provides the reasons behind laws enacted to govern human
being. For instance, laws against killing and stealing are
based on Divine command theory. It is unimaginable to
think about a law which doesn’t concern morality.
Law and Morality
Law is the public codification of morality which
dictates moral way of behaviour for every member in the
society. For Example, Indecency (Prostitution) in public
space is strictly prohibited.
 52
Law sanctions moral behaviours. For example,
Whistle blower Protection Act aims to protect those who
expose corruption in public office.
Unjust laws can’t be rectified through more laws and
regulations but requires valid moral reasoning. For
instance, Instead of making various regulations to
protect Right to Privacy, Hon’ble Supreme Court
declared it as Fundamental right.
Law sanctions morality but it cannot replace or be a
substitute for morality. For instance, Probity in Public
life can’t be enforced through legal mechanism, it requires
cultivation of moral values at personal level.
Without morality, law framework is immaterial or
insignificant. For instance, legalisation of Slavery never
did well to anyone and resulted into Civil wars in many
countries across the world.
Ethicsvi
Ethics is a branch of philosophy that aims to answer
the basic question, “What should I do?” It’s a process of
reflection in which people’s decisions are shaped by their
values, principles, and purpose rather than unthinking
habits, social conventions, or self-interest.
Our values, principles, and purpose are what give us
a sense of what’s good, right, and meaningful in our lives.
They serve as a reference point for all the possible courses
of action we could choose. On this definition, an ethical
decision is one made based on reflection about the things
 53
we think are important and that is consistent with those
beliefs.
While each person is able to reflect and discover their
own sense of what’s good, right, and meaningful, the
course of human history has seen different groups unify
around different sets of values, purposes and principles.
Christians, consequentialists, Buddhists, Stoics and the
rest all provide different answers to that question, “What
should I do?” Each of these answers is a ‘morality’.
Ethics and law
There are various views on the relationship between
ethics and law. Some of them are as follows;
1. Law is used as a device to enforce the ethical views
of a society (Customary morality). Law abiding citizens
are those who behave in a way that is ethically acceptable
in the society.
Objections to this view
• In a multi-cultural society (e.g. Indian
society), there is an insufficient agreement on
ethical issues (e.g. Non-veg foods) for the law to
enforce anything that can be seen as an ethical
consensus.
• Law permits behaviour that many people consider
ethically unacceptable – gambling, high-
pressure selling and arms dealing.
2. Law should not be exploited in order to enforce
 54
ethical behaviours rather it should ensure maximum
permissible liberty for the citizens. If law doesn’t intend
to promote liberty and too restrictive in nature, it can be
regarded as unethical. For instance, Population control
laws which attempts to arrest population growth
through coercive means instead of this people should
be made aware with family planning techniques and
given freedom to decide, how many kids they want to
produce.
3. Law is not an appropriate instrument to make
judgements on critical ethical concerns. Taking the case of
legalising “Misleading truth” (Read about Bill Clinton
and Monica Lewinsky sexual scandal) which is
prevalent in public administration wherein Public officials
exploit the loopholes in laws (Driven by malicious
intention) in their own interest. Though this is an ethical
concern but laws can’t be made to punish the public
servants for their malicious intentions.

Nature of lawvii
Nature of law What is the nature of law? This
question has occupied center stage Jurisprudence and
philosophy of law in the modern era, and has been the
central occupation of contemporary analytic
Jurisprudence. This entry in the legal theory Lexicon aims
to give an overview of the “what is law” debate.
Historically, the answer to the question, “what is
Law” is thought to have two competing answers. The
classical answer is provided by natural law theory, which
is frequently characterized as asserting that there is an
 55
essential relationship between law and morality and
Justice.
The modern answer is provided by legal positivism,
which as developed by John Austin, asserted that law is
the command of the sovereign backed by the threat of
punishment.
Contemporary debates over the nature of law focus on
a revised set of positions legal positivism is represented by
Analytical legal positivists, like H.L.A Hart Joseph raza
and Jules Coleman.
The natural law tradition is defined by John Punis and
a new position, interpretivism is represented by the work
of the late Ronald Dworkin.
In some ways, the title of this lexicon entry is
misleading because of focus on the “what is law” question
as it has been approached by contemporary legal
philosophers.
There are other important perspectives on the nature
of law that focus on law’s functions rather than the
meaning of the concept for criteria of legal validity. For
example, the sociological tradition includes important
work on the nature of law by Max Weber and Niklas
Lahumann. These issues are discussed by Brian Tamanaha
in a very clear way.
This lexicon entry maps the territory of the “what is
Law”? Controversy, and provides introductory sketches of
the major positions as always, the lexicon is written for
 56
law students.

Functions of law
Ever since the down of Human civilization, mankind
has had some sort of rule or that they used to Govern itself
in society laws set the standard in which we should live in
if we want to be part of society. Law set up rules and
regulations for society so that we can freedom, gives
Justice to those who were wronged, and it set up that it
protects us from our own Government.
Most importantly the law also provides a mechanism
to resolve disputes arising from those duties and rights and
allows parties to enforce promises in a court of law
(Corley and Reed 1986 P.A)
According to Corley and Reed (1986) law is a body
of rules of action or conduct Prescribed by controlling
authority, and having legal binding forces.
Laws are created because it helps prevent chaos from
happening within the business environment and as well as
society. In business law sets guide lines regarding
employment regulatory, compliance, even inter office
regulations.
Role of law in Business:
The rule of law plays an important role in the business
world when set setting a business it is the laws that
determine what type of business it is to became, and the
structure is to be formed.
Also the law sets up a reasonable expectation on how
 57
the business should operate in order to protect the business
owner’s interest of the Customer of that business. The rule
of law not only allows people to understand what is
expected of them in their personal capacities but also set
forth rules for business so that they, too know what is
expected of them in their dealing and transactions (
Johnson & Lalu 2014) the law protects those who work
for a business. it sets Guideline of how treat your
employees, equal opportunities, pay scale, hours, breaks,
benefits and long with a host of other right privileges. In
short the laws for business create an honest environment
where consumers and business owners interest can be
protected and we have ways to solve of any disputes arise.
If these laws are in any ways are violated it sets up
Guidelines for punishment.
Role of law in Society:
Without law our society would be chaotic, uncivilized
mess and anarchy would reign supreme.
The role that law has in society is that it creates a norm
of conducts in the society we live in laws are made to
protect its citizen from harm. It set in way that all citizens
are given equal opportunity, protection from harm no
matter your race, Gender, religion and social standing.
Under the law all its citizens are guarantee equal
protections. In society laws are made to promote the
common good for everyone. That is sets up Guideline for
everyone in society to act in way that brings the Greater
Good. Everyone acted without thinking about the Greater
 58
Good, society would revert to those days where survival
of the fittest was the common sight.
We live in world where we have finite amount of
resources should shared or used. Laws are made on how
to manage these and how we resolve if issues arise over
these resources. If know laws were in place these sources
would be controlled by the string and the wealthy

Introduction to Jurisprudenceviii
The history of the concept of the law reveals that
jurisprudence had its evolutionary beginning from the
classical Greek period to 21st-century modern
jurisprudence with numerous changes in its nature in
various stages of its evolution. Jurisprudence is a concept
to bring theory and life into focus. It deals with the
fundamental principles on which rests the superstructure
of law.
The concept of jurisprudence basically helps in
cultivating one’s own ideas in relation to a particular
theory. In abstract jurisprudence is a subject whose
knowledge is the basis and the foundation of the whole
legal studies. Jurisprudence is a name given to a certain
type of investigation into a law, where we are concerned
to reflect on the nature of legal rules and on the underlying
meaning of legal concepts and on the essential features of
the legal system.
Jurisprudence is both an intellectual and idealistic
abstraction as well as a behavioural study of man in
society. In jurisprudence, we ask what it is for a rule to be
 59
a legal rule and what distinguishes law from morality,
etiquette and other related phenomena.
Meaning
The term jurisprudence has been derived from the
Latin word ‘jurisprudentia’ which means ‘skill or
knowledge of law’.
In the early decades of the 19th century with the
theories propounded by Bentham and Austin, the term
‘jurisprudence’ acquired a definite meaning. Bentham is
known as Father of Jurisprudence was the first one to
analyze what is law. He divided his study into two parts:
1. Examination of Law ‘as it is’ i.e. Expositorial
Approach– Command of Sovereign.
2. Examination of Law ‘as it ought to be’
i.e. Censorial Approach– Morality of Law.
However, Austin concerned himself mainly with the
formal analysis of the English law and its related concept,
which still continues to be the basic concept. Austin’s
ideology that ‘law is the command of the sovereign’
became the structure of English Legal System, which
remained with the formal analysis of law as ‘it is’
(Expositorial) and never became ‘as it ought to be’
(Censorial).

Juristic approach
Ulpian – The Roman jurist defined jurisprudence as
 60
the observation of things, human and divine, the
knowledge of the just and the unjust.
Austin– He calls jurisprudence as the ‘philosophy of
positive law’. The term ‘positive law’ connotes ‘jus
positivum’ which means law lay down by a political
superior for commanding obedience from his subjects. He
preferred to divide his concept into two parts:
1. General Jurisprudence– It includes such subjects
or ends of law as are common to all system.
2. Particular Jurisprudence– It is the science of any
actual system of law or any portion of it.
Basically, in essence, they are the same but in scope
they are different.
Salmond’s Criticism of Austin
He said that for a concept to fall into the category of
‘General Jurisprudence’, it should be common in various
systems of law. This is not always true as there could be
concepts that fall in neither of the two categories.
Holland’s Criticism of Austin
He said that it is only the material which is particular
and not the science itself.
Holland’s Definition– Jurisprudence means the
‘formal science of positive laws’. It is an analytical
science rather than a material science.
1. He defined the term positive law. He said that
 61
Positive Law means the general rule of external
human action enforced by a sovereign political
authority.
2. We can see that, he simply added the word
‘formal’ in Austin’s definition. Formal here
means that we study only the form and not the
essence. We study only the external features and
do not go into the intricacies of the subject.
According to him, how a positive law is applied
and how it is particular is not the concern of
Jurisprudence.
3. The reason for using the word ‘Formal Science’ is
that it describes only the form or the external sight
of the subject and not its internal contents.
According to Holland, Jurisprudence is not
concerned with the actual material contents of law
but only with its fundamental
conceptions. Therefore, Jurisprudence is a
Formal Science.
4. This definition has been criticized by Gray and Dr
Jenks. According to them, Jurisprudence is a
formal science because it is concerned with the
form, conditions, social life, human relations that
have grown up in the society and to which society
attaches legal significance.
5. Holland said that Jurisprudence is a science
because it is a systematized and properly co-
ordinate knowledge of the subject of intellectual
 62
inquiry. The term positive law confines the
inquiry to these social relations which are
regulated by the rules imposed by the States and
enforced by the Courts of law. Therefore, it is a
formal science of positive law.
Salmond– He said that Jurisprudence is Science of
Law. By law, he meant law of the land or civil law. He
divided Jurisprudence into two parts:
1. Generic– This includes the entire body of legal
doctrines.
2. Specific– This deals with the particular
department or any portion of the doctrines.
‘Specific’ is further divided into three parts:
1. Analytical, Expository or Systematic– it deals
with the contents of an actual legal system existing
at any time, past or the present.
2. Legal History– it is concerned with the legal
system in its process of historical development.
3. The science of Legislation- the purpose of it is to
set forth law as it ought to be. It deals with the ideal
future of the legal system and the purpose which it
may serve.
Criticism of Salmond– Critics says that it is not an
accurate definition. Salmond only gave the structure and
failed to provide any clarity of thought.
Keeton- according to him “jurisprudence is the study
 63
and scientific synthesis of the essential principle of law.”
The definition seeks to explain the distinction between
public and private law.
Roscoe Pound– He described Jurisprudence as “the
science of law using the term ‘law’ in the juridical
sense as denoting the body of principles recognized or
enforced by public and regular tribunals in the
Administration of Justice.”
Dias and Hughes– They believed Jurisprudence as
any thought or writing about law rather than a
technical exposition of a branch of law itself.
Scope of Jurisprudence
The scope of jurisprudence has widened considerably
over the years. Commenting on the scope of
jurisprudence Justice P.B.Mukherjee observed,
“Jurisprudence is both an intellectual and idealistic
abstraction as well as the behavioural study of man in
society. It includes political, social, economic and cultural
ideas. It covers the study of man in relation to society.”
This makes the distinction between law and
jurisprudence amply clear. It, therefore, follows that
jurisprudence comprises the philosophy of law and its
object is not to discover new rules but to reflect on the
rules already known.
Whereas, Austin was the only one who tried to limit
the scope of jurisprudence. He tried to segregate morals
and theology from the study of jurisprudence.
 64
Approaches to the study of Jurisprudence
There are two ways to study it-
1. Empirical– Facts to Generalization.
2. A Priori– Start with Generalization in light of
which the facts are examined.
Significance and Utility of the Study of Jurisprudence
1. This subject has its own intrinsic interest and value
because this is a subject of serious scholarship and
research; researchers in Jurisprudence contribute
to the development of society by having
repercussions in the whole legal, political and
social school of thoughts. One of the tasks of this
subject is to construct and elucidate concepts
serving to render the complexities of law more
manageable and more rational. It is the belief of
this subject that the theory can help to improve
practice.
2. Jurisprudence also has an educational value. It
helps in the logical analysis of the legal concepts
and it sharpens the logical techniques of the
lawyer. The study of jurisprudence helps to
combat the lawyer’s occupational view of
formalism which leads to excessive concentration
on legal rules for their own sake and disregard of
the social function of the law.
3. The study of jurisprudence helps to put the law in
its proper context by considering the needs of the
 65
society and by taking note of the advances in
related and relevant disciplines.
4. Jurisprudence can teach the people to look if not
forward, at least sideways and around them and
realize that answers to a new legal problem must
be found by a consideration of present social needs
and not in the wisdom of the past.
5. Jurisprudence is the eye of law and the grammar of
law because it throws light on basic ideas and
fundamental principles of law. Therefore, by
understanding the nature of law, its concepts and
distinctions, a lawyer can find out the actual rule
of law. It also helps in knowing the language,
grammar, the basis of treatment and assumptions
upon which the subject rests. Therefore, some
logical training is necessary for a lawyer which he
can find from the study of Jurisprudence.
It trains the critical faculties of the mind of the
students so that they can dictate fallacies and use
accurate legal terminology and expression.
6. It helps a lawyer in his practical work. A lawyer
always has to tackle new problems every day. This
he can handle through his knowledge of
Jurisprudence which trains his mind to find
alternative legal channels of thought.
7. Jurisprudence helps the judges and lawyers in
ascertaining the true meaning of the laws passed
by the legislators by providing the rules of
 66
interpretation. Therefore, the study of
jurisprudence should not be confined to the study
of positive laws but also must include normative
study i.e. that study should deal with the
improvement of law in the context of prevailing
socio-economic and political philosophies of
time, place and circumstances.
8. Professor Dias said that “the study of
jurisprudence is an opportunity for the lawyer to
bring theory and life into focus, for it concerns
human thought in relation to social existence.”
Jurisprudence is Lawyer’s extraversion
In the words of Julius Stone, the study of
jurisprudence should be integrative, synthetic and
purposive while concentrating towards the need of
humanistic justice. He firmly believed that jurisprudence
is lawyer’s extraversion as it is the lawyer’s examination
of precepts and techniques of the law in the light derived
from present knowledge in disciplines other than law.
A lawyer should not be a mere legal technician
knowing legal texts and procedure but, he should be a
social activist. The ‘extra-legal version’ approach to as an
instrument of social change and reforms has found favour
with the judges of the Supreme Court, notably Justice
S.N.Gajendragadkar, Justice Y.V.Chandrachud, Justice
Chagla, Justice P.N.Bhagwati, and others.
Adopting a pragmatic to the application of law,
Justice Y.V.Chandrachud in Vishnu Agencies (P) Ltd. v.
 67
C.T.O.[AIR 1978 SC 449] observed that “legal fraternity
should not construe the provisions of the constitution in a
narrow and pedantic sense, instead a broad and liberal
spirit should inspire those whose duty is to interpret the
law. A constitution is a living and organic thing which of
all instruments has the greatest claim to be construed ‘ut
res magis valeat quam pereat’ (it is better for a thing
to have effect than to be made void)- the lawyers and
judges ought to extend the constitutional provisions for
elimination of poverty, social inequalities, and economic
injustices.”
Mr Justice Krishna Iyer, a former judge of the
Supreme Court, expounded the philosophy of
jurisprudence as a lawyer’s extraversion. [(Rohtas
Industries v. Its Staff Union, AIR 1976 SC 425);
(Indian Express Newspapers (P) Ltd. v. Its Workers
Union, AIR 1979 SC 137); (Som Prakash Rakhe v. UOI
AIR 1981 SC 212), and other cases] He firmly believed
that “the problem of law is, at bottom, projections of
life…. The root of jurisprudence lies in the soil of
society’s urges and the bloom in the nourishment from the
humanity services.”
Relationship of Jurisprudence with other Social
Sciences
Jurisprudence is closely inter-related with other social
sciences since all of them are concerned with human
behaviour in society.
Paton “observed modern jurisprudence trenches on
 68
the field of social science and of philosophy; it digs into
the historical past and attempts to create symmetry of a
garden out of the luxuriant chaos of conflicting legal
system.”
Dean Roscoe Pound who propounded the theory of
law as a ‘social engineering’ pointed out that
jurisprudence is closely interlinked with ethics,
economics, politics, and sociology which though distinct
enough as the core, are shade into each other. All other
social sciences must co-ordinate with jurisprudence to
make it a functional branch of knowledge.
Sociology and Jurisprudence
This branch is based on social theories. It is
essentially concerned with the influence of law on the
society at large particularly when we talk about social
welfare. G.W. Paton gave 3 obvious reasons as a relation
between law and sociology:
▪ It enables a better understanding of the evolution
and development of law;
▪ It provides great substream for an identity of law
commensurate with human needs and social
interests;
▪ and provides objectivity to legal interpretation
which is need of the hour.
Jurisprudence and Psychology
No human science can be described properly without
 69
a thorough knowledge of Human Mind. Hence,
Psychology has a close connection with Jurisprudence.
Relationship of Psychology and Law is established in the
branch of Criminological Jurisprudence. Both
psychology and jurisprudence are interested in solving
questions such as the motive behind a crime, criminal
personality, reasons for crime etc.
Jurisprudence and Ethics
Ethics has been defined as the science of Human
Conduct. It strives for ideal Human Behavior. This is how
Ethics and Jurisprudence are interconnected:
a. Ideal Moral Code– This could be found in
relation to Natural Law.
b. Positive Moral Code– This could be found in
relation to Law as the Command of the Sovereign.
c. Ethics is concerned with good human conduct in
the light of the public opinion.
d. Jurisprudence is related to Positive Morality in so
far as the law is the instrument to assert positive
ethics.
e. Jurisprudence believes that Legislations must be
based on ethical principles. It is not to be divorced
from Human principles.
f. Ethics believes that No law is good unless it is
based on sound principles of human value.
A Jurist should be adept in this science because unless
 70
he studies ethics, he won’t be able to criticize the
law. However, Austin disagreed with this relationship.
Jurisprudence and Economics
Economics studies man’s efforts in satisfying his
wants and producing and distributing wealth. Both
Jurisprudence and Economics are sciences and both aim
to regulate the lives of the people. Both of them try to
develop the society and improve the life of an individual.
Karl Marx was a pioneer in this regard.
Jurisprudence and History
History studies past events. Development of Law for
the administration of justice becomes sound if we know
the history and background of legislation and the way law
has evolved. The branch is known as Historical
Jurisprudence.
Jurisprudence and Politics
In a politically organized society, there are
regulations and laws which lay down authoritatively what
a man may and may not do. Thus, there is a deep
connection between politics and Jurisprudence.
 1

Module – 2
Schools of Jurisprudence
Summary
The Five Schools of jurisprudence:ix
Jurisprudence can be mainly studied through five
schools which include-
Philosophical School:
The philosophical school of jurisprudence mainly
concerns itself with the reason behind the establishment of
certain laws. It covers the vast variety of laws and what
they are intending to offer to the society. For example, we
can say that criminal law is an eminent branch and type of
law, so philosophical school of jurisprudence tells us why
criminal law exists in the society and what it is intending
to achieve, i.e., to punish for dangerous crimes which are
usually not reversible or compensated. Now let us look at
the eminent scholars who supported and worked for this
school. The names of the scholars are: Grotius, Immanuel
Kant, and Hegel. They believe that law is the reason and
foundation behind human identity.
Historical School:
Historical school believes that,” law is result of the
development of the customs of the past.” The historical
school say that law developed from the customs that were
prevalent in the society. These customs exist in the society
to represent and depict the national conscience as
 2
principles of justice and public utility. They also believe
that law was not given by a particular authority but was
founded by the people and their common spirit. Some
eminent jurists of this school are Savigny, Sir Henry
Maine, and Edmund Burke. Savigny is the main founder
of this school and has given the theory of Volksgeist. The
theory of Volksgeist states that “law is developed from the
free will of the people and that is how it lives on for so
many years.” It also states that law develops with the
increment and progress of a country and it deters with the
determent of a country. Savigny also states that beginning
of law lies in the well-known soul of general population.
He went on to call this Volksgeist.
Realist School:
The Realist School was developed in America and
exists in American jurisprudence. Realist School states
that law must always be in alignment with a country’s
financial matters and statement. This school believes in
the realist aspect of law and states that law is a tool for a
social change. They emphasize on the fact that law exists
for the needs of the society. The Realist school also is
successful is mentioning that law helps in balancing the
conflict interests in society. Some eminent scholars who
support this school of thought are: Oliver Holmes and Karl
Llewellyn. Holmes rightly mentions that, “ Law is the
thing that the courts do; it isn’t simply what the courts
state.” Holmes mentions that life of law was based not on
rationale but in, involvement. Llewellyn mentions ,
“Realism isn’t so much another school of jurisprudence as
 3
another philosophy in jurisprudence.”
Sociological School:
The sociology school of jurisprudence was led by
eminent legal advisors and sociologists such as Herbert
Spencer, August Comte, Roscoe Pound, etc. The
sociological school states that law is important for the
development of a society. They also view law as a social
organisation which has a direct impact on the society.
They tend to put more emphasis on the utilitarian part of
law as opposed to conceptual substance. Ehrlich was
another eminent legal advisor of this school of thought, he
clarified and explained the social premise of law. He also
popularised the term of “social impulse” and defined it as
the collective influence of a certain feeling shared by a
group of people i.e., socially. Roscoe Pound laid emphasis
on visualizing law from the perceptions of people. This
school of thought and their approach says that law exists
for the needs of the people.
Analytical School:
The analytical school of thought is mainly based on
the ideology and the theory put forth by Austin. Hence this
school can also be called Austinian school. Austin
explained that law has three features: 1) It is a type of a
command; 2) It is laid by sovereign, which is generally a
political sovereign; 3) It is enforceable by sanction and
penalties are usually enforced if it is broken. Austin then
defines commands saying, “ commands are the
expressions of desire given by superiors to inferiors,
 4
usually given by a higher authority to a lower or no
authority. This school of thought believes that laws are
general commands and must be obeyed at any cost. They
also integrally believe in the concept of crime and
punishment. Austin also lays emphasis on law and its
relation with sovereign. He states that, “ Law is law only
because it is made and enforced by the sovereign,” and,”
sovereign is sovereign because it makes laws.” This
school of thought also included scholars like Jeremy
Bentham.
Introductionx
The word ‘jurisprudence’ derived from the Latin
word ‘jurisprudentia’ which means knowledge of law. The
Latin word ‘juris’ means law and ‘prudentia’ means skill
or knowledge. Thus the term jurisprudence signifies
knowledge of law and its application. Jurisprudence
means the interpretation of the general principles based on
which actual rules of law are recognised. Jurisprudence is
concerned with the rules of external conduct which people
are forced to obey. Some of the notable definitions of
jurisprudence as expounded by jurists are as follow:
As per Cicero, “Jurisprudence is the philosophical
aspect of knowledge of law.”
According to Salmond, “Jurisprudence is the science
of the first principles of civil law.”
According to John Austin, “Jurisprudence is the
philosophy of positive law.”
 5
In the views of Holland, “Jurisprudence as the formal
science of positive law.”
As per H.L.A. Hart, “Jurisprudence is the science of
law in a broader perspective by co-relating law and
morality.”
Rosco Pound defines Jurisprudence as “the science of
law denoting the body of principles recognised or
enforced by public and regular tribunals in the
administration of justice”.[1]
Law is the subject matter of jurisprudence since the
latter deals with the study of law. Austin thought it is
necessary to define law in order to establish the province
of jurisprudence. The history of the concept of law
discloses that jurisprudence has dissimilar meanings at
different periods. Therefore it is difficult to attempt a
singular definition of the term.
Concept of law & schools of jurisprudence
The schools of jurisprudence has defined law in
various aspects. Many jurists have attempted to define the
concept of law in clear aspects. The concept of law shall
be mentioned in detail under the following schools of
jurisprudence. They are as follows:
o Natural Law Theory
o Analytical/Positive School of Jurisprudence
o Historical School of Jurisprudence
o Philosophical/Ethical School of Jurisprudence
 6
o Sociological School of Jurisprudence
o Marxism School of Jurisprudence
o Realist Theory of Law
Natural law theory
There is no consensus about the definition and exact
meaning of Natural Law. The term Natural Law in
jurisprudence implies those standards and standards which
should have started from some preeminent source other
than any political or common specialist. It symbolizes
Physical Law of Nature-dependent on moral standards
which has all-inclusive relevance at all places and terms.
It has regularly been utilized either to safeguard a change
or to keep up business as usual as indicated by necessities
and prerequisite of the time. For instance, Locke utilized
Natural Law as an instrument of progress, however
Hobbes utilized it to keep up the present state of affairs in
the public arena. The ideas of ‘Rule of Law’ in Britain and
India and ‘due process’ in USA are built up dependent on
Natural Law.
Natural Law is eternal and unchangeable, as having
existed from the commencement of the world. Man does
not make natural Law; he only discovers it. Any external
agency cannot not enforce natural law. Natural Law is a
law which does not have legislation backing. Basically it
is an outcome of preaching of the philosophers, prophets,
saints etc. and thus it is a higher form of law. Natural Law
is also known as Divine Law, Law of Nature, and Law of
God. Divine Law implies the order of God forced upon
 7
men. Natural Law is likewise the Law of Reason, as being
built up by that reason by which the world’s governed, and
furthermore as being routed to and seen by the sensible
idea of man. It is additionally the widespread or Custom-
based Law as being of universal validity, the equivalent in
all spots and authoritative on all people groups, and not
one thing at Athens.
Ultimately in present day times we think that it’s
named as “moral law” just like the declaration of the
principles of morality. The Natural Law prevents the
probability from claiming any inflexible partition of the
‘is’ and ‘ought’ part of law and accepts that such a
detachment is pointlessly causing confusion in the field of
law. The supporters of Natural Law contend that the
thoughts of ‘justice’, ‘right’ or ‘reason’ have started from
the idea of man and the Law of Nature and, hence this
perspective can’t be disposed of from the domain of law.[5]
Heraclitus
The idea of Natural Law was created by Greek
thinkers around fourth century. B.C. Heraclitus was the
primary Greek logician who pointed at the three principle
highlights of Law of Nature, to be specific, (I) destiny, (ii)
order and (iii) reason. He expressed that nature is
definitely not a scattered heap of things, however there is
a clear connection between the things and a definite order
and rhythm of occasions. As per him, ‘reason’ is one of
the basic components of Natural Law.
Socrates
 8
Socrates has stated that a man can distinguish
between good and bad and can appreciate the moral
values. This human ‘insight’ is the foundation to review
the law. He did not deny the ability of the Positive Law.
Socrates pleaded for the necessity of Natural Law for the
safety and stability of the nation, which was one of the
major need of the age. His apprentice Plato supported the
same theory. However, it is in Aristotle that we find a
proper and logical elaboration of the theory.
Aristotle
According to Aristotle, man is a part of nature in two
means. Firstly, he is a part of the creatures of God,
secondly, he possesses awareness and reason by which he
can form his will. By this reason, man can determine the
eternal norm of justice. The man’s reason being the part of
nature, the law discovered by reason is called ‘natural
justice’. The Law should be reformed or amended rather
than being broken.
Natural Law and Roman law
The Romans did not confine their study simply to
theoretical thoughts but carried it to give an applied shape
by transforming their rigid legal system into a living law.
Natural Law implemented a very constructive influence
on the Roman law through separation of Roman law into
three divisions namely ‘Jus civile’, ‘Jus gentium’ and ‘Jus
naturale’. Civil law called ‘Jus civile’ applied only to
Roman citizens. The law which governed Roman people
as well as foreigners was said to be ‘Jus Gentium’. Jus
Gentium is encompassed of the universal legal doctrines
 9
which comply with Natural Law. Later, both these were
combined to be known as ‘Jus naturale’.[6]
Natural Law: Indian Scenario
Hindu legal system is perhaps the most ancient legal
system of the world. The Hindus established a logical and
comprehensive law at early times. According to the Hindu
understanding, Law owes its existence to God. Law is
provided in ‘Shruti’ and ‘Smritis’. The king is to execute
that law, and he is bound by it, and the king is disobeyed
if it goes against this law. The puranas are full of occasions
where the kings were dethroned and beheaded when they
went in contradiction of the recognised law.
Medieval Period
The opinions of Thomas Aquinas are regarded as a
representative of the fresh theory. His society opinions are
comparable to Aristotle’s opinions. Law is, according to
Acquinas, ‘ an ordinance of reason for the common good
produced by him who cared for and proclaimed the
community.’ St. Thomas Aquinas classified laws, namely,
(1) Law of God or external law, (2) Natural Law disclosed
through “reason,” (3) Divine Law or Scripture Law, (4)
Human Laws that we now call “Positive Law.” Natural
law is component of the law of God. It is that component
that in natural reason shows itself. He considered the
power of Church to interpret Divine Law. Therefore, it
also has the power to give judgment on Positive Law’s
goodness.
Hugo Grotius (1583 – 1645)
 10
In the concept of natural law advocated by Grotius,
there is inconsistency. Grotius says a ruler must follow the
‘ natural law ‘ and, on the other hand, he argues that the
ruler should not be disobeyed. However, it was evident
that Grotius feared the stability of political order and
maintenance of international peace which was the need of
that particular point of time.
Rudolf Stammler (1856 – 1938)
Stammler described the law as “species of will, other-
looking, self-authoritative and inviolable.” For him, the
greatest expression of the social existence of man was a
just law aimed at preserving individual freedom.
According to him, the two basic principles needed for a
just legislation were: (1) respect principles, and (2)
community engagement principle. The law of nature, he
believes, implies ‘ just law ‘ which harmonizes the aims
of society. The aim of law is not to safeguard one’s will,
but to unify everyone’s objectives.
Kohler
Kohler described the law as “the norm of conduct that
emanates from the whole and imposes on the person as a
result of the internal impulse that urges people towards a
decent type of life.” He claims there is no eternal law, and
in the course of evolution the law forms itself as society
advances morality and culture.
Analytical/positive school
Legal positivism is seen in legal jurisprudence around
 11
the globe as one of the most important schools of thought.
This theory was created around the 18th and 19th centuries
by jurists like John Austin and Jeremy Bentham.
Subsequently, influential jurists such as Herbert Lionel
Adolphus Hart and Joseph Raz advanced this school of
thought.
The above-mentioned jurists have substantial
differences of opinion, but the prevalent concept that all
the above-mentioned jurists have is to analyse law as it is.
Therefore, they have the common objective of helping
people understand the law of the land as it is and not as it
ought to be. Therefore, the legal positivist school only
aims to identify the law as it is laid down by a superior
body and not how it should have been.[7] The major
exponents of this school are Jeremy Bentham, John
Austin, Holland, Salmond and H.L.A Hart.
Jeremy Bentham
Jeremy Bentham is said to be the father of the
Analytical school of jurisprudence. Bentham rejected the
natural law and expounded the principle of utility with
scientific accuracy. He partitioned jurisprudence into
censorial and expository. The former handles the law as it
is, while the latter handles the law as it ought to be.
Analysis of censorial jurisprudence by Bentham is
indicative of the reality that the effect of natural law had
not disappeared entirely. That is why he talked of utility
as the governing rule. Bentham believes that law is a
product of state and sovereign. As per Bentham’s concept
of law, law is an imperative one for which he referred the
 12
term ‘mandate’. A law may be defined as an association
of sin declarative of a violation conceived or adopted by
the sovereign in a state concerning the conduct to be
observed in a certain case by a certain person or class of
persons who, in the case, in question are or supposed to be
subject to his power.
John Austin
John Austin, the father of the Analytical School of
Jurisprudence, limited the scope of jurisprudence and
prescribed its boundaries. As per Austin, analysis is the
principal technique of study in jurisprudence. He built on
the foundation of expository jurisprudence laid by
Bentham and did not concern himself with extra-legal
norms. Austin differentiated the science of legislation and
law from morals. Austin divided Jurisprudence into
general jurisprudence and particular jurisprudence.
According to Austin’s opinions, the assessment of positive
law is to be achieved through the operation of logic on law
without consideration of law, and he stressed that it is
difficult to figure out the universal components in law
through the operation of logic. Austin’s approach is
applicable to a unitary polity based on parliamentary
sovereignty. It does not have the relevance to legal
systems as in India and the USA.
In common use, Austin defines law, means and
includes things that cannot correctly be called ‘ law.
‘Austin described law as ‘ a rule laid down by an
intelligent being having authority over him to guide a
smart being. Law are of two kinds: Law of God and
 13
Human Laws:
This is again divided into two parts: Law of God –
Laws set by God for men. Human Laws – Laws which are
set by men for men. Human laws of two types can be split
into two groups: 1. Positive law; these are the rules set by
political superiors as such, or by individuals who do not
act as political superiors but act in pursuit of the rules
granted by political superiors. Only these statutes are the
appropriate matter of jurisprudence. 2. Other Laws;
legislation not established by political superiors (set by
individuals who do not act in the ability or personality of
political superiors) or by individuals pursuing legal rights.
The law correctly so-called the positive law relies on the
sovereign political power. Therefore, every law is a
command according to Austin. So correctly so-called laws
are a command species.
Commands are of two types: Las or rules and
Occasional commands.
A command is a law or guidelines where it usually
requires individuals to act or forbear. It is occasional or
particular when it requires action or forbearance from a
particular person. Law is a command that imposes a course
of behaviour on an individual or individuals. It needs
significance and can therefore emanate only from a
determinable source or author (a person or individual
body). Laws come from superiors, binding and compelling
inferiors. Superiors invested with authority: the power to
inflict pain or evil on others and thus force them to adhere
to their commands.
 14
Thomas Erskine Holland
Holland is another exponent of the Analytical school
of jurisprudence. He followed the footsteps of Austin. He
varies from Austin as to how the word positive law is
interpreted. According to Holland, all laws are not
sovereign’s command; instead, he describes law as rules
of internal human action enforced by a sovereign political
power.
John Salmond
There are differences between the predecessors and
Salmond. These difference of opinion are as follows:
Salmond gives up the attempt to find the universal
elements in law by defining jurisprudence as the science
of civil law. As per Salmond there is nothing like universal
element in law because it is the science of the law of the
land and is thus conditioned by factors which prevail in a
particular state.
He deals with law as it is but law to Salmond is to be
well-defined not in relation to the sovereign but in terms
of the courts. Law is something which originates from
courts only.
Salmond did not agree with Austin that analysis of
law is done with the assistance of logic only. According to
him the study of jurisprudence which disregards ethical
and historical aspects will become a barren study.
L.A. Hart
 15
According to Hart, the law is a system of two types of
rules the union of which provides the key to the science of
jurisprudence. These rules, he called as ‘primary’ and
‘secondary’ rules. Hart rejects Austin’s view that law is a
command and Austin’s command theory failed to
encompass the variety of laws.[9] Hart stated that primary
rules are duty imposing while secondary rules confer
power and the union of the two as the essence of law. Hart
stated that primary rules are those who lay down standards
of behaviour and are rules of obligation.[10] The
secondary rules are additional to and concern the primary
rules in numerous ways. For instance, they specify the
means in which the primary rules may be determined,
introduced, rejected or varied, and the manner in which
their violation may be finally determined. Hart considers
legal system is a set of social rules. These rules are social
in two senses: first in that they regulate the conduct of
members of societies (they are guides to human conduct
and standards of criticism of such conduct, secondly, in
that they derive from human social practices).[11]
Hans Kelson’s Pure Theory of Law
Kelson’s pure theory of law states that law must
remain free from social sciences. Kelson aimed to
establish a science of law which will be pure in the sense
that it will strictly abstain from all metaphysical, ethical,
moral, psychological and sociological elements.
According to Kelson law is an order of human behaviour.
The theory is summarised as under:
 16
The aim of the theory of law as of any science is to
reduce chaos and multiplicity and to bring unity.
It is knowledge of what law is not of what the law
ought to be.
Law is a normative, not a natural science.
Legal theory is a theory of norms. It is not concerned
with the effectiveness of legal order.
A theory of law is formal, of the way of ordering
changing contents in a specific way.
The relations of legal theory to a particular system of
positive law is that of possible to actual law.
The theory of Kelson is basically about the concept of
norms. For Kelson, an understanding of a hierarchy of
norms is jurisprudence. A norm is merely a hypothetical
preposition. Jurists like Friedman criticise his idea of
norms as the concept of grund-norm is vague. A grund
norm derives its efficacy from the fact of its minimum
effectiveness. Kelson does not provide the criteria for
minimum of effectiveness measurement.
Historical school
The historical school follows the concept of human-
made law. Law is framed for the individuals and by the
individuals ‘ means the law should be in line with people’s
evolving requirements. The Historical School of
Jurisprudence’s fundamental source is people’s habits and
customs that change according to their requirements and
 17
needs. It’s also called the Jurisprudence Continental
School.
The Historical School believes that, according to their
evolving requirements, law is created by individuals.
Habits and customs are the primary sources of the
Historical School. Historical school has emerged as a
response against the theories of natural law, according to
Dias.[12] The following are the jurists of the Historical
School of Jurisprudence. They are:
Montesquieu
According to Sir Henry Maine, Montesquieu was the
first jurist to embrace the historical method of
understanding the legal institution. He laid the foundation
for the historical school in France. According to him, it is
irrelevant to discuss whether the law is good or bad,
because the law depends on the social, political and
environmental conditions that prevail in society.
Montesquieu discovered “The law generates climate, local
situations, accidents or impostures,” He believed that law
had to alter according to society’s evolving requirements.
He has not established any theory or philosophy of the
law-society relationship. He proposed that the law should
respond to the location’s requirements and alter according
to people’s time, location, and needs. One of
Montesquieu’s best-known works was his book “The
Spirit of Laws.” He reflects his views in political
enlightenment concepts in this novel and indicates how
laws are needed to change according to people’s and
society’s requirements.
 18
Friedrich Carl Von Savigny
Savigny is the Historical school’s founder. He
asserted that the legal system’s consistent nature is
generally due to a lack of understanding of its history and
origin. According to him, the law is “a result of moments
the germ of which, like the germ of the State, remains in
the nature of people as being produced for culture and
which grows different types from this germ, depending on
the environment of the factors that perform on it.” Savigny
thinks that it is not possible to borrow the law from
outside. Moreover, the main source of law is the
consciousness of the people. He was of the opinion that
the law of the state grows with the strengthening of the
nationality of the state and that law dies or fade away when
nationality loses its power in the state.
Volksgeist means “national character”. According to
Savignty’s Volksgesit, The law is the product of the
people’s general consciousness. The Volksgeist idea was
used as a warning against the hasty legislation and brought
the abstract revolutionary thoughts on the legal system
unless they supported the people’s general will. Savigny
believed that law should not be discovered from
intentional legislation, but should be created and arise
from people’s general awareness.
Henry Maine
Sir Henry Maine was the founder of the English
Historical School of Law. Savigny’s views of Historical
school was carried forward in England by Sir Henry
 19
Maine.
Maine studied the Indian legal system deeply as he
was law member in the Council of the Governor-General
of India b/w 1861 to 1869. The best things incorporated
Maine’s ideas in the theories of Savigny and Montesquieu
and he avoided what abstract and unreal Romanticism
was. Maine favoured legislation and codification of law,
unlike Savigny.
Maine describes development of law:
It is thought that the rulers act under divine
inspiration. The laws are also created on the rulers ‘
instructions. For instance, Themistes of Anicent Greek.
The King’s judgement was regarded as God’s judgement
or some divine body. King was just an executor of God’s
decisions, not the legislator. Then King’s orders became
customary law. In the ruler or majority class, the custom
prevails. Customs appear to have succeeded the king’s
right and officials.
The understanding and administration of customs
comes into the hands of a minority, the understanding of
customs comes into the hands of a minority class or
normal class because of the weakening of the law-making
power of the initial lawmakers like Priests. So the ruler is
superseded by a minority who obtain control over the law.
In the fourth and last stage, the law is codified and
promulgated.
Georg Friedrich Puchta
 20
Puchta was a German Jurist. He was a disciple of
Savigny and a great jurist of Historical School of
Jurisprudence. Puchta’s ideas were more logical and
improved than Savigny’s ideas. He traced the
development and evolution of law from the very
beginning. His ideas mainly focused on the situation when
conflict arises between the general will and individual
will. In the conflict between general will and individual
will, the state came into existence and find out the midway
to resolve the conflict.
The main concept of Puchta’s ideas was that “neither
the people nor the state alone can make and formulate
laws”. Both State and individual are the sources of law.
Contributions:
Puchta gave twofold aspects of human will and the
origin of the state.
Despite some points of distinction Puchta and
Savigny, he improved the views of Savigny and made
them more logical.
Philosophical school
The Philosophical School is not concerned with what
the actual law of the past and the present is. Their effort is
to develop the idea of justice as an ethical principle and
consequently to create an ideal system of law.
In the eighteenth century, they put their faith in the
law of nature which could be discovered by human reason.
In the nineteenth century they engaged themselves in the
 21
metaphysical discussions of the existing law and in
attempts to create a perfect system of law in codes and
legislation.
In the twentieth century, they devoted themselves to
social interests and ideals and the formulation of theories
of social justice.
The jurists of the Philosophical School have always
considered law as an abstraction and based it upon abstract
ethical principles of justice. A law, as such, is removed
from objectivity whereas it ought to be definite and
precise, capable of universal application. Idealism must be
mixed with realism. The following are the viewpoints of
jurists:
Hugo Grotius
Hugo Grotius worked as a jurist in the Dutch Republic
and laid the foundation for international law, based on
natural law. Grotius removed the natural law from the
jurisdiction of moral theologians and made it the business
of lawyers and philosophers, by asserting their very
nature, natural laws were authoritative in themselves, with
or without faith in God. He prompted the concept of ‘just
war’ as are which was required by natural, national divine
law under certain circumstances. He developed a series of
rules for ‘right conduct’ of war, based on the principle that
actions in a war should ‘serve the right’.
Jean Jaques Rousseau
Rousseau thought that the enslavement of modern
 22
man to his own requirements was accountable for all kinds
of social ills, from the exploitation and domination of
others to poor self-esteem and depression, Rousseau
thought that good government must have as its most basic
goal the liberty of all its people. In specific, the social
agreement is Rousseau’s effort to imagine the type of
government that best affirms all its citizens ‘ individual
liberty, with certain limitations inherent in a complicated,
contemporary, civil society. Rousseau recognized that as
long as property and regulations exist, individuals in
contemporary culture can never be as completely free as
they are in the state of nature, a point that Marx and many
other communist social philosophers echoed later.
Immanuel Kant
Immanuel Kant is one of the most influential
philosophers in the history of western philosophy. He
developed his metaphysical method further and held that
ethics and law are not the same thing. According to Kant,
ethics relates to man’s spontaneous acts while law deals
with all those acts to which a man be compelled. Kant
states that law regulates man’s external conduct. He stated
that compulsion should be exercise man’s conduct. As per
him, Law is the total of the conditions under which the
personal wishes of man be reconciled with the personal
wishes of another man following a general law of freedom.
Thus Kant considered compulsion as an essential element
of the law, and a right is nothing but a power to compel.
Sociological school
 23
Auguste Comte (1798-1857) was a French
Philosopher. Comte used the word “Sociology” for the
first time and defined sociology as a positive social facts
science. He said society is like an organism, and when it
is guided by Scientific Principles it could advance. Thus,
he is making excellent attempts to use the law as an
instrument through which human society retains itself and
advances.
Sociological School’s concept is to demonstrate a
law-society relationship. This school put more emphasis
on the legal view of every issue and diversity that occurs
in society. Law is a social phenomenon and there is a main
or indirect relationship between law and society. The
Sociological School of Jurisprudence focuses on
balancing the state benefit and the realization of the
person. The Sociological School of Jurisprudence
examines the law-sociology connection. There are two
distinct elements to each request or idea. One is
sociological, and the other is legal.
The sociological method of jurisprudence that
resulted from the change in the political shift from the
doctrine of laissez-faire, the industrial and technological
revolution and, finally, the centred historical school. The
connection between the law and the social welfare state of
the modern century sought to study law as seeking the
social source of law and legal institutions, to examine law
as a specified social phenomenon, and finally to judge law
by its social usefulness.
Montesquieu
 24
Montesquieu was a French philosopher, and he paved
the way of the sociological school of jurisprudence. He
was of the view that the social condition of society
somehow influences the legal process. He also
acknowledged the significance of history as a means of
understanding society’s composition and clarified the
significance of studying society’s history before
formulating law for that particular society.
In his book ‘ The Spirit of Laws, ‘ he wrote, ‘The
features of a country should be determined by the law, so
that they should relate to the climate of each country, the
quality of each soul, its situation and extent, the main
occupations of the natives, whether they are husbandmen,
huntsmen or shepherds, the degree of freedom that the
constitution will bear on the religion of the residents, their
inclinations, wealth, numbers, trade, customs and
manners.’
Eugen Ehrlich
Eugen Ehrlich is regarded as the sociology of law
founder. Sociology of Law is the law study from the
sociological point of view. Ehrlich saw society as the main
source of law, and by society he meant “men’s
association.” Ehrlich had written that “the centre of
gravity of all legal developments is not in law or judicial
decisions but in society itself.” He asserted that society is
the primary source of law and a stronger source of law
than law or judgment.
Rosco Pound
 25
Pound was an American Legal Scholar. His view is
that law should be studied in its actual working and not as
it stands in the book. Roscoe Pound gives the theory of
Social Engineering in which he compared lawyers with
the Engineers. Engineers are required to use their
engineering skill to manufacture new products. Similarly,
social engineers are required to build that type of structure
in the society which provides maximum happiness and
minimum friction.
According to Pound, “Law is social engineering
which means a balance between the competing interests in
society,” in which applied science is used for resolving
individual and social problems.
Social Engineering is balancing the conflicting
interest of Individual and the state with the help of law.
Law is a body of knowledge with the help of law the large
part of Social engineering is carried on. Law is used to
solve the conflicting interest and problems in society. He
mentioned that everybody has its interest and considered
it supreme over all other interest. The objective of the law
is to create a balance between the interests of the people.
Leon Duguit
Leon Duguit was a French Jurist and leading scholar
of Droit Public (Public Law). Duguit was greatly
influenced by Auguste Comte and Durkheim. He gave the
theory of Social Solidarity which explain the social
cooperation between individuals for their need and
existence.
 26
The word ‘ Social Solidarity reflects society’s power,
cohesiveness, collective awareness, and viability. ‘Leon
Duguit’s Social Solidarity explains men’s
interdependence on his fellow men. Without relying on
other men, no one can survive.
The law’s aim is to encourage social solidarity among
people. Leon Duguit therefore regarded the law to be a bad
law that does not encourage social solidarity. He also said
that each individual had the right and obligation to
encourage social solidarity. For example, in India,
everyone follows the codified legislation. It is therefore
promoting social solidarity.
MARXISM
Marxist theory of law is mainly related to the
doctrines of Karl Marx (1818-1883) and Friedrich Engels
(1820 – 1895). It is historical in part and sociological in
part. Marxist theory of law’ differs significantly from
other theories and philosophies of law mentioned in the
theory of law. Positivism, in its various forms, is mainly
based on current legal institutions on which and from
which an assessment of the law and the legal system can
be drawn. The primary characteristic of the ‘ socialist legal
theory ‘ is that a legal system must be based on Karl
Marx’s and his successors ‘ political and economic
philosophy.
Karl Marx’s Communist Manifesto, printed in
London in 1848, was one of the earliest documents of
great importance in the development of communism in
 27
general, and of socialist legal theory in particular. The
Communist Manifesto’s argument is simple and
characterized by the early statement: “The history of all
society that exists hitherto is the history of class
struggles.”
Since class struggle lies at the base of social conflict
and social and economic development, the typical stages
of a community’s development must be traced out. In a
primitive stage of the exploitation of men by men there is
slavery, an institution nowadays universally condemned.
In rigorous accordance with his carefully developed
world outlook, Karl Marx fashioned a theory of law. The
study was, for Marx, a means to an end. The end was
society’s revolutionary transformation. A comprehension
of the nature of social phenomena such as economics,
politics, and law would guarantee proper chartering of the
route to revolution. Marx said, “Up till now philosophers
have merely interpreted the world, the point, however, and
is to change it”. An understanding of jurisprudence
demands more than a static analysis. According to Marx,
it must encompass a study of the nature of law within a
society in flux. There are three doctrines in Marxist
jurisprudence: dialectical materialism, financial
manufacturing legislation, and historical materialism.
Law & State
In order to grasp and comprehend the Marxist notion
of State and Law, one must first be acquainted with the
Marxist theory of the origins and significance of law and
 28
state as described by Engels in his book Origin of Family,
Private Property and State (1884). In the beginning,
according to Engels, there was a classless society in which
all people enjoyed the same position with regard to the
means of production; individuals were equal and
independent from each other since the means of
production were free and available to all. They respected
rules of behaviour but these rules were not legal rules
because they were based solely on habits and
corresponded to present behaviour, neither enforced nor
sanctioned by the use of force.
Later, by dividing labour and dividing it into classes,
primitive society became socially divided. One of these
classes took possession of the means of manufacturing
itself, dispossessing the others that it then started to
exploit. In moment, legislation and state were born at this
movement. There is a link between these two concepts for
the Marxists. Law is a human conduct rule that differs
from other behavioural laws because it includes coercion
that is the state’s intervention. The State is a social agency
that ensures that this principle is respected either by the
threat of the use of force. Without a state there is no law,
and without law there is no state; state and law are two
different words that describe the same thing.
State and law are the outcomes of a particular social
financial framework. They are discovered only at a
specific point of their evolution in a certain type of culture.
Only when society is split into social classes, one of which
exploits the other or others economically, do law and the
 29
State appear. In such a situation, the ruling class has
recourse to law and the state in order to strengthen and
perpetuate its domination.
The law is the instrument which, in the class struggle,
safeguards the interests of the ruling class and maintains
social inequality for its profit. It can be defined as that
series of social norms which regulate the dominating
relationship of the ruling class to the subjugated class, in
those areas of this relationship which cannot be
maintained without recourse to the oppression wielded by
a solidly organised state, and the state itself, is the
organization of the exploiting class in order to protect its
own class interests.
Human history is mainly the history of class conflict:
in other words, it is the ongoing fight of one class or
another to capture the means of production and thus
develop its dictatorship. History’s turning points are
marked by exploited class wins that turn into the
exploiting class. The emergence of a fresh social class
reflects a step forward because it corresponds to a more
sophisticated form of production, more in line with
technological progress and society’s overall aspirations.
However, society will continue to suffer from a
fundamental deficiency as long as the means of production
stay the property of only a few and so long as there are
those who are exploiting and those who are being
exploited.
Realist theory of law
 30
The realist’s movement in United States represents
the latest branch of sociological jurisprudence which
concentrates on decisions of law courts. The realists
contend that law has emanated from judges; therefore, law
is what courts do and not what they say. Realist’s
exponents state that judges are the lawmakers.
However, modern realism differs from sociological
school as unlike the latter, they are not much concerned
about the ends of law, but their main attention is on
scientific observation of law, and it is actually functioning.
The contention of realists is that judicial decisions are not
based on abstract formal law, but the human aspect of the
Judge and the lawyer also has an impact on court’s
decision.
It was around 1930s that some American jurists
notably Holmes, Cardozo and Gray raised their voice
against legal conceptualisation and stressed on the study
of law as it operates and functions. Realists combined
analytical positivism and sociological ideologies in their
legal approach law and social institutions. Realists uphold
only Judge made law as genuine law, and they do not give
any importance to laws enacted by legislatures. Realists
believe that certainty of law is a myth.
It must be stated that the realist movement in United
States owes its origin to pragmatic approach to law in early
decades of twentieth century. The progressive legal
thinkers denied to accept law as an abstract conception and
tried to base it on facts and actions.
 31
According to Goodhart, the main characteristic
features of realist jurisprudence are as follows:
Realists think there can be no certainty about the law
as its predictability depends on the collection of facts to be
decided by the tribunal.
They do not favour formal, logical, and conceptual
legislative strategy.
They lay greater stress on the psychological approach
to the proper understanding of law as it is concerned with
human behaviour and convictions of the lawyers and
Judges.
The importance of legal terminology is opposed by
realists.
They prefer to evaluate any part of the law in terms of
its effects.
It presupposes that law is intimately connected with
the society, and since society changes faster than law,
there can never be certain about law. There is no place for
idealism in law and therefore, law as it ‘is’ must be
completely divorced from law as it ‘ought’ to be.
Oliver Windell Holmes
The noted American Jurist Oliver Windell Holmes
discussed law from “the bad man”, i.e., the person who
was before the court as an accused or wrongdoer. The
concern of the judge is to do justice in the case before him,
and if that required a creative interpretation of existing
 32
rules, he should certainly resort to it. The judge has to
apply the law as he finds it and not to seek to rectify
perceived inadequacies by the use of creative
interpretation. Holmes asserted that where there is a gap
in the law, judges are required to take account of precedent
but where this is unclear, he must decide the best way to
proceed and the result may be a decision which is in some
way innovative, but the fundamental principles are always
part of the law.
Scandinavian Realism
Besides the American realist movement, a
simultaneous wave of realism also developed in Sweden.
There was, however, one material difference between
American realism and the Swedish realistic movement.
Pointing out the difference between the two, Dr Allen
observed, If American realism is ruling skeptic,
Scandinavian realism may be described as metaphysical
sceptical.
There is no place for a priori pre-conceptions for
which there is no scientific basis. Thus Scandinavian
realists discard from law all a priori notions of natural law,
abstract conceptions and idealism because they are all
purely theoretical precepts without any practical utility.
Supporting this contention of Olivecrona, Professor Ross
also projected a view that “law in all its forms is a social
reality devoid of doctrinal conceptions like morality,
idealism, natural law and theoretical (metaphysical)
conceptions such as right, duty, sovereignty etc. which
formed the core of analytical school of jurisprudence in
 33
England.
According to Bodenheimer, Scandinavian Realism
differs from the American realist school in two major
aspects, namely, (1) it is more speculative in approach to
legal problems and (2) it does not devote as much attention
psychological behaviour of Judges as the American
realists do. However, both adopt an empiricist attitude
towards law and life and give more weight to the social
effects of law with emphasis on judicial decisions. For
Julius Stone, Realist movement is a gloss on the
sociological approach to jurisprudence.
Karl Olivecrona
Professor Olivecrona emphasised the study of law as
a social fact. According to him, law is nothing but a ‘set
of social facts’. He rejected the view that laws are
commands or an expression of the will of the state and
argued that they are independent imperatives issued by
constitutional agencies of the state from time to time and
they operate in the mind of the judge while reaching a
particular decision. He propagated the view that law is a
set of independent imperative prescribed by law agencies
such as Courts, Parliament etc. producing a set of social
facts based on the application of organised force of the
State.
Conclusion
The concept of law is still a developing area where it
can have various abstracts as per the current scenario. The
schools of jurisprudence have provided their views on the
 34
concept of law as per their ideologies and thinking. There
are various criticisms for the schools by different jurists.
Thus, concept of law is a difficult concept to be explained
as to have a clear definition. Hence the viewpoints of
various jurists and their school of thought may be
considered for further development of this area and its
practical application.

Western thoughts and jurisprudencexi

Introduction
We have already seen the definition and meaning
of jurisprudence. Let’s see in brief about the origin and
development of jurisprudence. This along with various
definitions given by many jurists and scholars makes clear
that the sense of jurisprudence is originated from the
western legal thoughts. (Refer definition and meaning for
better understanding)
Origin of jurisprudence
• Indian jurisprudence
The Indian jurisprudence owes its origin to the
ancient concept of “Dharma” which was considered to be
the best way to discipline one’s mind. The practice of
Dharma enabled citizens to inculcate a sense of discipline
in conducting themselves in the society. However, with
the march of time and progress of Indian society, the
concept of law and therefore, of jurisprudence has
changed radically.
• Romans jurisprudence
 35
The study of jurisprudence as a separate branch of
knowledge stated with the Romans. For them,
jurisprudence meant “knowledge of law”. But in the
Modern sense this meaning is too vague and general.
Though the Romans in practice never confused law with
morality or religion, in theory this distinction is hardly
found to be in existence in earlier times.
The definition and conception of jurisprudence by
Roman jurists may appear to be vague or inadequate in the
modern sense of the term, but the credit of recognizing
jurisprudence as an independent branch of legal science
for the first time goes to Roman legal philosophers, which
eventually paved way to development of the subject in the
present form.
Roman civil law, and the Church’s canon law which
drew upon it, was originally a mere amalgam of past
decrees, arranged by topic. These decrees often
contradicted each other, and it was the work of legal
scholars to determine which aspects of each decree was
still binding. In general, a more recent law nullified an old
law only when it explicitly contradicted the old law or
carried implications that would render the old law void.
In some civil law countries, such as Italy, there is an
expectation that the lower courts will interpret the law in
the same way as the Supreme Court, but there is no strict
requirement that they will do so. Indeed, there would be
no way to enforce this, as case law does not constitute a
formal precedent; only the statutes passed by legislators
are binding.
 36
• European jurisprudence
In the European tradition there are two great systems
of jurisprudence: common law and civil law. Common law
jurisprudence, which prevails in England and most former
members of the British Empire, derives its authority from
common judicial practice and received traditions.
Common law is not necessarily codified or written,
but like the English constitution, it is a pre-existing reality
that magistrates must respect. Civil law, which derives
from Roman law, holds sway over most of Europe and
Latin America. In its modern form, it is always codified,
but more essential to civil law is the notion that judges are
bound by statutes, and they may only rule on particular
cases without establishing general rules. Thus common
law and civil law jurisprudence entail very different roles
for the judiciary in shaping the content of law.
In the nineteenth century, most European nations
sought to codify their laws, so there would be no
ambiguity as to which laws were in force. From the
Napoleonic Code of 1804 to the Pio-Benedictine Code of
1917, all civil and canon law in continental Europe was
organized into written codes.
Although this system had the eminent advantage of
making the law clear, uniform and rationally intelligible,
it placed plenary jurisdiction in the hands of the state,
whose statutes could supersede even the most immemorial
custom. Thus ancient usage could no longer act as a check
on the whims of those now living, as do the customs
 37
enshrined in common law. The state had free rein to mold
society as it saw fit; even the constitutions of Europe were
written as legal codes, to be amended by legislatures much
like a statute..
• French jurisprudence
In civil jurisprudence nations, by contrast, a judge’s
decision only applies to the particular case at hand. In
France, for example, a decision often consists of little
more than a statement of the verdict, followed by citation
of the relevant statutes, without any elaborate
interpretation. Other courts in future cases are expected to
appeal directly to the statutes, not a previous court’s
interpretation of the statute.
Historical Development of Civil Jurisprudence
The Romans developed a comprehensive body of
civil law that would prove to be a more lasting legacy than
their world empire. Virtually every nation of Europe has
felt the influence of Roman law, either in judicial
institutions or in the content of laws.
As with our discussion of common law, we are not
concerned with the specific content of Roman law, but
rather its principles of jurisprudence.
Roman civil law, or ius civile, began as a sort of
common law, being a body of traditional legal customs
that were not committed to writing at first. At least since
the early Republic, the civil law was recognized as the ius
populi, or law of the people, since it was determined by
 38
the popular assemblies, especially the assembly of
centurions (comita centuriata).
In contrast with the Athenian system (but similar to
other Greek city-states), the Roman public assembly had
real legislative power. Nonetheless, the early Roman
concept of law (ius), like the Greek nomos, derived
principally from the people’s sense of what is right or just.
Since law embodied traditional moral ideas about justice,
it was only natural that the preservation of the law was at
first entrusted to the care of priests.
Although civil law expressed the will of the people,
the Romans recognized its authority only in the public
sphere (ius publicum), and not in the private sphere.
Private law (ius privatum) regulated disputes between
families and individual citizens. In practice, this could
involve vigilantism, as a wronged family might kidnap a
son from a rival family, thereby forcing the latter to agree
to arbitration. Within the household, there was no law,
public or private, save the will of the pater familias, who
ruled his wife, children, retainers, slaves and property with
absolute authority for as long as he lived. Thus the civil
law was severely circumscribed in its scope, and Roman
society was not nearly as legalistic as we might expect.
Around 450 BC, the customary law was codified in
the Twelve Tables, which included what we today would
call criminal and civil law, as well as judicial procedures
and religious law. The content of this codified Roman law
appears to have been heavily influenced by Athenian law,
yet the conduct of Roman jurisprudence would differ
 39
greatly. At first, the Twelve Tables were entrusted to the
priests, the traditional caretakers of the law. In the early
third century BC, the laws were made accessible to all
citizens, so everyone could know which laws were
currently in effect. The body of law consisted of formal
legal pronouncements (lex) and other written legal
materials (ius scriptum), as well as unwritten custom (ius
non scriptum, or mores).
In the Roman Republic, laws were proposed by
magistrates (executive officials) and approved by the
popular assembly. Further, the praetors had their own
proper lawmaking authority (ius praetorianum, later
called ius honorarium) in virtue of their office. A praetor’s
legal edicts were included in his instructions to judges
(iuris dictum) issued at the start of his term. The praetor’s
edicts and other instructions bound the judges for the
duration of his term.
In the modern era, civil jurisprudence was codified as
statutory law, leaving no room for ambiguity regarding
which laws were in effect, while the role of legals scholars
diminished. Modern codes include the Prussian law code
of 1794 and the highly influential Napoleonic code of
1804. Modern nation-states of continental Europe
entrusted lawmaking entirely to a constitutional
legislature, while jurists had reduced influence, being able
only to interpret existing statutes, rather than determine
which statutes are in effect.
Even canon law followed this trend of codification, as
the Corpus Iuris Canonici (supplemented by the edicts of
 40
more recent popes and councils) was replaced by the Pio-
Benedictine Code of 1917, an unambiguous code of law.
[19] The constitutions of modern European states tend to
be lengthy documents, with a level of detail characteristic
of statutes. Thus the European judiciary typically has little
power other than to apply the written law to a particular
case, without purporting to establish any general rule or
precedent. All law-making power is in the hands of the
legislature.
Common Law Jurisprudence in the United States
The introduction of modern legislatures has had a
different effect on common law jurisprudence than it has
on civil jurisprudence. The nations of continental Europe
codified civil law in a way that reduced the influence of
jurists and enhanced the power of the legislature. In
England, however, the common law courts had already
developed a relatively unambiguous body of law through
the rule of precedent, creating a potential for conflict with
modern legislatures. Indeed, when Parliament first
acquired legislative powers, it was forbidden to change or
limit the common law by statute. Since juridical common
law antedated the legislative authority of Parliament, it
was permitted to remain as a check on the power of
Parliament, much as the nomoi of Athens were beyond the
purview of the general assembly. The exact relationship
between the legislative and judicial authorities would be
further developed in the English colonies that would
become the United States of America.
 41
CONCLUSION:-
Jurists thus have given different definitions of the
term ‘jurisprudence’. However, no one single definition
can be said to be universally acceptable. Perhaps, the exact
connotation of this term is not possible because as a
method, jurisprudence deals with concepts which regulate
human conduct in accordance with the values, needs and
goals of every society. These values, needs and goals etc.
vary from time to time and from society to society as also
within the same society at different times and hence the
meaning and scope of jurisprudence also varies.
It is well known that ‘law’ being a dynamic concept,
it changes with the evolution of society under different
socio-economic and political conditions. The rapid
changes in modern times have given rise to new problems
and issues which are to be tackled by law through
pragmatic approach in interpreting law. While doing so,
the modern jurisprudence has to take into consideration
the social ethos and changing patterns of the society which
immensely widens its scope as a science of law.
Austin’s definition discussed above is also relatively
correct. Austin has at least widened the scope of
jurisprudence by classifying it into two categories,
‘General’ and ‘Particular’ and by pointing out that the
jurisprudence includes the study of principles common to
all States and also the analysis of these principles in a
specific determined nation.
To sum up jurisprudence is a study, knowledge
 42
understanding, philosophy or research of the fundamental
legal principles. It is any thought or writing about law and
its relation to other social sciences such as economics,
psychology, philosophy, sociology, politics and ethics etc.
It digs into the historical past and attempts to create the
symmetry of a garden out of the confusion of different
conflicting legal system. It consists in whatever law
thinks, says and does in any field of human society.

Dharma and Indian Jurisprudencexii

Dharma is the word used in the Hindu religion for
giving justice in ancient times and they define Dharma as
the person’s moral and social obligations both as an
individual and also as a member of the society. In modern
times Dharma is replaced by the Common law, the kings
were replaced by the Courts and the Judges and the
procedure has been changed. Jurisprudence is the study
of law which helps to make society more interactive
towards each other.
Introduction
During the ancient period, Hindus use word Dharma
in place of Law. They define Dharma as a person’s moral
and social obligations, both as an individual and also as a
member of society. The basic ideology based on the
framework of Hindu law through the importance of scared
law. The principal aim of Dharma is to regulate human
behavior in its cosmic and human context.
Jurisprudence is the knowledge of the law and the
study of the Theory and Philosophy of law. It differs from
 43
the social sciences. Many Philosophers have a different
view for the meaning of Jurisprudence which makes it
difficult to define.
Dharma and its Historical Background
Dharma has been derived from the Vedic concepts of
Rita which means the straight line. And the Rita refers to
the Law of Nature.
Dharma in Sanskrit means to support, hold up, or
bear. Dharma is based on the legal system which says that
every individual owed a duty towards the other members
of the society and also the right possessed by every man.
In ancient times people believed in karma which defines
their Dharma. And that’s why Yudhistir from Mahabharat
known as Dharma Raj. It is a concept which helps for the
upliftment of the living beings. Therefore, which ensures
the welfare of living beings is called the Dharma. It seems
to cut across so many conceptual distinctions- legal,
social, religious, moral, etc those attaching importance to
these divides which seem to be less challenging than
confusing. It indicates the highest commendation that is
rightness, Justice, goodness, purpose rather than chance.
According to the Historical significance Dharma
attempts to exemplify the concepts and practices which
played across politically, legally, literary, ethically holds
life together. It refers to religious ethics in
Ramcharitmanas. The Atharva Veda signifies Dharma as
“Prithivim Dharmana Dhritam” which implies this world
is upheld by the Dharma. Also, Dharma is Santana which
 44
has eternal values and is not bounded by time nor by space.
The source from which knowledge of Hindu law is
derived id Dharma. Its ancient framework is the law of
smritis. It also enounces the rules of Dharma.
Nature and Scope of Dharma
The earliest mention of Dharma occurs in the Vedic
era in Rig Veda to mean the foundation of the universe and
believes that God created life by using the principles of
Dharma. Therefore salvation (moksha) is the eternal
Dharma for humans according to Hinduism. Lately,
Upanishads refined the concept of Dharma and made it
more moralistic.
It also has legalistic meaning in Hindu legal code like
Manusmriti to explain the legal duties of the people.
Manusmriti deals with religion, administration,
economics, civil and criminal laws, marriage, succession,
etc. The main function of a king is to uphold the Dharma.
Its meaning and scope have expanded with time with the
ideals of law and justice. The ultimate source of all social,
legal, political, and spiritual rights is divinity.
Indian Jurisprudence
The word Jurisprudence is derived from the Latin
word ‘jurisprudentia’ which splits into two that is Juris
whose literal meaning is the law and prudential whose
literal meaning is skill or knowledge so the word
Jurisprudence means the knowledge of the law and its
significance. The Roman civilization is known as the
 45
bedrock of all human civilizations which also has
explained the meaning and the nature of law.
Jeremy Bentham is known as the Father of
Jurisprudence. He was the first person who analyzes
what is the law. And Sir Austin is the Father of English
Jurisprudence.
“Jurisprudence is knowledge of things divine and
human; the science of just and unjust“
Jurisprudence provides guidelines to the judges and
the lawyers in ascertaining the true meaning of the laws
passed by the legislature by providing the rules and
regulations of interpretation. The subject matter of
Jurisprudence includes the study of concepts such as the
nature of law, the legal system, legal institution, etc. It
brings the important principles of law and the legal
concepts to light.
The definition of Jurisprudence defined
by Salmond as the body of principles that tribunal
recognize and apply while administering justice. Also
known as the science or philosophy of positive law.
Salmond explains Jurisprudence is concerned with
investigating law while legal theory seeks to understand
the law academically.
Roscoe Pound defines Jurisprudence as the law to
mean principles that public tribunals recognize and
enforce.
Austin defines it as Law is the command of sovereign
 46
and their non-obedience leads to the imposition of
sanctions.
Keeton defines it as the study and systematic
arrangement of the general principles of law.
Evolution of Jurisprudence
Jurisprudence originated in Roman civilization which
defines the meaning and the nature of law. It was limited
to the concept of law, morals, and justice then also
confused with each other. With the fall of the Roman
Empire slowly the Jurisprudence disappeared and the idea
of secularism emerged. After which many theories were
proposed with regards to the evolution of the state and the
nature of law by many philosophers like Hugo Grotius,
John Locke, Rousseau, and Blackstone. And the idea of
collectivism and social welfare was evolved. The idea of
positive law and the positivistic approach needed and the
boundaries of the law were demarcated and its scope was
limited.
Purpose of Law and the Concept of Justice
The most important function of the state is to ensure
justice to its citizens. Every state possesses the capability
to administer justice according to its legal system. Even,
in ancient times, the prime duty of the ruler is to guarantee
justice to their subjects.
The meaning of Justice is representing something that
is just and right that is the Judgement should be just,
impartial, fair, and right.
 47
Modern Jurisprudence says justice means the
implementation of concepts like equality and liberty. It
also the recognition and implementation of laws made by
the legislature that is the Parliament. And the function lies
in the judicial organ mainly the Supreme Court of India.
Therefore justice means the recognition, application,
and enforcement of laws by courts.
Importance of Jurisprudence
The purpose of Jurisprudence is to study the law, legal
concepts, and analyze the concept to facilitate a better
understanding of legal complexities.
It is also useful for solving legal problems in the
practical world. While analyzing the legal concepts of the
legal problem, it helps the legal professional in sharpening
their legal acumen.
Jurisprudence has a relation with other social science
such as sociology, political science, ethics, etc. Therefore
while doing research in Jurisprudence it helps people to be
social.
Jurisprudence is known as the grammar of law as it
helps in effective expression and application of legal
concepts.
It stresses the importance of considering present
social needs over the ideas while dealing with the legal
problems.
It has several fundamental legal concepts to facilitate
 48
its effective application in solving legal problems.
Indian Perspective
The Hindu legal system is one of the most ancient
legal systems and is based on the concept and philosophy
of Dharma. It includes the concept of Nyaya or justice –
the law which sustains the entire universe. In Hindus, the
concept of Dharma is found to be in ancient times known
as “Dharmashastras” which ensures that humans exist in
harmony with the entire universe.
Some of the important Code of law are as follows:-
Manu Smriti-
It Consists of a systematic collection of rules of the
Dharmashastras which covers all the branches of the law.
The language written in Manusmriti is simple which made
it a more authoritative source.
Narada Smriti-
It Consists of substantive as well as procedural laws.
Substantive laws are the laws that define the Offence
and Punishment while procedural laws are the laws that
define the procedure of the crime.
Arthashastra-
It Consists of the political treaties of Hindus.
The modern Indian legal system is based on the
common law system. And also India us a secular country.
So the ancient Hindu legal system has lost its relevance in
 49
the modern world.
Conclusion
Many thinkers have questioned the existence of the
Jurisprudence as the most important subject of law. The
main purpose of this subject is to regulate society to
maintain law and order. It also ensures that society
remains connected with the philosophy and the thinkers.
Without the Jurisprudence, the law would be reduced to a
formalistic science and will not facilitate its goal of
regulation and will lead it to a situation of chaos and
conflicts between the law and society.

Social transformation and social justice

Social transformationxiii
The concepts of social transformation social change
are closely interlinked. Social transformation is a
relatively novel term that has gained some popularity in
the recent decades in the discourse of the social sciences.
In fact, social transformation is a radical form of
social change. It is a rather sudden change of a society and/
or state, usually with a larger scale, through agents such as
revolution. The concept signifies the idea of a particularly
deep and far-reaching change that alters the way of life of
the people within a limited span of time.
However, social change is essentially concerned with
minor and persistent changes in the social organisation
and/or social structure of a society such as changes
brought about in the patterns of family, marriage, and
 50
educational institution.
Social Justicexiv
What is Social Justice?
Social justice refers to a political and philosophical
theory that focuses on the concept of fairness in relations
between individuals in society and equal access to wealth,
opportunities, and social privileges.
Summary
• Social justice refers to a political and philosophical
theory that focuses on the concept of fairness in
relations between individuals in society and equal
access to wealth, opportunities, and social
privileges in a society.
• The concept of social justice first emerged in the
19th century, as there were wide disparities in
wealth and social standing perpetuated through the
social structure of the era.
• The five main principles of social justice include
access to resources, equity, participation, diversity,
and human rights.
History and Evolution of Social Justice
The concept of social justice first arose in the
th
19 century during the Industrial Revolution as attempts
were made to promote more egalitarian societies and
reduce the exploitation of certain marginalized groups due
to the vast disparity between the rich and poor at the time.
 51
Social justice initially focused on issues such as the
distribution of capital, property, and wealth due to the
extreme levels of inequality and economic distress
prevalent at the time, resulting from the European social
class structure.
Today, social justice has shifted towards a stronger
emphasis on human rights and improving the lives of
disadvantaged and marginalized groups that have
historically faced discrimination in society. Many of these
groups have been discriminated against on the basis of
factors such as sex, age, wealth, ethnicity, heritage, social
status, religion, and others. Social justice often leads to
efforts to redistribute wealth to some of the
underprivileged groups through providing income, jobs,
and education support and opportunities.
Social Justice and the Government
While activists and advocates significantly influence
the widespread emphasis on social justice in the world
today, the actual implementation of social justice policies
is often left to administrators, such as the
government, non-profit organizations, foundations, or
agencies within the bureaucracy. Such organizations are
responsible for shaping public policies to address social
justice issues, and as a result, political factors influence
the extent to which social justice plays a role in the
policies shaped by the government and administrators of
the day.
Social justice initiatives can be pursued through many
 52
different types of government programs via wealth and
income redistribution, government subsidies, protected
legal status in employment, and even legalized
discrimination against privileged groups through fines and
taxes or even through purges historically. Social justice
initiatives are commonly seen in socialist and communist
countries, which integrates them into their economic
policies, as well as in the platforms of left-leaning political
parties within democracies.
Five Principles of Social Justice
There are five main principles of social justice that are
paramount to understanding the concept better. Namely,
these are access to resources, equity, participation,
diversity, and human rights.
1. Access to Resources
Access to resources is an important principle of social
justice and refers to the extent to which different
socioeconomic groups receive equal access to give
everyone an equal start in life. Many societies offer a
multitude of resources and services for their citizens, such
as healthcare, food, shelter, education, and recreational
opportunities. However, unequal access to such services
often exists.
For example, individuals from wealthy households
among the upper and upper-middle classes are often better
able to afford to attend good schools and access post-
secondary education, which leads to a greater chance of
obtaining jobs with higher income in the future. In
 53
contrast, those from the lower classes face fewer
opportunities. It, in turn, limits access to education for
future generations and continues the cycle of facing
disadvantages.
2. Equity
Equity refers to how individuals are given tools
specific to their needs and socioeconomic status in order
to move towards similar outcomes. It contrasts with
equality, where everyone is offered the same tools to move
towards the same outcome.
As such, often, things that are equal are not equitable
due to the more advanced needs of some individuals and
groups. Social justice, integrated with addressing equity
issues, might include advancing policies that provide
support to overcome systemic barriers.
3. Participation
Participation refers to how everyone in society is
given a voice and opportunity to verbalize their opinions
and concerns and have a role in any decision-making that
affects their livelihood and standard of living. Social
injustice occurs when a small group of individuals makes
decisions for a large group, while some people are unable
to voice their opinions.
4. Diversity
Understanding diversity and appreciating the value of
cultural differences are especially important because
policymakers are often better able to construct policies
 54
that take into consideration differences that exist among
different societal groups. It is important to recognize that
some groups face more barriers in society, and by
considering the inequities, policymakers and civil servants
will be in a stronger position to expand opportunities for
marginalized or disadvantaged groups.
Discrimination in employment on the basis of factors
such as race, gender, ethnicity, sex, age, and other
characteristics are constant issues in society, and
enforcing policies to countermand discriminatory
practices are one way in which diversity is taken into
consideration.
5. Human Rights
Human rights are one of the most important principles
of social justice and form a foundational part of the
concept. Human rights and social justice are certainly
interrelated, and it is impossible for one to exist without
the other.
Human rights are fundamental to societies that
respect the civil, economic, political, cultural, and legal
rights of individuals and governments, organizations, and
individuals must be held responsible if they fail to ensure
the upholding of these rights. They are extremely
important in many societies and are recognized
internationally through institutions such as the
International Criminal Court and the United Nations
Human Rights Council.
 55

Similarities and differences

Civil Law versus Common Law comparison chartxv
Civil Law Common
Law
Legal Legal system Legal system
System originating in Europe characterized by case
whose most prevalent law, which is law
feature is that its core developed by judges
principles are through decisions of
codified into a courts and similar
referable system tribunals.
which serves as the
primary source of
law.
Role of Chief Makes rulings;
judges investigator; makes sets precedent;
rulings, usually non- referee between
binding to 3rd parties.lawyers.Judges
In a civil law system, decide matters of law
the judge’s role is to and, where a jury is
establish the facts of absent, they also find
the case and to apply facts. Most judges
the provisions of the rarely inquire
applicable code.
extensively into
Though the judge matters before them,
often brings the instead relying on
formal charge. arguments presented
by the part
Countries Spain, China, United States,
Japan, Germany, England, Australia,
most African nations,
 56

all South American Canada, India

nations (except
Guyana), most of
Europe
Constitution Always Not always
Precedent Only used to Used to rule on
determine future or present
administrative of cases
constitutional court
matters
Role of jury In cases of civil Juries are
law, the opinion of comprised only of
the jury may not have laypersons — never
to be unanimous. judges. In the U.S.,
Laws vary by state juries are employed
and country. Juries in both civil and
are present almost criminal cases. Their
exclusively in function is to weigh
criminal cases; evidence presented
virtually never to them, and to find
involved in civil the facts and apply
actions. Judges the law.
ensure law prevails
over passion.
History The civil law Common law
tradition developed in systems have
continental Europe at evolved primarily in
the same time and England and its
was applied in the former colonies,
colonies of European including all but one
imperial powers such US jurisdiction and
as Spain and all but one Canadian
 57

Portugal. jurisdiction. For the

most part, the
English-speaking
world operates under
common law.
Sources of 1. Constitution 2. 1. Constitution
Law Legislation – statutes (not in the UK) 2.
and subsidiary Legislation –
legislation 3. Custom Statutes and
4. International Law subsidiary legislation
5. [Nota bene: It may 3. Judicial precedent
be argued that judicial – common law and
precedents and equity 4. Custom 5.
conventions also Convention 6.
function within International Law
Continental systems,
but they are not
generally recogn
Type of Inquisitorial. Adversarial.
argument Judges, not lawyers, Lawyers ask
and role of ask questions and questions of
lawyers demand evidence. witnesses, demand
Lawyers present production of
arguments based on evidence, and
the evidence the court present cases based
finds. on the evidence they
have gathered.
Evidence Evidence Widely
Taking demands are within understood to be a
the sovereign necessary part of the
inquisitorial function litigants’ effective
of the court — not pursuit or defense of
 58

within the lawyers’ a claim. Litigants are

role. As such, given wide latitude
“discovery” by in US jurisdictions,
foreign attorneys is but more limited
dimly viewed, and outside the US. In
can even lead to any event, the
criminal sanctions litigants and their
where the court’s role lawyers undertake to
is usurp a
Evolution Both systems Both systems
have similar sources have similar sources
of law- both have of law- both have
statutes and both have statutes and both
case law, they have case law, they
approach regulation approach regulation
and resolve issues in and resolve issues in
different ways, from different ways, from
different perspectives different
perspectives
 1

Module – 3
Definition and kinds of law
Introduction
The phrase law has been derived from
the Teutonic phrase Lag which means that specific. The
law may be described as a specific rule of demeanour and
human relations. It additionally approaches a uniform rule
of conduct that’s applicable equally to all the human
beings of the state. The law prescribes and regulates well-
known situations of human pastime inside the kingdom. In
simple phrases, the law is a specific energy of the country.
Under the header law, there has been covered kinds of law
which get applied according to the different cases being
prevalent.
Definition of Lawxvi
According to Austin
Law is defined as;
“Law is the command of a sovereign, it imposes a
duty and is backed by Sanction”. Or “Law is the aggregate
of rules set by men as politically superior, or sovereign, to
men as politically subject”.
According to Salmond
“Law is the body of principles, recognized and
applied by the state for the administration of justice”.
 2
According to Prof. Polland
Law is defined as;
“Law is a general rule of external human actions
enforced by sovereign, the political authority”.
Law in Rem and Law in Personam
Law in rem relates to enforcement of rights which a
person has against the whole world or against the people
in general whereas law in personam deals with
enforcement of right available against a definite person or
persons.
For example, the law of inheritance, succession,
ownership etc., comprise the subject-matter of law in rem
while the law of contract, trust etc., are the species of law
in personam.
Kinds of lawxvii
▪ General law
General Law has been described as that part of the
law which applies to all persons as equal without
any discrimination and is not limited to a particular
locality, rather is applicable to the whole of the territory in
the country. It is the ordinary law of land and law of the
realm. It has been categorized as:-
1. Statute law
2. Equity law
3. Common law
 3
▪ Special law
In the words of Salmond special laws are so special
and exceptional in their nature, sources or application that
it is convenient to treat them as standing outside the
general and ordinary law. The court of justice normally
takes notice of the general law of the land unless some
special law is pleaded. Salmond has mentioned 6 forms of
special law-
1. Local law- it is that body of law which has its
applicability on certain parts of the state and
throughout its territory. Such law may either be a
local customary law or locally enacted law.
2. Foreign law- also known as private international
law or foreign law which consists of the body of
rules for determining questions of jurisdictions and
questions as to the selection of appropriate law,
under civil cases having a foreign element.
3. Martial law- the law which is proclaimed at the
time of turmoil as supplementing the ordinary law
of the land which is insufficient to meet the extra
strain and requirements created by reason of
internal disturbances.
4. Conventional law- it originates in agreement and
is the law for those who have agreed to be bound
by it.
5. Autonomic law- the law being enforced by the
state and is set by the sovereign himself.
 4
Whereas, the law established by private persons or
organizations to which the sovereign power lends
its sanction or authority is autonomic law.
6. Prize law- it relates to that portion of the
international law which relates to the
determination of the legality of the captures of
ships and cargoes at sea in the time of war. This
law is enforceable by the municipal courts of the
country.
Salmond’s classification of kinds of law-
1. Imperative law – it means any positive law or rules of
conduct or behaviour imposed by any ruler, legislature,
state, institutions or body of persons. It is a precept or rule
of action imposed upon men by some authority which
enforces obedience to it. The rules of positive morality,
public opinion, rules of organizations and
associations form a part of it. If a person commits a breach
of imperative law he will have to undergo some sufferings
which are known as the sanction. For e.g. the state applies
physical force as the sanction, but a club or any other
organization resorts to fine or expulsion when a member
makes a breach of a rule.
The chief exponent of this kind of law is Austin and
according to him, positive law is a command which
obliges a person or persons to a course of conduct.
2. Physical or Scientific law – in the words of Salmond
the law prevalent under it are expressions of the
uniformities of nature and general principles expressing
 5
the regularity and harmony observable in the activities and
operations of the universe. It governs the growth of bodies,
the law of gravitation, and the law governing the planetary
motion. It signifies those uniformities and regularities
which are observable in nature as the law of heat and light.
3. Natural law – the law which is based on religious and
moral principles and presents the picture of law as ideal or
what the law ought to be. The natural law has been true for
all times and at all places and whose origin could be traced
out from ancient times. It emanates from virtue. Its
supreme sanction is the perfect conscience or the righteous
moral sense of the man. No physical force, punishment
or restraint is necessary. His own self is the sanction of the
jus naturae.
4. Conventional law – a law which is based on
conventions i.e., something arising out of an agreement
between parties or the rules made by any institutions. The
rules under it are for regulating the conduct of members of
a particular body, institutions or business. The law derives
its validity from the agreement between the parties
concerned.
5. Customary law – the laws under it comprises of
reasonable customs and usages observed as a right from
immemorial antiquity by a particular family or a society
as a whole. Salmond stated that by customary law here we
mean any rule of action which is actually observed by men
and any rule which is the expression of some actual
uniformity of voluntary action. The laws under it are
the well-recognized customs which has stood the test of
 6
time and which are reasonable.
6. Practical or Technical law – it imports the rule of
technique or art to be followed in a particular occupation
to procure the successful or desired result. Thus, we have
the rules of art, sculpture, photography, engraving, music
etc. it basically covers those rules which are necessary for
the attainment of certain ends.
7. International law – it is an aggregate of rules and
regulations recognized and accepted by civilized states in
their relations with each other. It has been considered as
one of the most important branches of law. It has been
divided into two parts where one part consists of those
rules which are uniform and universal in their application.
While the other part consists of those rules which are
operative only between parties agreed to them.
8. Civil law – the term civil itself denotes the law of land.
Salmond stated civil law as “the law of land or the law
of the state, the law of the lawyers and law courts.” It is
the law of the realm and has variously been named as
municipal law, positive law or natural law.
The civil law has been classified into two sub-heads:-
A. Private law
The law which is more concerned with that of an
individual than the public as a whole. It regulates and
governs the relation of citizens to each other. The state
acts as an arbiter to settle the disputes between individuals
and the society through its judicial organs. The private
 7
civil law deals with matters such as contracts, insurance,
carriage, freight, damages for personal injuries, civil
wrongs, agency, bailment, sales of goods, partnership,
regulations of companies, insolvency, arbitration,
negotiable instruments, transfer of property etc.
In the classification of private law, there is great difficulty,
as different jurists have given different classifications. A
very general classification is as follows:-
1. The law of persons
2. The law of property
3. The law of obligations
4. The conflict of laws
B. Public law
It is such part of the civil law which deals with the
constitution and working of the state, the functioning of its
various departments, the relation between the state and its
citizens. The public law determines and regulates the
organization and functioning of the state and determines
the relation of the state with its subject.
It has been divided into 3 classes:-
1. Constitutional law
Dicey says constitutional law includes all rules which
directly or indirectly affect the distribution or exercise of
the sovereign power of the state. It elaborates the concept
of how the executive, the legislature and the judiciary are
 8
to function. The law which determines the structure of the
state, the allocation of powers, the law that determines the
rights and liberties of the subject guaranteed under the
constitution, as also the obligation of the citizens in
consonance with the maintenance of the solidarity of the
state. The constitutional has been above and superior to
the ordinary law of the land.
It is the fundamental law of a state which contains the
principles on which government is founded. It regulates
the division of sovereign powers and directs to person
each of these powers as to be entrusted and the manner of
its exercise.
Keith in his Constitutional law observes that it is the part
of the constitutional law to examine the organs by which
these functions are carried out, their inter-relations, and
the position of the members of the community in relation
to these organs and the functions of the state.
2. Administrative law
It contains the laws and rules concerning the
administration of the executive departments of the state. It
deals with the structure, powers, and functions of the
organs of the administration, the limits of their powers, the
methods and procedures followed by them in exercising
their powers and functions. It also provides legal remedies
to a person whose right has been infringed by their
exercising of the power of regulation of administration. It
covers the legislative and judicial powers of the executive.
According to Dicey, the Administrative law determines
 9
the constitution and relation of those organs of society
which are charged with the care of those social interests
which are the object of public administration and the
relation of the administrative authorities towards the
citizens of the state.
3. Criminal law
It has been defined as a body of specific and definite rules
regarding human conduct and behaviour which has been
promulgated by political authority,
which applies uniformly to all members of all classes of
people which the rules refer and are enforced by
punishment administered by the state. The characteristics
of criminal law are as follows-
1. Politicality– it is a necessary element in the
criminal law. The rules made by the state only can
be said to be criminal law when the violations of
such rules are criminal in nature and are
punishable.
2. Specificity- it generally gives a strict definition of
a specific act. Acts of a nuisance, conspiracy,
official misfeasance etc.
3. Uniformity- the criminal law maintains the
principle of justice and without being bias, it
imposes charges of punishment as per one’s crime.
The uniformity denotes the process of enforcement
of the law which is to be administered without the
status of the person committing the crime.
 10
4. Penal Sanction-It is said that penal sanction is the
essential element of the definition of criminal law.
The criminal law originated as an agency of social
control. It originated in torts or wrongs to
individuals. The object of criminal law is
punishment and not compensation. While
compensation could be allotted as per the nature of
the offence and is granted in the form of penalty.
Mens Rea has been defined as one of the essential element
to be present in an act to constitute punishment. The
criminal law deals with the laws relating to crimes, the
procedure in criminal courts and the dealing with
offenders. And also deals with the rules and regulations
concerning prisons and the treatment of prisoners.
In a civilized society, crime is considered to be a wrong
not only to the individual but to the society also.
Therefore, the state initiates the proceedings against the
offender. And this is why the criminal law has been
considered as a branch of public law.

Sources of lawxviii
Introduction
The word ‘Jurisprudence’ is derived from the Latin
word jurisprudentia, which means science or knowledge
of law. It is a very vast area of study and it consists of
several ideologies and theories on how law has been made.
It also includes the relationship of law with individuals
and other social institutions within the scope of its study.
There are various sources from which we derive law.
 11
Several jurists and scholars have attempted to classify the
sources of law. However, the most common sources in all
these classifications are legislations, judicial precedents,
and customs.
Law and sources of law
According to John Chipman Grey, who was a
Harvard Law School professor, “the Law of the State or
of any organised body of men is composed of the rules
which the courts, that is the judicial organ of the body,
lays down for the determination of legal rights and
duties”. Though Gray’s definition has been criticised for
being narrow, he distinguished law from the sources of
law. According to him, law has evolved through case laws
and sources of law are where we get the content and
validity of law from. Essentially, law refers to the rules or
code of conduct and its sources refer to the materials from
which it gets its content.
Types of sources of law
John Salmond, a legal scholar renowned for his
ideologies on law in the field of jurisprudence, classified
the sources of law into mainly two categories,i.e., material
sources and formal sources.
Material sources
Material sources of law are those sources from which
the law gets its content or matter, but not its validity. There
are two types of material sources which are legal sources
and historical sources.
 12
Legal sources
Legal sources are the instruments used by the state
which create legal rules. They are authoritative in nature
and followed by courts of law. These are the sources or
instruments that permit newer legal principles to be
created. According to Salmond, legal sources of English
law can be further classified into four categories-
Legislation,
Precedent,
Customary law, and
Conventional law.
Historical sources
Historical sources are sources that influence the
development of law without giving effect to its validity or
authority. These sources influence legal rules indirectly.
The difference between legal and historical sources is that
all laws have a historical source but they may or may not
have a legal source. Decisions given by foreign courts
serve as an example for this kind of source.
Formal sources
Formal sources of law are the instruments through
which the state manifests its will. In general, statutes and
judicial precedents are the modern formal sources of law.
Law derives its force, authority, and validity from its
formal sources.
 13
According to Keeton, the classification given by
Salmond was flawed. Keeton classified sources of law into
the following:
Binding sources
Judges are bound to apply such sources of law in
cases. Examples of such sources are statutes or legislation,
judicial precedents, and customs.
Persuasive sources
Persuasive sources are not binding but are taken into
consideration when binding sources are not available for
deciding on a particular subject. Examples of such sources
are foreign judgements, principles of morality, equity,
justice, professional opinions, etc.
Precedent as a source of law
Judicial precedents refer to the decisions given by
courts in different cases. A judicial decision has a legal
principle that is binding on the subordinate courts. Once a
court has delivered a judgement on a particular case, the
courts subordinate to it must abide by the precedent while
deciding on similar cases with similar facts. Some of the
most influential judicial precedents in India are the
following:
Kesavananda Bharati v. the State of Kerala (1973):
This case is what introduced the concept of the basic
structure doctrine in India, protecting the fundamental
features of the Indian Constitution from being removed.
 14
Gian Kaur v. the State of Punjab (1996): This
judgement affirmed that the right to die does not come
within the scope of Article 21 of the Indian Constitution.
The court affirmed that every person has the right to die
with dignity. The court also stated that the right to die in a
dignified manner is not the same as the right to die in an
unnatural way.
Maneka Gandhi v. the Union of India (1978): The
court held Section 10(3)(c) of the Passports Act, 1967 as
void since it violated Article 14 and 21 of the Indian
Constitution.
Indra Sawhney v. the Union of India (1992): This
judgement set a ceiling of 50% for reservation of
backward classes. It also held that the criteria of
classifying groups as backward classes cannot be limited
to economic backwardness.
The doctrine of Stare Decisis
The authority of judicial precedents is based on the
doctrine of stare decisis. The term stare decisis means to
not disturb the undisturbed. In other words, precedents
that have been valid for a long time must not be disturbed.
In India, subordinate courts are bound by the
precedents of higher courts, and higher courts are bound
by their own precedents. But when it comes to High
Courts, the decision of one High Court is not binding on
the other High Courts. Their decisions are binding on the
subordinate courts. In cases where there are conflicts
between decisions of court with the same authority, the
 15
latest decision is to be followed. As per Article 141 of the
Constitution of India, the Supreme Court’s decisions are
binding on all the courts across the country. However, the
Supreme Court’s decisions are not binding on itself. In
subsequent cases where there are sufficient reasons to
deviate from the earlier decision, the Supreme Court can
do so.
Doctrine of Res Judicata
The term res judicata means subject matter adjudged.
As per this doctrine, once a lawsuit has been decided upon,
the parties are barred from raising the same issue in courts
again, unless new material facts have been discovered.
They can’t raise another issue arising from the same claim
either since they could have raised the same in the
previous suit.
Ratio Decidendi
As per Salmond, a precedent is a judicial decision that
contains a legal principle with an authoritative element
called ratio decidendi. Ratio decidendi means reason for
the decision. Whenever a judge gets a case to decide on,
he has to adjudicate it even when there is no statute or
precedent concerning it. The principle that governs such a
decision is the reason for the decision which is also called
ratio decidendi.
Obiter Dicta
The term obiter dictum means mere say by the way.
This term is used to refer to statements of law that are not
 16
required for the case at hand. A judge may in the
judgement of a case declare some legal principles to be
applied in a hypothetical situation. It does not have much
impact or authority. However, the subordinate courts are
bound to apply the principles.
Types of precedents
Authoritative and Persuasive
Authoritative precedents are those precedents that
must be followed by subordinate courts whether they
approve of it or not. They create direct and definite rules
of law. They fall into the category of legal sources of law.
Persuasive precedents on the other hand do not create a
binding obligation on the judges. Persuasive precedents
can be applied as per the discretion of the judge.
Authoritative precedents can be classified into the
following two types:
Absolute authoritative
An absolutely authoritative precedent is binding on
subordinate courts in an absolute manner and it cannot be
disobeyed even if it is wrong.
Conditional authoritative
A conditionally authoritative precedent is binding on
other judges but it can be disregarded in certain special
circumstances as long as the judge shows the reason for
doing so.
Original and Declaratory
 17
According to Salmond, a declaratory precedent is a
precedent that simply declares an already existing law in
a judgement. It is a mere application of law. An original
precedent creates and applies a new law.
Factors increasing the authority of a precedent
• The number of judges constituting the bench that
makes the decision.
• A unanimous decision has more weight.
• Approval by other courts, especially the higher courts.
• The enactment of a statute that carries the same law
subsequently.
Factors decreasing the authority of a precedent
• Abrogation of judgement by reversal or overrule of a
higher court.
• Abrogation of judgement by a statutory rule enacted
subsequently.
• Affirmation or reversal of decision on a different
ground.
• Inconsistency with the previous decision of a higher
court.
• Inconsistency with previous decisions of the court of
the same rank.
• Inconsistency with already existing statutory rules.
 18

• Erroneous decision.
Legislation as a source of law
Legislation refers to the rules or laws enacted by the
legislative organ of the government. It is one of the most
important sources of law in jurisprudence. The word
legislation is derived from the
words legis and latum, where legis means law
and latum means making.
Types of legislation
According to Salmond, legislation can be classified
into two types- Supreme and Subordinate.
Supreme legislation
Legislation is said to be supreme when it is enacted
by a supreme or sovereign law-making body. The body
must be powerful to the extent that the rules or laws
enacted by it cannot be annulled or modified by another
body. Indian Parliament cannot be said to be a sovereign
law-making body as the laws passed by the parliament can
be challenged in the courts. The British Parliament, on the
other hand, can be said to be a sovereign law-making body
since the validity of laws passed by it cannot be challenged
in any court.
Subordinate legislation
Legislation enacted by a subordinate law-making
body is said to be subordinate legislation. The subordinate
body must have derived its law-making authority from a
 19
sovereign law-making body. It is subject to the control of
the supreme legislative body. The following are the
different kinds of subordinate legislation:
Executive legislation: This is a form of subordinate
legislation where the executive is granted or conferred
certain rule-making powers in order to carry out the
intentions of the legislature.
Colonial legislation: Many territories across the
globe were colonised by Britain and such territories were
called colonies. The legislation passed by the legislature
of such colonies was subject to the control of the British
Parliament.
Judicial legislation: Courts also have a role in
enacting laws that aid in regulating the internal affairs and
functioning of courts.
Municipal legislation: Municipal authorities also
possess the law-making power as they enact bye-laws.
Autonomous legislation: Another kind of legislation
is autonomous legislation, which is concerned with bodies
like universities, corporations, clubs, etc.
Delegated legislation: Sometimes legislative powers
may be delegated to certain bodies by the parliament
through principal legislation. A principal act may create
subsidiary legislation that can make laws as provided in
the principal legislation.
Custom as a source of law
 20
Custom refers to the code of conduct that has the
express approval of the community that observes it. In
primitive societies, there were no institutions that acted as
authority over the people. This led to people organising
themselves to form cohesive groups in order to maintain
fairness, equality, and liberty. They started developing
rules with coordinated efforts to make decisions. They
eventually started recognising the traditions and rituals
practised by the community routinely and formed a
systematised form of social regulation. In India, laws
relating to marriage and divorce are mostly developed
from customs followed by different religious
communities. Additionally, several communities
belonging to the Scheduled Tribes category have their
own customs related to marriage. As a result of
that Section 2(2) of the Hindu Marriage Act, 1955 has
exempted Scheduled Tribes from the application of this
Act.
Requisites of a valid custom
Reasonability: The custom must be reasonable or
practical and must conform with the basic morality
prevailing in the modern-day society.
Antiquity: It must have been practised for time
immemorial.
Certainty: The custom must be clear and
unambiguous on how it should be practised.
Conformity with statutes: No custom must go
against the law of the land.
 21
Continuity in practice: Not only the custom must be
practised for time immemorial, but it should also be
practised without interruption.
Must not be in opposition to public policy: The
custom must adhere to the public policy of the state.
Must be general or universal: There must be
unanimity in the opinion of the community or place in
which it is practised. Hence, it should be universal or
general in its application.
Sir Henry Maine’s views on customs
According to Sir Henry Maine, “Custom is
conception posterior to that of Themistes or judgments”.
Themistes refers to the judicial awards dictated to the King
by the Greek goddess of justice. The following are the
different stages of development of law according to Henry
Maine:
1. At the first step, law is made by rulers who are inspired
by the divine. Rulers were believed to be messengers
of God.
2. At the second stage, following rules becomes a habit
of the people and it becomes customary law.
3. At the third stage, knowledge of customs lies in the
hands of a minority group of people called the priestly
class. They recognise and formalise customs.
4. The final stage is the codification of customs.
Types of customs
 22
Customs without a binding obligation
There are customs that are followed in society that do
not have a legal binding force. Such customs are related to
clothing, marriage, etc. Not abiding by such customs can
only result in a social boycott and not legal consequences.
Customs with a binding obligation
Customs that are meant to be followed by law are
called customs with a binding obligation. They are not
related to social conventions or traditions. There are
mainly two types of customs with binding obligations-
Legal customs and Conventional customs.
Legal customs: Legal customs are absolute in
sanction. They are obligatory in nature and attract legal
consequences if not followed. Two types of legal customs
are general customs and local customs. General customs
are enforced throughout the territory of a state. Local
customs on the other hand operate only in particular
localities.
Conventional customs: Conventional customs are
those customs that are enforceable only on their
acceptance through an agreement. Such a custom is only
enforceable on the people who are parties to the agreement
incorporating it. Two types of conventional customs are
general conventional customs and local conventional
customs. General Conventional Customs are practised
throughout a territory. Local Conventional Customs on the
other hand is restricted to a particular place or to a
particular trade or transaction.
 23
Difference between custom and prescription
The main difference between the two is that custom
gives rise to law and prescription gives rise to a right.
Custom is generally observed as a course of conduct and
is legally enforceable. Prescription refers to the
acquisition of a right or title. When local custom applies
to society, the prescription is applicable only to a
particular person. For example, when a person X’s
forefathers have been grazing their cattle on a particular
land for years without restriction, X acquires the same
right to graze his cattle on the land. The right acquired by
X is called a prescription. For a prescription to be valid, it
must be practised from time immemorial. In India,
uninterrupted enjoyment for 20 years is essential to
acquire a right to light and air as per the Indian Easements
Act, 1882.
Conclusion
To conclude, sources of law in jurisprudence can be
classified on the basis of several grounds. But the most
notable or common classification divides it into
legislation, precedent, and custom. Precedent refers to the
previous judicial decisions. The legislation refers to the
statutory rules enacted by the legislature. Custom refers to
the age-old practises of a community that has solidified its
presence so much that it becomes the law. Though
legislation seems to be the agency through which we get
laws, it is just the primary source. Many laws that we have
are a reflection of what we as a society have followed for
generations. Also, many cases show how sometimes the
 24
law of the land is inadequate or incapable of predicting
what issues could arise in subsequent disputes. This calls
for the judiciary to elaborate or interpret the law of the
land, setting judicial precedents for several issues.

Administration of justice
Introductionxix
The concept of justice is as old as the origin and
growth of human society. A man living in society desires
peace and, while living in he tends to experience a conflict
of interests and expects a rightful conduct on the others
part. And this is why jurists like Salmond and Roscoe
Pound have emphasized the importance of justice.
Through the instrumentality of law regulated by the
state, the concept of justice became more clear. As the law
grew and developed the concept of justice walked parallel
and expanded its tentacles into different spheres of human
activities. The essence of legal justice lies in ensuring
uniformity and certainty of law and at the same time
ensuring the rights and duties duly respected by all. The
notion of justice is the impartiality imbibed in it. The
violation of justice which is enforced by the law results in
state sanction as ‘punishment’.
In the words of Chief Justice Coke it has been rightly
said that ‘wisdom of law and justice is wiser than man’s
wisdom,’ thereby legal justice represents the collective
wisdom of the community which Rousseau called as
‘General Will’ of the people.
Definition
 25
The term justice has been derived from the Latin word
‘Jungere’ which means to bind or tie together, thus in this
way it can be stated as justice is the key ailment which ties
the individuals in the society together and harmonizes a
balance between them and enhances human relation.
In the words of jurists-
▪ Blackstone- “Justice is a reservoir from where the
concept of right, duty, and equity evolves.”
▪ Salmond- “Though every man wants to be
righteous and just towards him, he himself being
‘selfish’ by nature may not be reciprocal in
responding justly.” According to him, some kind
of external force is necessary for maintaining an
orderly society, and without justice it is
unthinkable.
Types of Justice
Justice represents itself in kinds mainly:-
▪ Social Justice
In the words of Chief Justice, P.B.Gajendragadkar-
social justice means ending all kinds of social inequalities
and then provide equal opportunities to all.
Commenting on social justice Mr. M.C. Chagla, the
former Chief Justice of the Bombay High court observed
in the case of Prakash Cotton Mills v. State of Bombay,
1957 II LLJ 490 (Bom) that “ we are no longer living in
the laissez-faire….. it is true that social justice is
 26
imponderable and we asked not to introduce the principles
of social justice in constructing legislation that comes for
interpretation before us. But in our opinion, no economic,
social or labor legislation can be considered by the court
without applying the principles of social justice in
interpreting these related provisions of law.”
While in the case of State of Mysore v. Workers of
Gold Mines 1958 II LLJ 479 (SC) the Supreme Court
observed that the concept of social justice is a living
concept of revolutionary impact: it gives substance to rule
of law and meaning and significance to the idea of welfare
of the state.
Thus, the concept of social justice aims to uplift the
underprivileged section without unduly and unreasonably
affecting the interests of the upper section of the
society. The concept of social justice finds its expression
in Articles 14(equality before law), 15(prohibition of
discrimination on the grounds of religion, race, caste, sex
or place of birth), 16(equality of opportunity in matters of
public employment) and 39 (b) and (c) [(b) ownership and
control of the material resources and its equal distribution,
(c) operation of the economic system not resulting to the
concentration of wealth and means of production to the
common detriment], of the constitution of India.
It also determines the concept of Processual Justice
based on natural law which is the very basis of not only
substantive law but also the remedial justice. Legal
maxims like Nemo Judex In Propria Cause (no one can
be a judge in his own case); Audi Altrem Partem(here
 27
the other side or party) plays a vital role.
▪ Economic Justice
It demands that all citizens should have adequate
opportunities to earn their livelihood and get equal pay for
equal work, which could substantially help them in
fulfilling their basic needs. From financial inclusion to
better health care the state government should create
opportunities for them by generating employment
opportunities, following MNREGA, RSBY and so on. No
person or group of person should indulge themselves in
exploitation and be exploited. There must be a fair and just
equitable distribution of wealth and resources, and the gap
between rich and poor should get abridged.
▪ Political Justice
It means granting of equal political rights and
opportunities to all citizens to take part in the
administration of the country. The legality of the right to
vote and contest election free and fairly.
▪ Legal Justice
It has two dimensions as the formulation of just laws
and then to do justice according to it. While making laws
the will of the rulers must not be used on ruled. Laws
should be based on public opinion and public needs
considering the core of social values, morality and the
concept of just and unjust must be considered. It simply
means rule of law and not the rule of person. Objective
due dispensation of justice by the courts of law is an
 28
essential ingredient of legal justice.
Administration of Justice
Origin
The administration of justice in modern civilized
societies has evolved through 4 stages:-
1. Primitive stage- when society was primitive and
private revenge and self-help were only the
remedies available to the wrongdoer, one could
easily get the wrong redressed with the help of his
friends and relatives, ‘an eye for an eye, a tooth for
a tooth and a limb for a limb.’
2. Elementary/Infant stage- it has been considered
that law and state were at infantry level during this
stage, and the feeling of security as a responsibility
by the state towards its individual and his property
was absent. It didn’t have the enforcing power
through which it could punish the wrongdoer.
3. The growth of Administration of Justice- a change
was about to witness where a sought of tariff
schedules were fixed for different kinds of injury
and offenses. And up to that time justice mold as
private in nature without the compulsive force of
the state.
4. The modernization- it was the developmental stage
where the state geared its authority and took upon
itself the responsibility of administrating justice
and punishing the wrongdoer using its force
 29
whenever necessary. This stage owes its origin and
growth to the gradual evolution of the state and its
political power. And with its transformation,
private revenge and self-help got substituted by the
administration of criminal and civil justice through
law courts.
Concept
“Men being what they are-each keen to see his own
interest and passionate to follow it-society can exist only
under the shelter of the State, and the law and justice of
the state is a permanent and necessary condition of peace
order and civilization.”(Salmond)
Driving from the words of Salmond it is clear that
administration of justice means justice according to law.
Physical force of the state is the sole or exclusive factor
for a sound administration.
Administration of justice is the firmest pillar of
government, and granting justice is said to be the ultimate
end of law and the goal of society, which the judges of the
courts have been pouring into law with new variants of
justice in the form of contemporary values and need-based
rights like freedom, liberty, dignity, equality and social
justice as ordained in the constitutional document. Access
to justice for the people is the foundation of the
constitution.[State of Haryana v. Darshna Devi, AIR
1979 SC 855, per Justice Krishna Iyer]
 30
Advantages of Administration of Justicexx
Advantages of Administration of Justice are as
follows
Uniformity and certainty - Legal Justice ensures
uniformity and certainty. Everybody knows what the law
is and there is no scope for arbitrary action. Even Judges
have to give decisions according to the declared law of the
Country. As the law is certain, citizens can shape their
conduct accordingly.
Impartiality - Another Advantage of Administration
of Justice, there is impartiality in the administration of
justice. Judges are required to give their decisions
according to the pre-determined legal principles and the
cannot go beyond them.
Disadvantages of Justice
Despite the aforesaid advantages there are certain
disadvantages of Legal Justice which are as follows
Rigidity - One Disadvantage of Legal Justice is that
it is Rigid. Law has already been laid down
in precedents. It is not always possible to adjust it to the
changing needs of society. Society may change more
rapidly than legal justice and may result in hardship and
injustice in certain cases. Judges act upon the principle that
"hard cases should not make bad law".
Technicalities - Another disadvantage of legal justice
is its technicalities (formalism). Judges attach more
importance to legal technicalities than they deserve. They
 31
give importance to form than to substance.
Complexity - Modern society is becoming more and
more complicated and if made from time to time to codify
or simplify the legal system but very soon law becomes
complicated
Classification
Under the purview of administration of justice it is
classified into two kinds:-
1. Civil justice
Blackstone called it as ‘private wrong’. It has been
defined as civil injuries where violation or infringement of
civil or legal rights of an individual is taken into
consideration. A civil case may result in an award of
compensation or dismissal of the case. In jurisprudential
term, the right of justice is enforced through the
administration of civil justice which connotes
enforcement and protection of rights as opposed to the
punishment of wrongs.
The rights to be enforced under it may either be
primary rights or secondary rights. Where the enforcement
of Primary rights; is also called specific
performance wherein the defendant is compelled to do the
very act which is agreed upon to be done. For instance,
payment of debt, or to perform a contract or restore land
or property wrongfully taken or detained. It also
connotes remedial rights under it, where the purpose may
be either imposition of a pecuniary penalty upon the
 32
wrongdoer; or providing for pecuniary compensation to
the plaintiff in respect of the damages which he has
suffered from the defendant’s wrongful act.
And on the other hand is the Sanctioning
rights; where the right to receive pecuniary compensation
or damages from wrongdoer may be of two kinds:- (i)
restitution- here the defendant is compelled to give up or
restore the pecuniary value or some benefit which he has
wrongfully obtained. (ii) The penal redress, where it’s
not only restoration of all benefits which the wrongdoer
has achieved through his wrongful acts, but also a full
redress for the plaintiff loses.
Section 9 of the Civil Procedure Code, 1908 defines a
civil suit. The civil courts in India have the power to try
all suits of civil nature excepting those the cognizance of
which is expressly or impliedly barred. These courts can
grant declaratory, prohibitory and momentary reliefs.
2. Criminal Justice
Blackstone stated it as ‘public wrong’. The main
purpose of administration of criminal justice has always
been to punish the offender, while in certain general
exceptional cases the accused may get acquitted. The
nature of the violation of public rights and duties which
affects the community as a whole is called a crime and a
criminal proceeding results in applying on punishment
varying from sentence of death to a mere fine or binding
over the lawbreaker to keep the peace or his release on
probation after admonition.
 33
Under this, the magistrate has to decide the guilt of
the accused on the basis of the evidence before him.
Theories of Punishment
Various theories are advanced in justification for
punishing the offender. The view regarding punishment
also kept changing with the changes in the societal norms.
They are of following kinds:-
1. Deterrent theory
The term ‘Deter’ means to abstain from doing an act.
While the main purpose of this theory is to deter the
criminals from doing the crime or repeating the same in
the future. Under this theory, severe punishments get
impose upon the offender so that he abstains from
committing a crime while it would constitute as a lesson
to the other member of the society.
In the words of Salmond- punishment is before all
things deterrent and the chief aim of the law of crime is to
make the evil-doer an example and warning to all who are
like minded as him. He further stated that offenses are
committed by reason of conflict of interest of the offender
and the society.
While this theory concept could be determined in the
words of Manu from ancient India. According to him
punishment or “dandh” are the sources of righteousness
because people abstain from committing wrongful acts
through the fear of punishment.
2. Retributive theory
 34
This theory is based on the principle-‘An eye for an
eye, a tooth for a tooth…” here, retributive means to give
in return. The object of the theory is to make the criminal
realize the sufferings of the pain by subjecting him to the
same kind of pain, as he had imposed on the victim. The
theory has been regarded as an end in itself as it only aims
at revenge taking rather than sound welfare and
transformation.
Salmond puts his words stating that to suffer
punishment is to pay a debt due to the law that has been
violated. Revenge is the right of the injured person and the
penalty for wrongdoing is a debt which the offender owes
to the victim and when the punishment is given the debt is
paid.
While this theory was never recognized as a just
theory because it plays a role in self-motivation for
committing a crime on the ground of justice for injustice.
Overall it could be stated as it was a kind of abatement
prompted by society to victims.
3. Preventive theory
The preventive theory is founded on the idea of
preventing the repetition of crime by disabling the
offender through measures such as imprisonment,
forfeiture, death punishment, etc. In the words of Paton,
‘this theory seeks to prevent the prisoners from
committing the crime by disabling him.’ It pre-supposes
that need of punishment for crimes simply arises out of
social necessities, as by doing so the community is
 35
protecting itself against anti-social acts which are
endangering social order.
However, this theory was also not a just method as
stated by jurist Kant and others that merely by awarding a
term of imprisonment is not going to reduce the crime
unless reformative efforts are made to integrate him in the
mainstream of society through the process of
rehabilitation.
4. Expiatory theory
This theory is solely based on the concept of morality,
rather being much more concerned with legal concepts. It
emphasizes more on ancient religious perceptions
regarding crime and punishment when prisoners were
placed in isolated cells to repent or expiate for their crime
or guilty from their core of the heart and the one who
succeeded in doing so were let off.
This theory is based on ethical considerations due to
which it lost its relevance in the modern system of
punishment.
5. Reformative theory
This theory emphasizes the reformation of offenders
through the method of individualization. It is based on the
principle of humanistic principle that even if an offender
commits a crime, he does not cease out to be a human
being. And an effort should be made to reform him during
the period of incarceration. This theory is based on the
principle of ‘hate the sin, not the sinner.’
 36
The focal point of the reformist view is that an effort
should be made to restore the offender to society as a good
and law-abiding citizen. The Supreme Court in the case
of T.K.Gopal v. State of Karnataka AIR 2000 SC
1669(1674) stated that- the law requires that a criminal
should be punished and the punishment prescribed must
be meted out to him, but at the same time, reform of the
criminal through various processes, despite he has
committed a crime, should entitle him all the basic rights,
human dignity, and human sympathy.
Distinction between Deterrent Theory and
Reformative Theory
Reformative Theory stands for the reformation of the
convict but the Deterrent Theory aims at giving exemplary
punishment so that the others are deterred from following
the same course of action.
Deterrent Theory does not lead to a reformation of the
criminal as it imposes harsh punishments. Whereas,
Reformative Theory believes that if harsh punishment is
inflicted on the criminals, there will be no scope for
reform.
Deterrent Theory believes that the punishment should
be determined by the character of the crime. Thus, too
much emphasis is given on the crime and too little on the
criminal. However, Reformative Theory takes into
consideration the circumstances under which an offence
was committed. Reformative Theory further believes that
every effort should be made to give a chance to the
 37
criminal to improve his conduct in the future.
Kinds of Punishmentxxi
1. Capital Punishment– This is one of the oldest form
of punishments. Even our IPC prescribes this
punishment for certain crimes. A lot of countries have
either abolished this punishment or are on their way to
abolish it. Indian Judiciary has vacillating and
indecisive stand on this punishment. There have been
plethora of cases where heinous and treacherous crime
was committed yet Capital Punishment was not
awarded to the criminal.
2. Deportation or Transportation– This is also a very
old form of punishment. It was practised in India
during the British Rule. The criminal is put in a
secluded place or in a different society. Critics of this
punishment believe that the person will still cause
trouble in the society where he is being deported.
3. Corporal Punishment– Corporal punishment is a
form of physical punishment that involves the
deliberate infliction of pain on the wrongdoer. This
punishment is abolished in our country but it exists in
some Middle Eastern Countries. Critics say that it is
highly inhuman and ineffective.
4. Imprisonment– This type of punishment serves the
purpose of three theories, Deterrent, Preventive and
Reformative. Under Deterrent Theory, it helps in
setting an example. It disables the offender from
moving outside, thus serving the purpose of
 38
Preventive Theory. If the government wishes to
reform the prisoner, it can do so while the person is
serving his imprisonment, thus serving the purpose of
Reformative Theory.
5. Solitary Confinement– Solitary confinement is a
form of imprisonment in which a prisoner is isolated
from any human contact. It is an aggravated form of
punishment. It is said that it fully exploits and destroys
the sociable nature of men. Critics say that it is
inhuman too.
6. Indeterminate Sentence– In such a sentence, the
accused is not sentenced for any fixed period. The
period is left indeterminate while awarding and when
the accused shows improvement, the sentence may be
terminated. It is also reformative in nature.

Theories of justicexxii
Nozick’s Theory of Justice
Robert Nozick an American political philosopher was
born in Brooklyn, New York in 1938. He died of stomach
cancer in the year 2002. He introduced in his first book
Anarchy, State, and Utopia (1974) “the entitlement theory
of justice” and stated that every human being shall possess
what they are entitled to. Nozick said that every human
being is born with a fundamental individual right. No one
should seize the right of entitlement from the other by
wrongful act or misconduct. Some people gain benefits
illegally by stealing, seizing, forgery, subterfuge, abuse,
defraud, etc. As Nozick rightly pointed out the concept of
 39
just distribution through legitimate means. The most
important demand for the rule of law is that those who
work the hardest have more rather than equal distribution.
Entitlement theory lays down three principles:
1. Justice in acquisition: A person who acquires a
holding justly is entitled to that holding.
2. Justice in transfer: If someone transfers you
something then you can possess but such transfer
must be legally valid.
3. Principle of rectification of injustice: If
someone’s right is infringed through coercion,
fraud, robbery, looting, mugging, enslavement,
theft, etc then they can file a claim against the
beneficiaries.
Rawls’s Theory of Justice
Jhon Rawls an American political philosopher was
born in Baltimore, Maryland in the year 1921 and died in
2002. He wrote his book Political Liberalism (1993), The
Law of Peoples (1999), and Justice ad Fairness (2001).
Although the concept has been already discussed by other
philosophers the original book of Justice as Fairness was
reissued in 2005. He introduced various principles and
stated that the people must decide the principle of justice
from behind a “veil of ignorance”. Veil of ignorance is a
method of determining the morality of issues in which the
decision-makers are completely clueless and they decide
the law with a new conception. Rawls suggested the literal
interpretation of a veil of ignorance should not be
 40
considered. The purpose of this theory was to promote
fairness, equality, justice, morality, a good conscience,
and social status. Rawls two principle of justice includes:
1. The principle of greatest equal liberty.
2. Principle of justice.
People living in society frame the laws and the
individuals are instructed to follow the same this concept
is also known as the social contract theory. Law framed by
one single authority can exercise his/her position of power
among a large number of people that’s why it is necessary
to split the authority rather than vesting the power to one
single individual. Earlier the power was given to men to
take decisions and they were not aware of the problems
faced by the woman resulted in biased judgment which
leads to coercion, threat, deception, fraud, etc. Decision-
makers do not give decisions based on gender bias, rich or
poor, wealth, skin color, caste, class, race, creed, or
religion. He further stated that to resolve the property-
related disputes a judiciary is necessary and police force
or military is responsible for protecting the rights of
individuals. According to Jhon Rawls, all people in a fair
society must possess:
• Right to freedom.
• Self-respect.
• Powers and opportunities.
• Every individual must have sufficient money to
fulfill their needs and demands.
 41
Fuller’s Theory of Justice
Lon Luvois Fuller was a most popular American legal
philosopher born on June 15, 1902, and died on April 8,
1978. He published his book named Morality of Law,
1964. Natural law is the law that transformed old law into
a cosmopolitan system. Fuller stated that there is no
connection between law and morality. He debated with
prominent British legal philosopher H.L.A. Hart that there
is not a complete separation but a close connection
between morality and law. He further argued that there are
two kinds of morality:
1. External morality of law
2. Internal morality of law
i) To put law or degree into action.
ii) Retroactive legislation.
iii) Be general.
iv) Unclear legislation.
v) Not be inconsistent.
vi) Not require the impossible.
vii) Be congruent or consistent with official action.
viii) Be reasonably stable.
These laws incorporate moral standards of fairness,
respect, and predictability that together constitute the rule
of law. To have an adequate legal system one must keep
 42
in mind these principles in a system of governance
otherwise the system will lack behind.
Case
Ram Lakhan V. State on 5th December 2006 137(2007)
DLT 173
In this case, a beggar was found begging and he was
arrested in a Certified Institution for 1 year (later reduced
to 6 months) under Section 5(5) of Bombay Prevention of
Begging Act, 1957. Hon’ble High Court looked after
various circumstances:
1. A person begs when he is unemployed.
2. He may be an alcoholic or drug addict.
3. He might be involved in some sort of gang or
something.
4. He may be helpless, starving, poor, or in desperate
need of food.
It was concluded that a person found begging need
not and ought not to be detained in a Certified Institution
because his act of solicitation was not voluntary but under
duress. The beggars beg to survive and the authority must
look that nobody should beg.
Conclusion
Nozick was not in favor of Rawls’s theory and stated
that his theory resulted in inequality in human
development. Rawls’s theory focused on interference with
 43
individual liberties against laws promoting public order
and safety. Nozick principles focused on basic
fundamental rights of an individual (right to freedom, right
to equality, right to speech, right to property, right to
constitutional remedies, right against exploitation, right to
freedom of religion, culture, and educational rights, etc).
But he falsely pointed out the concept of dealing with the
freedom of one single individual rather than all the
individuals living in the society or the community at large.
Rawl looked into the welfare of the community without
discriminating against any individual.
 1

Module – 4
Rights and Dutiesxxiii
Introduction
The development of society is credited to the constant
evolution of law. When people come into contact with
each other, everyone has certain rights and duties
obligated towards one another. A right and duty are the
pillars of law, and are hence consequently protected by it.
Both these concepts are intertwined. The concepts of legal
rights and duties in Jurisprudence are elucidated below.
Definition of Right
The definition of legal rights have been propounded
by several famous legal philosophers. Some definitions
are as follows –
John Austin – According to Austin, “A party has a
right when another or others are bound or obliged by law
to do or forbear towards or in regard of him”. This
definition was not widely accepted. It was stated by John
Stuart Mill that the act referred by Austin should be in the
interest of the person who can be said to have the right. He
illustrated with an example by stating that when a prisoner
is sentenced to death,the jailer is bound to execute him.
Does this mean that the convict has the right to be hanged?
Rudolf Von Jhering – Jhering defined rights as
“legally protected interests”. The law does not protect all
such interests. The interests of men conflict with one
 2
another and the law, is the rule of justice and protects only
certain interests.
John Salmond – Salmond defines right as an
interest recognised and protected by a rule or justice. He
says, for an interest to be regarded as a legal right, it should
obtain not merely legal protection but also recognition.
The law protects cruelty against animals, and to some
interest the interest of animals, but animals do not possess
any legal rights.
Holland – Legal rights were defined by Holland as the
“capacity residing in one man of controlling, with the
assent and assistance of the state the actions of others.” He
followed Austin’s definition
Gray – He defined a legal right as “that power which
a man has to make a person or persons do or refrain from
doing a certain act or certain acts, so far as the power arises
from society imposing a legal duty upon a person or
persons.” He states that the “right is not the interest itself,
it is the means to enjoy the interest secured.”
Supreme Court of India – The Apex Court of India
defined legal right in the case of State of Rajasthan v.
Union of India [AIR (1977) SC 1361] as: “In strict sense,
legal rights are correlatives of legal duties and are defined
as interests whom the law protects by imposing
corresponding duties on others. but in a generic sense, the
word ‘right’ is used to mean an immunity from the legal
power of another, immunity is exemption from the power
of another in the same way as liberty is exemption from
 3
the right of another, Immunity, in short, is no subjection.”
Theories of Legal Rights
There exist two main theories of legal rights – 1. The
Will Theory and 2. The Interest Theory.
The Will Theory of Legal Rights
The Will Theory states that right is an inherent
attribute of the human will. It says that the purpose of the
law is to allow the free expression of human will. This
theory was advocated by scholars like Hegel, Kant, Hume
and so on. The subject matter is derived from human will.
Austin, Holland and Pollock define rights in terms of will.
According to the famed French Jurist, John Locke “the
basis of the right is the will of the individual.” Puchta
defined the legal right a power over an object which by
means of right can be subjected to the will of the person
enjoying the right. This theory has been widely accepted
by the jurists in Germany.
Despite its wide acceptance, there were many
scholars who disagreed with it. Some of the criticisms
were from Duguit who is opposed to the “will” theory.
According to him the basis of law is the objective fact of
“social solidarity” and not the subjective will. The law is
to protect only those acts or rights which further “social
solidarity”. He calls the theory of subjective right a a mere
metaphysical abstraction.
The Interest Theory of Legal Rights
The Interest Theory was proposed by the German
 4
Jurist, Rudolf von Jhering. Jhering defined rights as
legally protected interest. Jhering does’ not emphasize on
the element of will in a legal right. He asserts that the basis
of legal right is “interest” and “not will”. The main object
of law is protection of human interests and to avert conflict
between their individual interest. These interests are not
created by the state, but they exist in
the life of the community itself. Salmond supported it
but mentioned that enforceability is also an essential
element. He says, “Rights are concerned with interest, and
indeed have been defined as interests protected by rules of
right, that is by moral or legal rights.”
Salmond has criticized Jhering’s theory on the ground
that it is incomplete since it completely overlooks the
element of recognition by the state. A legal right should
not only be protected by the state but should also be legally
recognized by it. Gray stated that the theory was only
partially correct. He emphasized that a legal right is not an
interest in itself but it is only a means to extend protection
to interests. He considers legal right as that power by
which a man makes other persons do or refrain from doing
a certain act by imposing a legal duty upon them through
the agency of law “state”.
Both these theories are not opposed to each other, it
is rather a combination of both that is correct. Dr. Allen
has tried to blend these two theories by pointing out that
the essence of legal right seems to be, not legally
guaranteed power by itself nor legally protected interest
by itself, but the legally guaranteed power to realise an
 5
interest. Thus, it would be sensible to say that both “will”
and “interest” are essential ingredients of a legal right.
Elements of a Legal Right
According to Sir John Salmond, each legal right has
5 essential elements –
The Person of Inherence – It is also known as the
subject of right. A legal right is always vested in a person
who may be distinguished, as the owner of the right, the
subject of it or the”person of inherence”. Thus, there
cannot be a legal right without a subject or a person who
owns it. The subject means the person in whom the right
is vested or the holder of the right. There can be no right
without a subject. A right without a subject or a person
who owns it is inconceivable. The owner of the right,
however, need not be certain or determinate. A right can
be owned by the society, at large, is indeterminate.
The Person of Incidence – A legal right operates
against a person who is under the obligation to obey or
respect that right. He is the “person of incidence”. He is a
person bound by the duty or the subject of the duty.
Contents of the Right – The act or omission which is
obligatory on the person bound in favour of the person
entitled. This is called the context or substance of right. It
obliges a person to act or forbear in favour of the person
who is entitled to the right. It may also be known as the
substance of the right
Subject matter of Right – It is something to which the
 6
act or omission relates, that is the thing over which a right
is exercised. This may be called the object or subject-
matter of the right. Some writers, although argue that there
are certain rights which have no objects.
Title of the Right – Salmond has given the fifth
element also, that is, “title”. He says that “every legal right
has a title, that is to say, certain facts or events by reason
of which the right has become vested in its owner”.
Hence, it can be observed every right involves a three-
fold relation, in which it stands
It is a right against some person or persons.
It is a right to some act or omission of such person or
persons.
It is a right over to something to which that act or
omission relates
The terms of ‘person’, ‘act’, ‘thing’ are connected
with the term ‘Right.’
A popular illustration that was quoted by Salmond
satisfies all the above mentioned elements of legal rights.
It is as follows –
“If A buys , a piece of land from B, A is the subject
or owner of the right so acquired. The persons bound by
the correlative right are persons in general, for a right of
this kind avails against all the world. The context of the
right consists in non-interference with the purchaser’s
exclusive use of the land. The object or subject-matter of
 7
the right is the land. And finally, the title of the right is the
conveyance by which it was acquired from its former
owner”
Kinds of Legal Rights
Jurists have classified legal rights in the following
ways –
Primary and Secondary Rights
Public and Private Rights
Positive and Negative Rights
Vested and Contingent Rights
Perfect and Imperfect Rights
Principal and Accessory Rights
Legal and Equitable Rights
Proprietary and Personal Rights
Rights in Rem and Rights in Personam
Rights in re Propria and Rights in re Aliena
Primary and Secondary Rights
Primary Rights are also called antecedent rights. It is
vested within a person by law or any other legal manner.
These are the bundles of those rights which are the
privileges enjoyed by any person e.g. a person’s rights
to Liberty.
 8
A violation or breach of the primary rights, on the
other hand, gives rise to a sanctioning right or remedial
right. These are also known as secondary rights. It is also
called the remedial or adjectival rights. It is called so as it
is a mode of legal enforcement, for the loss of the primary
right. It is subdivided into two kinds – 1. Right to exact
and receive a pecuniary penalty from the defendant for
loss of right and 2. Right to exact and receive damage for
the injury caused to the defendant. It can be said that
primary rights exists independently whereas secondary
rights have no separate existence and arise only on
violation of primary rights.
Public and Private Rights
Legal rights can be considered as both public and
private. Public rights are those vested with the state. The
state enforces such right as a representative of the subjects
in public interest. A public right is possessed by every
member of the public. For example, a right that is
concerned with the Government may be termed as a public
right such as the right to vote. A private right, on the other
hand, is concerned with individuals, that is both the parties
connected with it are private persons. For example,
owning a vehicle is a private right.
Positive and Negative Rights
A right is considered as positive or negative
depending upon its correlative duty. A positive right exists
when the owner of it is entitled to something to be done
by the person of incidence. A person possessing a positive
 9
right can compel the person with the duty to perform a
positive act. For instance, a right to receive a
compensation is a positive right. A negative right
corresponds to a negative duty and is a right that the
person bound shall refrain from some act which would
operate to the prejudice of the entitled; in other words, a
negative right, corresponds a negative duty. It is a right of
the person and the person bound shall restrain from doing
some act which will be prejudicial to the person entitled,
such as when a person owns a land, it is the duty of others
to not trespass.
Every person is entitled to negative rights, but only a
few get positive rights. The number of negative rights is
larger than the positive rights. The difference between
these rights is illustrated below –
A positive right corresponds to a positive duty
whereas a negative right corresponds to a negative duty.
A positive right involves a positive act while a
negative right involves some kind of forbearance or not
doing.
A positive right entitles the owner of it to an alteration
of the present position to his advantage whereas a negative
right seeks to maintain the present position of things.
A positive right aims at some positive benefit but a
negative right aims at not to be harmed.
A positive right requires an active involvement of
others but a negative right requires only positive
 10
acquiescence of other persons.
A positive right receives something more than what
one already has whereas a negative right seeks to retain
what one already has.
A positive right has a mediate and indirect relation to
the object while a negative right is immediately related to
the object.
Vested and Contingent Rights
A vested right is a right in respect of which all events
essential to vest the right in the owner have happened;
while a contingent right is one in respect of which only
some of the events necessary to vest the right have
happened and the vesting can be complete only on the
happening or non-happening of a specified uncertain
event. A vested right is not dependent upon the fulfillment
of any condition and a right becomes contingent only on
the fulfillment of any condition that may either be
subsequent or precedent. Vested rights are transferable
and inheritable, this is not possible in contingent rights.
Perfect and Imperfect Rights
A perfect right is one which corresponds to a perfect
duty and a perfect duty is one which is not only recognized
by the law but is enforced also. Perfect right means the
complete right, which signifies the right for which there is
remedy also. This is explained by the latin maxim “ubi jus
ibi remedium” which means, where there is a right, there
is a remedy. When in case of the breach the right is not
 11
enforceable in a court of law then it is known as imperfect
right. This was stated in the case of Allen v. Waters &
Co. [(1935) 1 KB 200]. The Directive Principles of the
State Policy that is present in the Indian Constitution is an
example of imperfect rights.
Principal and Accessory Rights
A principal right is a primary right of a person vested
in him by the law of the land, or through any other legal
method. An accessory right is a right which is connected
with the principal right. Principal rights exist
independently while accessory rights are dependent upon
principal rights. They are beneficial on the principal right.
Legal and Equitable Rights
These type of legal rights cannot be found in India. It
is found only in England. Legal rights are those which
were recognized by the Courts of Common Law in
England and Equitable rights are those which were solely
recognized in the Court of Chancery. The underlying
principle in regards to equitable rights is that when there
are two inconsistent equitable rights claimed by different
persons over the same thing, the first in time shall prevail.
Although, where there is a conflict between a legal right
and an equitable right, the legal right shall take precedence
over equitable right even if it is subsequent to the equitable
right in origin. The Privy Council in Chatra Kumari Devi
v. Mohan Bikram [(1931) 58 I.A 279] observed that the
Indian law does not recognized legal and equitable estates.
Proprietary and Personal Rights
 12
Proprietary Rights are rights that are related to a
person’s property whilst personal rights relate to one’s
body. Proprietary rights are transferable and personal
rights are not. If the breach of a right can be measured in
terms of money or it has money value than it is said that
the person has proprietary right but if the breach of a right
cannot be measured in money or it has no money value
that that right is known or called as personal right. A
personal right is uninheritable and dies with him.
Rights in Rem and Rights in Personam
These are also called real and personal rights. The
modem terms right “in rem” and right “in personam” have
been generalized, somewhat inaccurately, from Roman
sources. A right in rem means a right available against the
whole world whereas a right in personam is a right that is
available only against specific number of people.
Rights in re Propria and Rights in re Aliena
Rights in re Propria and Rights in re Aliena are a
classification of proprietary rights. Right in re Propria is
the right in his own thing and if he has a right in the
property belonging to another than he is said to have a
right in re Aliena. A right in re-Aliena ‘or encumbrance”’
has been defined by Salmond as one
which limits or derogates from some more general
right belonging to some other
person in respect of the same subject-matter. Salmond
refers to four classes of encumbrances, namely, i) Leases;
 13
ii) Servitudes; iii) Securities & iv) Trusts.
i) Leases – A lease is an encumbrance of property
vested in one person by a right to
the possession and use of it vested in another person.
ii) Servitude – A servitude is a right to the limited use
of a piece of land unaccompanied
either by the ownership or possession of it.
iii) Security – Security is an encumbrance vested in a
creditor over the property of his
debtor for the purpose of securing the recovery of the
debt.
iv) Trust – A trust is an encumbrance in which the
ownership of property is limited
by an equitable obligation to deal with it for the
benefit of someone else. The owner of the encumbered
property is called the trustee and the owner of the
encumbrance is the beneficiary of tire trust.
Enforcement of Legal Rights
A legal right may be enforced through a Court of Law
that has been established by the State. A legal right is
generally enforced by awarding damages in civil cases. IF
damages don’t suffice, the object itself may be restored.
Specific performances may also be ordered by the court.
Alternatively, the court may grant an injunction for the
enforcement of a legal right. The law of injunction is
 14
mentioned in Specific Relief Act, 1963. It is a prohibitive
writ which restrains a party from doing an act that affects
the plaintiff from enjoying his legal right.
Duty
A duty is an obligatory act. It is something to do or
abstain from doing in favour of another person. A man has
a duty towards any matter that he is legally obligated to.
The term legal duty has been defined in the following
ways –
Keaton – A duty is an act of forbearance which is
enforced by the state in respect of a right vested in another
and breach of which is a wrong.
Salmond – A duty is roughly speaking an act which
one ought to do, an act the opposite of which would be a
wrong.
A duty is of two kinds – 1. Moral and 2. Legal
Moral – An act that is the opposite of which is a moral
or natural wrong. A duty may be
moral but not legal or legal but not moral, or both at
once. For example, the act of not wasting paper is our
moral duty but not legal.
Legal – A legal duty is an act, the opposite of which
is a legal wrong. It is an act recognized as a duty by law
and treated as such for the administration of justice. The
law enforced the performance of a legal duty, and punishes
the disregard of its performance.
 15
Classification of duties
Duties are classified under the following categories –
Primary and Secondary Duties
A primary duty is one which exists “per se” and is
independent of any other duty. A secondary duty, on the
other hand, is one which has no independent existence of
other duties. A secondary duty is also called sanctioning
or a remedial duty.
Positive and Negative Duties
Duties may also be distinguished into positive and
negative duties. Duties that are to be performed by us at
the behest of the law is known as a positive duty whilst an
act that is prohibited from being performed under the law
is a negative duty.
Absolute and Relative Duties
In the words of Austin, rights and duties are
interdependent. He has classified duties into absolute and
relative. Relative duties are those for which there is a
corresponding right and absolute duties are those that do
not have any corresponding rights. He mentions four kinds
of absolute duties:-
Self-regarding duties such as a duty not to commit
suicide or not to consume drugs or liquor, etc.
Duties towards indeterminate persons or public at
large, e.g. a duty not to commit a nuisance.
 16
Duties to those who are not human beings such as
duty towards God or animals, birds, etc.
A duty towards the sovereign or the state.
Rights and duties
It is an agreed fact that rights and duties are co-
existent. Although there is exists a difference in opinion
whether there must be a right that correlates to the duty.
Salmond says that there can be no right without a
corresponding duty and vice versa. According to this,
every duty must be a duty towards a person or some
person, in whom a correlative right is vested and
conversely every right must be a right against some
persons upon whom, a correlative duty is imposed. Every
right and duty has a bond of legal obligation. Austin has
stated that rights are interdependent, not correlative,
contrary to Salmond’s opinions. He has classified them
into relative and absolute duties as explained above.

Hohfeld’s Theory of Jural Relationsxxiv

According to Hohfeld, one of the greatest obstacles in
finding solutions to legal problems is the assumption that
all legal concepts can be reduced to ‘rights’ and ‘duties’.
Hohfeld explains exactly how several conceptions are
mistaken for rights and duties.
Introduction
Legal professionals generally regard jurisprudence as
a purely academic subject with no practical applications.
The reason for such a belief is that jurists and writers
 17
generally propose their own understandings of legal
concepts and derive intellectual pleasure from it and
consider their job done. However, the different theories
are only a means to an end and not the end itself. Very few
writers deliberated upon the utility of their theory.
Prof. Wesley Newcomb Hohfeld always emphasized
upon the important part played by analytical jurisprudence
in the legal profession. He advocated that every legal
professional must have a basic understanding of the
concepts of analytical jurisprudence in order interpret and
apply the law correctly and accurately. He believed that
the task of finding solutions to legal problems becomes
much easier by studying and applying concepts of
analytical jurisprudence.
It must be noted that although Hohfeld strongly
believed in the utility of analytical jurisprudence, he
recognized the fact that it is not an all-sufficient tool for a
legal professional. He emphasized upon the fact that
analytical jurisprudence only paves the way to other
branches of jurisprudence and only a complete
understanding of jurisprudence would facilitate the quest
for solutions to legal problems. One of his major
contributions to the field of analytical jurisprudence has
been his theory of jural relations.
Theory of Jural Relations
According to Hohfeld, one of the greatest obstacles in
finding solutions to legal problems is the assumption that
all legal concepts can be reduced to ‘rights’ and ‘duties’.
 18
Moreover, it is believed that the aforesaid two legal
concepts are adequate enough to help solve the problems.
Although prima facie it may appear to be a problem of
only terminologies, Hohfeld argues that in a “closely
reasoned (legal) problem” such an issue may lead to lack
of clarity in thoughts and expression. He identifies eight
fundamental legal concepts, namely- rights, privilege,
power, immunity, no-rights, duty, disability and liability.
He then proceeds to arrange them as ‘jural opposites’ and
‘jural correlatives’ and explains their practical application
by giving relevant examples. The arrangement of the
concepts as opposites and correlatives is as follows:
Jural Rights Privilege Power Immunity

Opposites No- Duty Disability Liability

rights
Jural Rights Privilege Power Immunity

Correlatives Duty No- Liability Disability

rights
Every pair of correlatives must exist together and
none of the pairs of opposites can co-exist. Thus, if a
person has a right, he also has a duty. However, if a person
has a privilege, he cannot have a duty. The eight Jural
Relations are basic parts of the more complex legal
relations that law has to deal with. Let us discuss each of
the relations separately in detail.
Rights and Duties
 19
As discussed earlier, ‘rights’ is one of the most
misunderstood terms since everything is tried to be
defined as a right. Words such as privilege, power and
immunity are used synonymously with the term ‘rights’.
However, Hohfeld is of the opinion that if we look at the
statutes carefully, there is a marked distinction between
the various legal concepts. Hohfeld proposes that the term
rights must be confined to only that which exists
corresponding to a duty. Rights and duties are correlated
concepts and when a right is infringed there is always a
duty that has been violated.[1]
Hohfeld uses the example of trespass to explain the
correlation between rights and duties. He states that
suppose if X has a land and he has the right against Y that
the latter shall not enter in his land, Y also has the
corresponding duty to not enter upon X’s land. He goes on
to say that an appropriate synonym for the term ‘right’, in
the light of the aforesaid meaning accorded to it, would be
‘claim’.
Privilege and No-rights
Hohfeld defines privilege as the jural opposite of
duty. Privilege, according to him, is the negation of a duty.
The negation of duty takes place only when the contents
of both, the duty and privilege, are opposite to each other.
For instance, a duty not to enter can be negated by
the privilege of entering. Duty is the correlative of right.
Similarly, privilege also has a correlative. However, there
exists no particular term to explain the same, which is
why, Hohfeld has decided to term it as a “no-right”. Thus,
 20
if I have the privilege of entering into land, the correlative
is a “no-right” against my entering to the land. Unlike a
duty which has to be necessarily fulfilled, one may or not
exercise his privilege. There is no right that is infringed in
case of non-exercise of a privilege.
After discussing the meaning of the concept of
privilege, Hohfeld emphasizes upon the importance of
differentiating between a privilege and a right and
discusses how usage of both the terms interchangeably has
caused “blurring of ideas”.
Powers and Liabilities
Legal power is the jural opposite of legal disability
and the jural correlative of legal liability. Power is the
ability conferred upon an individual by the law to alter or
create new legal relations. One can make a will of his
property or can alienate his property; one can marry one’s
deceased wife’s sister–all these are often termed as rights
however a careful legal analysis reveals that they are
powers, not rights.
A synonym for legal power is (legal) ability.[2] Legal
relations may be altered by facts and circumstances which
may or may not be in human control. When such facts are
in control of one or more human beings, such human being
is said to possess legal power. Liability is the jural
correlative of power. Whenever a person exercises the
power to alter existing legal relations or to create new legal
relations, the person with whom such legal relations have
been created or altered owes a liability to the former.
 21
Hohfeld proposes the terms “subjection” and
“responsibility” as synonyms of the term “liability”. Many
‘duties’ or ‘obligations’, ignorantly stated to be so, are
actually liabilities.
Immunities and Disabilities
Immunity is the jural correlative of disability and the jural
opposite of liability. In simple terms, immunity is the
negation of liability. According to Hohfeld, the contrast
between power and immunity is the same as the contrast
between right and privilege. He states that a right is the
“affirmative claim” against someone and privilege is a
freedom from such an affirmative claim. Similarly, power
is the “affirmative control” over a legal relation and
immunity is the freedom from such control. The jural
correlative of immunity is a disability which refers to no-
power. Thus, when a person exercises immunity in a legal
relationship with another, the latter has no power over the
legal relation.
Conclusion
Hohfeld explains exactly how several conceptions are
mistaken as rights and duties. With his theory of jural
relations, he has provided legal professionals with a
powerful tool to help understand complex legal problems
and devise effective solutions. The widespread tendency
to confuse rights with liberties can lead a jurist to make
conceptual errors and faulty interpretations. For example,
if one believes that the right to free speech is a right (in the
strict sense), but in fact it is only a liberty, then one will
 22
wrongly believe that others have duties of non-
interference which are correlative to this ‘right’. The
concepts of rights, privileges, powers, immunities seem to
be the legal benefits granted to an individual while the four
correlative terms – duty, no-right, liability and disability
are the corresponding legal burdens.

Possessionxxv
Definition
Possession is one of the most essential concepts in
human life. It is legal as well as a factual concept, which
makes it difficult to define. The literal meaning of
possession is to have physical control over something
materialistic. It is impossible to define the concept so as to
cover all the legal scenarios and situations in which it may
apply.[1] Let us have a look at some of the definitions
prescribed by notable jurists.
According to Salmond, “possession is the continuing
exercise of a claim to the exclusive use of an object.”
Savigny defines Possession as, “intention coupled
with physical power to exclude others from the use of a
material object. According to Ihering, “whenever a person
looked like an owner in relation to a thing, he had
possession of it unless possession was denied to him by
rules of law based on practical convenience.” Strictly
speaking in the legal sense, mere physical control over a
thing does not amount to possession. It must be coupled
with an intention to exercise such physical control and to
exclude others from it.
 23
Types of Possession
Possession can be broadly divided into two
categories- possession in fact and possession in law.
Possession in Fact
Possession, in fact, refers to the physical possession
of a thing. It refers to the de facto possession of a thing.
The physical possession over a thing need not be
continuous. Mere intention to exercise the physical control
and to exclude others from it is enough to constitute
possession in fact. The person need not always be in
physical contact with the object.
Possession in Law
Possession in law refers to the possession of a thing
as recognized in the eyes of law. It refers to the de
jure possession of a thing. Generally, a person who is in de
facto possession of a thing also has a de jure possession
over it. However, there are exceptions to this. For instance,
a servant may have physical control over his master’s
property, but in the eyes of law, the real possessor is the
master. Thus, there exists possession in fact but not
possession in law. Similarly, there may be a case where
there exists possession in law but not possession, in fact,
such as that in constructive possession.
The common element in both the types is the
exclusive right of the possessor to exercise control,
physical or otherwise, over a thing. Possession, in fact, is
termed as possessio naturalis and possession in law is
 24
known as possessio civilis in Roman law.
Elements of Possession
There are two essential elements of possession. These
are the corpus of the possession and the animus or
intention to hold the possession. Corpus of the possession
refers to the body of the possession, which is, the object
which is in the possession of the possessor. Animus of the
possession refers to the intention to hold the possession or
retain the possession of a thing. Neither of them alone can
constitute a valid possession.
Corpus of possession (corpus possessions)
It refers to the physical contact of the possessor with
a thing in such a way that it expresses the intention of the
possessor to the exclusive use of the thing. It can be
understood by examining the two relations involved in it-
relation of the possessor to other persons and the relation
of the possessor to the thing he possesses.
Relation of possessor to other persons- The person in
possession of a thing should be provided with some
amount of security to ensure his exclusive use of the thing.
A person is said to be in possession of a thing when there
is a reasonable apprehension on the part of others to not to
interfere with his right to use of the thing. Such security
may be derived from the following sources:
1. The physical power of the possessor
2. Personal presence of the possessor
 25
3. Secrecy- one may keep a thing safe from others by
hiding it
4. Custom
5. Respect for the rightful claim
6. Visibility of the claim or animus domini
7. The protection afforded by the possession of other
things- the possession of a house may confer
possession of chattels inside it. The question as to
whether the possession of a thing grants possession
to other things connected to it has to be decided on
a case-to-case basis.
In a case where a parcel of banknotes was dropped on
the floor of a shop, it was held that the founder of the
parcel to had a better title to it than the owner of the
shop.[2]
Relation of possessor to the thing possessed- The
possessor must have the physical power to ensure his
exclusive use of the thing he possesses. If one puts money
into a box and locks it, he is said to be in possession of the
same until he is in possession of the box or the key to the
box. The possession of the key or the box indicates the
intention of the possessor to the exclusive use of the
money.
Animus Possidendi
Animus possidendi refers to the subjective element of
possession. While corpus refers to the physical power to
 26
retain the exclusive use of the thing which is
possessed, animus possidendi refers to the intention of
the possessor to exclusively use the thing which he
possesses. Some important points must be noted with
regards to animus possidendi:
▪ It may be consciously wrongful. A thief is still in
possession of the stolen object regardless of the
fact that theft is a wrongful act.
▪ Possessor’s claim must be exclusive. However, the
exclusion may not be absolute. For instance, an
owner of land may grant a right of way over it to
the general public. This does not mean that he has
lost possession of the land.
▪ The possessor may not intend to use the thing as
an owner.
▪ Even if a person is making the claim on someone
else’s behalf, he is nevertheless in true possession
of the thing.
▪ It need not be specific towards a particular person
or group of persons and may be general.
Corpus possessionis cannot exist without animus
possidendi.[3]
Importance
Many important legal consequences flow from the
concept of possession. Possession is considered to be
strong evidence of ownership. Law protects possessor of
 27
a thing against every person other than someone who has
a better title or possessory right. For instance, law protects
the possessory right of a thief over a stolen object against
everyone except the real owner who has a better title to it.
According to section 110 of the Indian Evidence Act,
1872, whenever a person who is in possession of a thing
is sued or alleged of not being the owner of that thing, the
burden of proving that he is not the owner is upon the
person who files the suit or makes such an allegation or
assertion in the first place. Possession is also said to be one
of the essential requirements for the acquisition of
ownership. Moreover, one of the most common methods
of transferring ownership is by transfer of possession.
In the words of Holland, “The ascertainment of the
nature of legal possession is, in fact, indispensable in
every department of law. It is as essential to the
determination of international controversies arising out of
the settlement of new countries, or to the conviction of a
prisoner for larceny, as it is to the selection of the plaintiff
in an action of trover or trespass.”

Ownershipxxvi
Meaning & Definition
Ownership refers to the relation that a person has with
an object that he owns. It is an aggregate of all the rights
that he has with regards to the said object. These rights
are in rem, that is, they can be enforced against the whole
world and not just any specific person. The concept of
ownership flows from that of possession. In the primitive
 28
societies, there was no idea of ownership. The only
concept that they identified with was that of possession. It
was only after they started settling down by building
homes and cultivating land that they developed the idea of
ownership.
According to Austin, ownership refers to “a right
indefinite in point of user, unrestricted in point of
disposition and unlimited in point of duration.”
Concurring with Austin’s view, Holland defines
ownership as the right of absolute control over an object.
According to him, ownership is an aggregate of all rights
pertaining to the possession, enjoyment and disposition of
an object. According to Salmond, “ownership, in its most
comprehensive signification, denotes the relation between
a person and right that is vested in him.”
Essentials of Ownership
Upon analyzing the various definitions of ownership, the
following essentials of ownership can be derived:
1. Indefinite point of user- The owner of a property
has the liberty to use it. Others have the duty to not
to use it or to not to interfere with the owner’s right
to use it.
2. Unrestricted point of disposition- The owner has
the right to dispose of the property at his own will.
A person needs to have the ownership of a thing in
order to transfer that ownership to someone else.
Mere possession does not give the power to
 29
dispose of the ownership.
3. Right to possess- The owner has the right to
possess the thing which he owns.
4. Right to exhaust- If the nature of the thing which
is owned is such that it can be exhausted then the
owner has the right to exhaust it at his own will.
5. Residuary character- The owner may part with
several rights with regards to the thing he owns.
This does not take away the ownership from him.
6. Right to destroy or alienate- An owner has the
right to destroy or alienate the thing that he owns.
Subject Matter of Ownership
One of the subject matters of ownership is material
objects. Salmond is of the view that the real subject matter
of ownership is rights. This particular view of Salmond is
supported by the common law system. However, it has
also received some amount of criticism. It has been argued
that law generally recognizes ownership of land and
chattels and not of any right. A person is said to have
certain rights and not own rights.
The subject-matter of ownership is essentially
determined by the legal system of a state. There are certain
objects which, by their very nature, are incapable of being
owned such as jungles, air, water, etc. However, the legal
system of a country may recognize the ownership of such
objects thereby making them a subject matter of
ownership.
 30
Modes of Acquisition
Ownership may be acquired in two ways.
Firstly, ownership may be acquired over a thing
which has no owner. Such things are known as res
nullius and the ownership may be acquired by possession.
Secondly, there may be things which are already
owned by someone else. The ownership in such cases can
be acquired using the derivative method, that is, by way of
purchase, gift, inheritance, etc. The acquisition of
ownership, unlike possession, has to be done strictly by
lawful means.
Kinds of Ownership
Ownership may be of the following kinds:
1. Corporeal and Incorporeal Ownership
Corporeal ownership refers to the ownership of
material objects whereas incorporeal ownership refers to
the ownership of a right. Incorporeal ownership can also
be said to be the ownership of intangible things. Examples
of corporeal ownership include ownership of a house,
table, car, etc. whereas those of incorporeal ownership
includes ownership of trademarks, copyright, patents, etc.
2. Trust and Beneficial Ownership
The subject-matter of such ownership consists of
property owned by two persons wherein one person is
obligated to use it to the benefit of the other. The person
under such an obligation is called the trustee and his
 31
ownership is known as trust ownership. The person to
whose benefit the property is to be used is called the
beneficiary and his ownership is known as beneficial
ownership. Trust ownership is only a matter of form and
not a matter of substance. This means that a trustee’s
ownership of the property is only nominal in nature. He is
given someone else’s property fictitiously by law and
thereby obligating him to use it to the real owner’s benefit.
3. Legal and Equitable Ownership
Legal ownership refers to the ownership as
recognized by the rules of a legal system whereas
equitable ownership refers to the ownership as recognized
by the rules of equity. There may be cases wherein law
does not recognize the ownership due to some effect but
equity does. In such situations, the ownership is said to be
equitable ownership. Legal ownership is a right in
rem whereas equitable ownership is a right in
personam since equity acts are in personam. A person
may be the legal owner of a thing and another may be the
equitable owner of the same thing at the same time.
4. Vested and Contingent Ownership
All kinds of ownership may either be vested or
contingent. Ownership is vested ownership when the title
of the person is perfect. On the other hand, ownership can
be said to be contingent if it is imperfect and can be
perfected subject to the fulfilment of certain conditions.
Thus, contingent ownership is conditional in nature.
5. Sole Ownership and Co-ownership
 32
Under ordinary circumstances, a right can be owned
by only one person at a time. Such ownership is known as
sole ownership. However, in certain cases, same right may
be vested in two individuals at the same time. This is
known as co-ownership. For instance, partners of a firm
are co-owners of the partnership property.
6. Common ownership and Joint Ownership
Co-ownership is of two kinds. It may be owned in
common or joint ownership. In case of common
ownership the owners’ share in the property can be
inherited by their respective heirs whereas in case of joint
ownership, in case of death of any one of the owners, his
or her share is transferred to the other owner. This is the
fundamental point of difference between the two.
7. Absolute and Limited Ownership
Absolute ownership is one wherein the owner is
vested with all the rights with regards to the property
which he owns. Such rights are exclusively vested in the
owner. It must be noted here that absolute use of the
property implies general use since the property can only
be used by lawful means and for lawful purposes. When
there are limitations imposed upon the owner’s rights with
regards to his property, the ownership is known as limited
ownership.
The concept of life tenancy under English law is a
classic example of limited ownership. Hindu law too
recognizes limited ownership. When a Hindu widow is
made the owner of her husband’s property so long as she
 33
remains alive after which the property shall pass on to the
legal heirs, the ownership of the widow is limited
ownership.

Relation between Possession and

Ownershipxxvii
Possession in law recognizes the right to possession
of a person even if he is not in physical possession of the
object. Ownership, on the other hand, is a
purely legal concept. Thus, the nature of both concepts is
such that they complement and supplement each other.
Possession and ownership are deeply interrelated with
each other. While one is a factual concept, the other is a
strictly legal concept. Both of these concepts together
govern the right to property of an individual. The concept
of ownership flows from that of possession and the proof
of better title (ownership) over a thing by one leads to the
loss of possession of the thing by another. Therefore, it is
essential to evaluate the interrelation between possession
and ownership in order to clearly understand both the
concepts and apply them correctly and accurately to solve
legal problems.
Nature
Possession is essentially the relation of a person with
an object in the eyes of society. Before any significant
legal development in the area, possession was only said to
be present when a person was in physical contact and
control of the thing and had an intention to protect his
exclusive right to use the object. The legal policy adopted
 34
by various states led to the classification of possession into
possession in fact and possession in law. Possession in law
recognizes the right to possession of a person even if he is
not in physical possession of the object. Ownership, on the
other hand, is a purely legal concept.
Thus, the nature of both concepts is such that they
complement and supplement each other. Where one
describes the factual relation of a person with his property,
the other defines the legal relation.
Subject-matter
Both ownership and possession can, in general sense,
be said to have the same subject-matter. However, it is not
that one cannot exist without the other.
Possession without ownership
There may be rights which exist in fact but may not
be legally recognized. Therefore, one may be in lawful
possession of an object but may not have any title over it,
that is, no ownership of it. For example, a person may
possess intellectual property rights even though they may
not be recognized as legal rights.
Ownership without possession
There may be rights which can be legally owned but
cannot be possessed. Such rights are known as transitory
rights. These rights cannot be possessed since they cannot
be exercised without being destroyed. An example of this
may be the right of the creditor to recover the amount due
to him. He owns such a right but does not possess it since
 35
once he successfully exercises his right to recover the debt,
it ceases to exist. A deviation from this has been observed
in the case of Rahimtoola v. Nizam of
Hyderabad[1] wherein the creditor, who was the
Government of Pakistan, was said to be in “possession and
control” of the right to recover the debt due from a bank.
Duration
Possession is temporary whereas ownership is
relatively more permanent. Possession exists so long as
the person is in physical control of the object he possesses
and so far as he wishes to retain his right to exclusive use
of the object. Ownership, on the other hand, refers to the
legal title and exists so long as the person has a good title
to the object in the eyes of law. Ownership ceases to exist
when it is transferred to someone else through a proper
legal procedure. Therefore, ownership is relatively more
permanent.
Possession as Evidence of Ownership
Possession is considered to be strong evidence of
ownership. Law protects possessor of a thing against every
person other than someone who has a better title or
possessory right. For instance, law protects the possessory
right of a thief over a stolen object against everyone except
the real owner who has a better title to it. According to
section 110 of the Indian Evidence Act, 1872, whenever a
person who is in possession of a thing is sued or alleged
of not being the owner of that thing, the burden of proving
that he is not the owner is upon the person who files the
 36
suit or makes such an allegation or assertion in the first
place.
Modes of Acquisition
Possession and ownership differ in their modes of
acquisition. Possession consists of two elements- corpus
possessionis and animus possidendi. The loss of any one
of the two elements would result in the destruction of
possession of that thing. So long as the person has physical
control over a thing and the power and intention to defend
his exclusive right to the use of the thing, there is
possession. The acquisition of possession may be done by
lawful or unlawful means.
Ownership may be acquired in two ways. Firstly,
ownership may be acquired over a thing which has no
owner. Such things are known as res nullius and the
ownership may be acquired by possession. Secondly, there
may be things which are already owned by someone else.
The ownership in such cases can be acquired using the
derivative method, that is, by way of purchase, gift,
inheritance, etc. The acquisition of ownership, unlike
possession, has to be done strictly by lawful means.
 1

Module – 5
Liabilityxxviii
What is Liability
Liability is the result of a violation of the law. Law
lays down is down the right and duties on the
individual. The law awards legal rights to one individual
and imposes the duty upon another person. A person
should not infringe is the legal right of others. If anybody
violates the legal right of another, he is said to have
committed a wrong. If there is a wrong there is a liability.
Definition of Liability -
It is difficult to define the term 'liability' Some
Eminent Jurists made attempt to define the term 'liability'.
Salmond - According to Sir John Salmond, "liability
or responsibility is the bond of necessity that exists
between the wrongdoer and the remedy of the wrong."
Markby – According to Markby, the word 'liability'
is used to describe the condition of a person who has a
duty to perform whether that duty is primary one or
secondary or sanctioning one.
Austin - Austin prefers to use the term 'imputability'
to 'liability'. According to him, Those certain
forbearances, Commissions or acts, together with such of
their consequences, as it was the purpose of the duties to
avert, are imputable to the persons who have forborne
omitted or acted.
 2

Different Kinds / Types of Liability –

Different Kinds of Liability are as follows -
1) Civil liability – Civil liability is the enforcement
of the right of the plaintiff against the dependent in civil
proceedings. Civil liability gives rise to Civil Procedure
whose purpose is to the enforcement of certain rights
claimed by the plaintiff against the defendant. Examples
of civil proceedings are an action for recovery of the Debt,
Restoration of property, the specific performance of a
contract, recovery of damages, the issuing of an
injunction against the threatened injury etc.
2) Criminal Liability - Criminal liability is the
liability to be punished in a criminal proceeding. in
criminal liability, punishment is awarded to a
wrongdoer. If the person is guilty of committing the
offense with criminal intension then he is liable for
punishment. Criminal liability is based on the Maxim
"actus non facit reum nisi mens sit rea" it means the
offender is guilty only when it is done with the guilty
mind.
3) Penal liability -The theory of penal liability is
concerned with the punishment of wrong.There are
different kinds of punishment, Deterrent, preventive,
retributive, reformative etc. A penal liability can arise
either from a criminal or a civil wrong. There are three
aspects of penal liability those are the conditions,
incidence, and measure of a liability. As regards the
 3
conditions of penal liability, it is expressed in the maxim
"actus non facit reum nisi mens sit rea" This means that
the Act does not constitute guilt unless it is done with
guilty intention. Two things are required to be considered
in this connection and those are the act and the mens
rea requires the consideration of imitation
and negligence. The act is called the material condition of
penal liability and the mens rea is called the formal
condition of penal liability.
4) Remedial Liability - Remedial liability is based
on the Maxim "Ubi jus ibi remedium" it means when
there is right there must be some remedy. The force of law
can be used to compel a person to do what he ought to do
under the law of the country. if an injury is caused by the
violation of a right, the same can be remedied by
compelling the person bound to comply with it.The first
exception is an imperfect obligation or duty, Second
exception unenforceable duties and the third exception is
the impossibility of performance by law.
5) Vicarious liability - Vicarious liability means a
liability which is incurred for or instead of another.
Generally, a person becomes liable for a tort committed by
him. But there are certain circumstances in which one
person becomes liable for the tort committed by another.
Such liability is called vicarious liability. There are three
exceptions to the general rule that man must be forced to
do by the force of law what he is bound to do by a rule of
law.
Example-
 4
Master and servant
Firm and partner
Employer and independent contractor
6) Absolute or strict liability
Both in Civil and criminal law, mens rea or guilty
mind is considered necessary to hold a person
responsible/liable. However, there are some exceptions to
the general rule. In those cases, a person is held
responsible irrespective of the existence of either wrongful
intent or negligence. Such cases are known as the wrongs
of absolute liability/ strict liability.
 1

i
The Legal system in ancient India (legalservicesindia.com)
Also Refer,
1. The Evolution of Legal System in India - CLATalogue
(lawctopus.com)
2. Evolution of Law - A short History of Indian Legal Theory
(lawyersclubindia.com)
3. Evolution of common law(11th Century-20th Century)
(ipleaders.in)
4. Development of jurisprudence in ancient India - iPleaders
ii
Greek law | ancient Greece | Britannica
Also Refer,
1. Greek history of law
2. Greek Civilization: Summary, Origin, Location and
Characteristics (crgsoft.com)
iii
Roman Law - Concept, periods and characteristics - Daily
Concepts (conceptdaily.com)
Also Refer,
1. The Evolution of Roman Law - Roman Law Essays
(lawaspect.com)
2. How did law evolve during the Roman period? - NYK
Daily
iv
Law, Justice and Morality - Legal Method - Legal PaathShala
v
Ethics, Morals and Law - INSIGHTSIAS
(insightsonindia.com)
vi
Ethics Explainer: Ethics, morality & law - The Ethics Centre
Also Refer,
1. Law, Justice and Morality | Interlinking and Differences |
Lexpeeps
2. (15) Ethics vs Morals vs Law | LinkedIn
vii
jurisprudence-Unit-I.pdf (uok.edu.in)
viii
Meaning Nature And Scope Of Jurisprudence - All you need
to know (legalbites.in)
 2

ix
Schools of Jurisprudence | Law column
x
Concept of Law and Schools of Jurisprudence - Legal Desire
xi
“Jurisprudence in the modern sense of term owes its origin to
western legal thoughts”- Explain. | The Lawyers & Jurists
(lawyersnjurists.com)
xii
Dharma and Indian Jurisprudence - Indian Law Portal
Also refer, Development of jurisprudence in ancient India -
iPleaders
xiii
Essay on Social Change and Social Transformation
(shareyouressays.com)
xiv
Social Justice - Overview, History and Evolution, Five
Principles (corporatefinanceinstitute.com)
xv
Civil Law vs Common Law - Difference and Comparison |
Diffen
xvi
Definition of Law and Its Kinds - Law with Shaheen
xvii
Kinds Of Law - Understanding Jurisprudence (legalbites.in)
xviii
Sources of law in jurisprudence - iPleaders
xix
Concept of Justice (legalbites.in)
xx
Administration of Justice | Jurisprudence - SRD Law Notes
xxi
ADMINISTRATION OF JUSTICE (legalbites.in)
xxii
Theories of Justice: Rawls, Fuller, Nozick | Lexpeeps
Also refer, A Theory of Justice - Overview, How It Works,
Principles (corporatefinanceinstitute.com)
xxiii
Rights and Duties in Jurisprudence (legalbites.in)
xxiv
Hohfeld's Theory of Jural Relations (legalbites.in)
Also refer, Hohfeld's Analysis of Rights: An Essential Approach
to a Conceptual & Practical Understanding of the Nature of Rights -
[2005] MurUEJL 9 (austlii.edu.au)
xxv
Possession: Definition, Concept & Importance (legalbites.in)
xxvi
Ownership: Definition, Concept and Kinds (legalbites.in)
xxvii
Relation between Possession and Ownership (legalbites.in)
xxviii
What is Liability and what are Different Kinds/ Types of
Liability - SRD Law Notes

(For rest concepts written notes)