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WHAT IS ADMINISTRATION OF JUSTICE? EXPLAIN ITS KINDS.

DISTINGUISH BETWEEN CIVIL AND CRIMINAL JUSTICE.
INTRODUCTION:-Administration of Justice:- According to Salmond :
-The administration of justice implies the maintenance of right within a
political community by civilized substitute for the primitive practice of
private vengeance and violent self-help. This has been criticized on the
ground that it is not the force of the state alone that secures the
obedience of law. There are a number of other factors such as the
social sanctions, habit and convenience which help in the obedience of
law. In civilized societies, obedience to law becomes a matter of habit
and in very rare cases the force of the state is used to secure it
According to Austin: Law is the aggregate of rule set by men as
politically superior, or sovereign, to men as politically subject. It means
law is command of sovereign. In his definition Command, duty and
sanction are the three elements of law.
 The fundamental difference between the definitions of the two jurists is
that whereas in the definition of Austin, the central point of law is
sovereign, in the definition of Salmond, the central point is Court. In
fact, both the definitions are not perfect and present two aspects of law.
Salmond : Points out that men do-not have one reason in them and
each is moved by his own interest and passions. The only alternative is
one power over men. Men is by nature a fighting animal and force is the
ultima ratio of all mankind. As Hobbes puts it without a common power
to keep them all in awe, it is not possible for individuals o live in society.
Without it injustice is unchecked and triumphant and the life of the
people is solitary, poor, nasty, brutish and short. Salmond says however
orderly a society may be, the element of force is always present and
operative. It may become latent but still exists.
KINDS OF ADMINISTRATION OF JUSTICE
The administrative of justice may be divided into two parts:-
1) Civil.
2) Criminal.
1. Administration of Civil Justice: The wrongs which are the subject-
matter of civil proceedings are called civil wrongs. The rights enforced
by civil proceedings are of two kinds (1) Primary and (2) Sanctioning or
remedial rights. Primary right are those rights which exists as such and
do not have their source in some wrong. Sanctioning or remedial rights
are those which come in to existence after the violation of the primary
rights. The object of the civil administration of justice is to ascertain the
rights of the parties and the party who suffers from the breach of such
rights is to be helped by way of paying damages or getting injunction,
restitution and specific performance of contract etc.
2. Administration of Criminal Justice:- The object of the criminal justice
is to determine the crime of a person who is charged with the doing of
an offence. The criminal court after proving that the offender is guilty of
the offence charged awards him the punishment of fine, imprisonment
as prescribed by criminal law. A convicted person is awarded physical
pain. Thus the main purpose of the criminal justice is to punish the
wrongdoer.
DIFFERENCE BETWEEN CIVIL AND CRIMINAL ADMINISTRATION
OF JUSTICE
Civil Administration of Justice
In the civil case the suit is Filed in the civil court. Criminal
Administration of Justice
In the criminal cases the proceedings Is filed in the criminal court.
The main remedy in civil Cases is damages. The main remedy in
criminal cases is to Punish the offender.
In the civil cases, the court Follows the procedure Prescribed in Civil
Procedure Code. In the criminal cases, the court follows the
procedure laid down in criminal Procedure Code.
In civil cases the action is taken By the injured party and the Suit is
established by himself By giving evidence. In criminal cases the
proceeding is taken by the state and the injured party is called out as a
witness by the state.

2 What is Law? Discuss. Definition given by various jurists?

INTRODUCTION: It is easier to explain than to define it. It means that
things are easy to explain than to define it. Definition is very necessary
for the study of the subject, because the beginning and in one sense it
ends is also its definition. To give a definition of Law is comparatively a
hard task due to many reasons :
1. In Hindu :- Dharma
2. In France :- Droit
3. In Rome :- Jur.
4. In Muslim :- Hukma
All these above words conveys different meaning. And we can say that a
definition which contain all the above meaning and all elements would
be a good definition of law. Endlly definition given by every person is
always different. Because definition given by a lawyer a philosopher, a
student or a lecturer is always different. A definition which doesnt cover
all these elements would be an in-perfect definition.
DEFINITION OF LAW:- The word, Law has been taken from the latin
word which means The body of Rules various scholars has attempted
to define this term according to their own prospective. Some of them are
as under:-
According to Roman Scholars:- The law is concerned with the
parameters which is right or wrong, fair and unfair.
ULPIAN:- The famous Roman scholars and a Juries, he defined the
term , Law as standard of what is just and unjust.
According to Salmond:- The law is the body of principals recognised and
applied by the state in the administration of justice.
According to Positivist Definition :- They are known as a modern
thinkers and they propounded a new school in the Law namely,
Analytical School. This school is also known as a scientific school.
Benthem, Austin and Kelson define the term of Law in the following
manners:-
1. AUSTIN:- Austin is the father of English Jurisprudence and
according to him, Law is the command of sovereign There are three
elements of law according to Austin :
a) Command )
b) Duty ) = LAW
c) Sanction )
According to him every law have a command and due to this
command we have the duty to obey this command and if we dont obey
this duty then there is a sanction.
2. As per Benthem:- The law is the violaion of some declarations by
the political head with utiity ensuring maximum happiness of he
maximum people in the society. Benthm concept of law revolves around
individual utilitarianism and its concern with the theory of pain and
pleasure, which means that the purpose of Law to reduce the pain and
harms and pleasure in the society.
3. According to Kelson:- The law is depsycholigically command. He is
concern with those commands which purely rest upon the formal
expression of law.
3. Sociological Definition: The sociological approach is not a single
approach but it includes a number of thoughts, but all these thought
related to society, that is why heading is given them to sociological. And
we shall discuss some of true definitions :-
DUGUID :- According to him the law is a set of sosme formal norms
aiming an creation of soliditary in society.
IHERING :- According to Ihering the Law is a form of guarantees of the
conditions of life in society which are assured by the states power of
constraint.
EHRLICH :- Ehrlich lays down, that the law consists of norms coverings
social life. But only the living Law is the actual law.
ROSCUEPOUND :- According to him Law is an instrument for
balancing, conflict or completing interest of people in the society.
REQUIREMENTS FOR LAW
The followings are some requirements for the definitions of law :-
i) Before the law there is a State.
ii) Before the State there must be a society.
iii) State & society develop a legal order to be followed.
iv) And finally law always has a purpose.
CONCLUSION:-
In end we can say that law is the important and necessary part of the
state and developing the human beings. Law gives rights and duties to
human beings. And law is the essential part of a State. Law is an
instrument of social control as well as social change.

3 Define Right and discuss the essential elements of legal right. OR

What is a Legal Right? Discuss the characteristics of a legal right.
INTRODUCTION: Right generally means an interest or facility or a
privilege or immunity or a freedom. In this way right for the purpose of
jurisprudence is called legal right. Austin in his theory has separated the
subject matter of jurisprudence from morality or materiality. He gave the
concept of positive law. So here also right means positive law right only,
which is term of legal right. Legal right is recognised by law. It is
different from moral right. Moral right if violated is called moral wrong.
The violatin of natural right is called natural wrong. But these wrongs
are not remedial under law while if a legal right is violated then it will be
legal wrong which is remedial under law. The different jurists have
defined legal right in different ways:- According to Austin : Right is a
faculty which resides in a determinate party or parties by virtue of a
given law and which avails against a party or parties other than the party
or parties in whom it resides. According to Salmond :- Right is an
interest recognised and protected by the rule of right. Here rule of right
means rule of law or law of country. When an interest of a person is
protected by the rule of law then it is called right. Salmond definition
involves two points, firstly that right is an interest and secondly it is
protected by rule of right. It means that it relates to his (person) interest
i.e., life liberty, heath and reputation etc. Grey has criticised the interest
theory propounded by Salmond, Ihering and Heck and he has supported
the view that right is not an interest but that means by which the interest
is secured. According to Holland, right is as a capacity residing in one
man of controlling, with the assent and assistance of the state the action
of others.
According to Paton : That legal right is that it should be enforceable by
the legal process of the state. He however says that there are three
exceptions to this rule :-
1. It is not necessary that the state should always necessarily enforce
all the legal rights.
2. There are certain rights which recognised by law but not enforced
by it for example : In a time barred debt, the right of the creditor to
recover the debt is an imperfect right
3. There are certain laws which do not confer right of enforcement to
the courts, for example : International Court of Justice has no power to
compel enforcement of its decrees under International Law.
THEORIS OF RIGHT :- There are two theories of right :
1. WILL THEORY : This theory is based upon the will of human
beings. It says that a right reflects the inner will of a human being.
Austin, Holland, Halmes and Dov recognised this theory of right.
According to them a person wants o remain in the world freely and
according to his own choice because a man is born free.
2. Interest Theory:- This theory says that interest is the base of the
right. It is only interest which is recognised by law. This theory reflects
the external nature of the human beings. Supporter of this theory say
that there are many interests in the world. These interest which are
protected and recognised by law are called right.
ELEMENTS OF LEGAL RIGHT:- Following are the elements of Rights
:-
1. Subject: here means a person who has right. So there must be a
person for rights
2. Act of Forbearance :- Right means some standard of action
permitted by law. In a right either an act is done or an act is forbidden.
This is also called as content of right.
3. Object:- There must be a object upon which the right is exercised.
Mainly there are three essential elements of right e.g. Lives in a house.
Here : (i) A has the right to live in the house. (ii) A is subject, house is
object and (iii) His living in the house is act content. But some writers
give some more elements of right.
4. Correlative duty: For right there must be a correlative duty. In the
above example A has the right to live in the house but other persons
have correlative duty not to disturb him. Almost all jurists agree on the
point because one cannot exists without the other. Here Austin is not
agree to this He says that the duty may be divided into two kinds i.e. (1)
Absolute and (ii) Relative.
5. Title: Salmond gives one more element of rights in the form of title.
He says that a right has got also a title. Title may be in the form of the
owner or co-owner or mortgager or leaser or buyer etc.
ILLUSTRATION: If, A buys a piece of land from B. A is the subject or
owner of the right so required. The person bound by the co-relative duty
is persons in general because a right of this kind avails against the world
at large. The right consists in non-interference with the purchasers
exclusive use of the land.
KINDS OF RIGHTS :- The following are the kinds of rights :-
1. Primary right and secondary right : Primary right is an independent
right while secondary right means dependent right. They are also called
as principal right and helping right or remedial right. ILLUSTRATION:- A
has right of reputation which is his primary and independent right. If any
person defames A then A has the right of damages against the defamer.
This right of damages is called secondary right or remedial right.
2. Positive and Negative Right:- Positive right is linked with negative
and negative right is linked with duty. Positive right permits to do an act
while negative right prohibit doing an act.
ILLUSTRATION:- A has the right of reputation. This is his positive
right and any person should not defame him. The defaming his
reputation called negative right.
3. Right Rem and Personam:- Right in Rem means right against the
whole world while right in persosnam means right against a definite
person.
ILLUSTRATION: A has not to be harmed by any person. This is right in
rem. On the other hand, A has entered into a contract with B and B
has broken +ve contract. A can enforce this right against B. This is
known as right in personam.
1. LEGAL AND EUITABLE RIGHT (NATUAL JUSTICE):- The division
of right has its origin in England. Legal ight is recognised by Law. While
equitable right has been recognised by natural justice. In England there
were two types of courts: (i) Legal courts (ii) Chancery courts
Chancery Courts recognised the conquerable rights on the basis of
justice, equity and good conscience.
4. Vested & Contingents Right:- These rights is of permanent nature
that depends upon the happening of an uncertain event. Thus
contingents right becomes full right only when such uncertain events
happen according to the condition.
5. Proprietary and Personal Right:- Proprietary rights which are
concerned with property. A person possessing any property has the
proprietary right over it, and personal right means the right related with a
person or a body. Every person has a status. He should not be injured or
defamed. If any person injures or defames another person then the
wrong doer infringes the personal right of a person.
6. Perfect or Imperfect Right:- These rights which are enforceable by
law are perfect and which law does not enforceable are imperfect rights.
7. Right of Re-propia and Right in re-alena:- Right in re-propia means
the right in ones own thing whereas right in re-aliena means the right in
the things of others.
4 Law is the command of sovereign comment. Critically examine the
main features of Analytical School? OR
Discuss the essential characteristics of the Analytical School?
INTRODUCTION : The main features/essential characteristics of
Analytical School of Jurisprudence are as under:- The jurists of
analytical school consider that the most important aspect of law is its
relation to the State Law is treated as an imperative or command
emanating from the state. For this very reason this school is known as
the Imperative school.
The exponents of this school are concerned neither with the
past nor with the future of law but with law as it exists, i.e. as it is
(positus).For this reason this school is termed the positive school. Its
founder is John Austin who was the professor of jurisprudence in the
University of London.
He is also considered as the father of English jurisprudence. He studied
the Roman Law in Germany. There he was that Roman Law is very
systematic and scientific whereas English Law is not systematic and
scientific. So he tried to make English law in well manner. For this
purpose he wrote a book Province of English Jurisprudence. In this
book he difined English law and made it in a systematic way.
Austin said that only positive law is the subject matter of
jurisprudence. He separated both the morals and the religion from the
definition of the law. Prior to Austin the law was based upon customs
and morals but Austin reduced all things from the definition of law. He
divided law into two parts :
(i) Law propriety so called (II) Law impropriety so called.
It further divided into two parts :-
(1) Law of God (Divine Law) (II) Law of Men ( Human Law)
Law of God is also called divine law. It is a law set by God for human
beings on earth. Men also make law of men is made by men, so it is
called human Law. This law makes a relationship between persons and
the Law. This law is imposed upon persons and is made by persons.
Human law is further divided into two parts :-
(I) Positive Law (II) Positive Moral Law
Positive Law is main subject of jurisprudence. This classification can be
seen as under :-

LAW

(A) Law propriety so called (b) Law impropriety so

called

A.1) Law of God A.2) Law of Men

A.2.i) Positive Law A.2.ii) Positive moral Law

Law of analogy law by Metaphor

Law impropriety so called:- There are certain laws, which are called
impropriety laws e.g. Divine Law, Moral Law and religious Law. But his
law is not the subject of jurisprudence. This law is concerned only with
the administrations of jurisprudence. The law is the subject matter of
jurisprudence.
Analytical school of jurisprudence deals with the following matter:-
(I) An Analysis of the conception of civil law.
(II) The study of various relations between civil law and other forms of
law.
(III) An inquiry into the scientific arrangement of law.
(IV) An account of legal sources from which the law proceeds.
(V) The study of the theory of liability.
(VI) The study of the conception of legal rights and duties.
(VII) To investigate such legal concepts as property, contracts, persons,
acts and intention etc.
DEFINITION OF THE LAW
Austin has defined the law is hiss Command Theory. He says that,
Law is the command of sovereign. Sovereign here means a politically
superior body or a determinate person or determinate body of persons
like king of council. The command of these persons shall be the law in
the country. This law must be obeyed by certain persons. If it is not
obeyed hen the order of these persons shall not be law. It means there
must be politically inferior persons. If the command is disobeyed then
the political superior should have the power to punish, those persons
who have disobeyed the law.
CHARACTERISTICS OF COMMAND THEORY
From the above facts we find that the following characteristics of
Analytical School :-
1. Sovereign (II) Command (III) Duty (IV) Sanction Power.
SOVEREIGN: Means the political superior person or a determinate
person or body of person or intelligent persons. This may be compared
with the kind or the head of state in monarchy system and parliament in
democracy system.
COMMAND:- There must be some order of the Sovereign. This order
may be oral or written. The Sovereign which is followed by force, is
called command.
DUTY:- This command must be followed by some persons, it means the
political inferior persons who are under the control of Sovereign, are
under a Duty to follow the order of the Sovereign.
SANCTION:- There must be sanction or the power of force behind the
command of Sovereign and it there is no force or sanction then such
command shall not be law. The sovereign must have power to punish
those who do not obey this command. In this way the above mentioned
things are essential then it will be the law. But Austin excluded some
commands from the concept of the law. These are :-
(I) Explanatory Law :- If there is a command for the explanation of
already existed law command shall not be the law.
(II) The Repeal Law : I there is a command for the repealing of already
existed law then the second command shall not be law.
AUSTIN LAW (AUSINS METHOD) Austin adopted analytical method
which excluded all types of morals and religion from Law. His school is
also called analytical school or imperative school. Imperative means
force behind law.
CRITICISM OF ANALYICAL SCHOOL
Various writers have criticised the command theory of Austin on the
following ground :
1. Customs ignored:- Analytical school is based upon the law.
According to Austin the law does not include customs but we see that
customs are a very important part of the society. There were customs
by which the society and later on state came into existence. In state
also customs played an important role in the administration of justice.
Even in the modern times the customs play an important role in the
formation of law. So we cannot ignore customs from law.
2. Precedents ignored:- Precedent means the decisions of the court,
which are also called as judge made laws. Judge made laws because
these laws were not the command of the Sovereign. These laws were
not enforceable at that time, so he excluded these laws from his concept
of the law.
3. Conventions Ignored:-There are certain conventions or methods,
which are observed or followed by the coming generation. These
conventions or methods later on take the form of law. The become law
afterwards by their regular observance. In England the base of English
Law is conventions, which is very popular in the World. So we cannot
ignore conventions. But Austin did not include conventions in his
concept of law.
4. International Law Ignored:- Austin did not include international law
in his law. According to his law there is no Sovereign for enforcing the
international law. But in modern days we cannot exclude international
law from the field of law because it plays an important role in
maintaining peace and society at international level. In other words it is
also a form of municipal law of civil law.
5. Command Theory is not suitable:- It is not easy to understand the
Commands Theory for common persons. It is not necessary that all
should be enforceable or all common person should be considered as
law. Only those commands which are related with law and order, should
be law. It is difficult to separate those commands from others by the
common people or persons. So this theory is not suitable in modern
times. It is also an artificial theory haveing no sense in the modern
world.
6. Only Power Is Not Necessary:- According to the Command
Theory, law can be imposed only with the help of power, But we have
the result of the tyrants or forced rules which were thrown away by the
people of French Revolution, of Panamaeto. Law can be enforced even
without power, it they are suitable to the society.
7. Moral Ignored:- The Command Theory has also excluded morals
from the field of law. But we have observed that morals have also an
important role in the formation of law. We cannot ignore morals from law
because laws are meant for the society and such laws must be
according to the feelings of society. The feelings of society are based
upon morals. So we cant ignore morals from the field of law.
CONCLUSON :-In this way he theory of command has been criticised
and which is not considered as suitable in the modern time. But we also
cant ignore the contribution of Austin for giving he meaning of law in a
systematic way. He give the concept of law in scientific manner. This
views became the base for the coming writers, jurists and philosophers.
So we can say that Austin contributed a lot in the field of jurisprudence.

5 Define and distinguish law and morals. Up to what extent morals help
in the development of law.
Introduction:- Play an important role in the development of law. In the
ancient society there was no difference between law and morals. The
Vedas and suteras which are the main ancient sources of law are based
upon morals. In the western society also the position was the same. The
legal system of Greek was also based upon the doctrine of natural
rights, which was in fact founded upon morals. So the Roman law also
recognised the doctrine of natural law, which was founded upon morals.
In the middle period also morals were the basis of law. In the 17th and
18th centuries natural law theories become very popular which were
also based upon morals. However in modern times it was only Austin
who discarded morals from law. He said that law is a command of
sovereign. But after him there came the Historical School that
recognised morals as the part of law.
DIFFERENCE BETWEEN LAW AND MORALS
When the Austin did not give any place to morals in law then there came
a question of the difference between law and morals. Later on the courts
tried to make difference between law and morals. In the modern times
there is clear difference between law and morals. In every developed
and civilized society the following are the differences between morals
and laws:-
MORALS LAWS
1.The morals are concerned with individual and are the laid down rules
for the moulding of his character.

2.Morals are mainly concerned with the internal conduct of the nature of
a person.
3.The morals are an end in themselves.
4. The observance of morals is a matter of individuals conscience.
5. Morals are considered to be universal in nature and value. 1. The
laws are mainly concerned with the society as a whole and lay down the
rules for relationship of individual with each other and with the state.
2. Law is concerned with the external conduct of the individuals.
3. Laws are meant by which the evils ends. The justice is achieved.

4 The observance of law is concerned with duty towards the state.

5 Law is concerned only with a particular state and society which differ
from place to place & from time to time.
RELATIONSHIP BETWEEN LAW & MORALS
In the ancient society there was no difference between laws and morals,
but in modern times various theories of law separate morals from laws
so many differences as pointed out above came into picture. In spite of
these differences there is a clear relationship between law and morals.
For this purpose it can be noticed from the following three points :-
1. Morals as the basis of law:- In the ancient society morals were the
basis of all laws. All the rules originate from the common sources i.e.
morals. The reason behind them was in the form of supernatural fear.
The state picked up those rules which were necessary for the society of
the state.
The state put its own sanctions behind their rules and enforced them
and these rules were called laws. The rules for which the state could not
ensure their observance wee known as morals. Thus laws and morals
have common origin. We cannot totally separate law from morals.
Queen v/s Dudley: It was held that moral are the basis of law on the
ground of morality, it was not necessary to kill the boy for saving their
lives. One cannot take the law into ones own hands. The rule is that
none has the power/right to take anothers life to save his own.
2. Morals as the list of law:- It has been argued that the law must
conform to morals. It means the law must be based upon morals and it
should not be against morals. The Roman law was based upon natural
law and Christian morals and principles say that any law that is against
morals is invalid. The natural law theories were enforcing which were
also according to morals.
In the modern times the laws which are not in conformity with morals
are not good laws. However in practice to a great extent law conforms
to morals. Laws cannot depart from morals due to many reasons. The
conformity of law with morals is a very important factor even in the
modern times.
3. Morals as the end of Law:- Sometimes morals are considered as the
end f law. Justice in its popular sense is based upon morals. The word
used for law conveys an idea of justice and morals in the same area of
law. Sociological school says that law always has a purpose. Law is a
means to get the end. This aim of law is to secure social test of law. This
can be done properly in the contest of socially recognize values which
are closely related to morals. Thus ultimately morals become the end of
law. In India the legal system is engaged from the personal laws and
local customs. In addition to this there are certain other factors like
public opinion, political, ethical, social and economical ideas which are
directly or indirectly under the influence law. CONCUSION:- So morals
also have influence to a great extent in the development of law. Morals
also check the arbitrary powers of the legislature. All human conduct
and social relations cannot be regulated and governed only by law. A
considerable number of them are regulated by morals. Thus we can say
that the morals are the very important factor in the development of law.
Morals are basis of law.
6 Professor Hart claims of make a fresh start in legal theory. Discuss.
INTRODUCTION:- Hart is one of the great jurists of that time. He
belongs to analytical school. HLA Hart was the Principal and Professor
in Brasenose College Oxford His theory about the law named as
concept of Law. He talks about the realty. His theory mainly based on
primary and secondary rules and also based on the relationship
between law and society. His theory described about two words i.e. Pre-
legal world and Legal world.
DEFINITION AND MEANING: Sir HLA Hart define Law, that law is the
system of rules, a union of primary and secondary rules. He means to
say that law is the system of rules and these rules are primary which are
pre-legal rules and secondary which are legal rules and the main based
of his theory on the relationship between Law and Society.
Body : Sir HLA Hart theory talks about the two words. These words
are:-
Concept of Law

Pre-legal world Legal

world

No legislature Rule of recognitaion

No executive Rule of Change
No court Rule of Adjustice

1. Pre-Legal World :- This pre legal world belongs to old age.

According to Sir, HLA Hart pre legal world there was primitive society.
And in this society there was no legislature which can make the rules.
There was no executive also which can change the rules besides this
there was no court also to decide the disputes. In the primitive society
there were three defects which are as under :-
2 Un-certainty :- Since there was no Parliament in the primitive
society which causes the un-certainty in the law.
3 Static character:- In the primitive society there were customs and
these customs were not changed. It means there have static character.
4 Inefficiency :- In the primitive society there were no power of
Jurisdiction. It means that there were no courts followed by the people.
2. Legal World :- This legal world belongs to modern age. According
to Sir HLA Hart in the legal world there are modern society. Because of
modern society there are rules of recognition which means that there is
a Parliament/State Executive. The function of the Executive to change
or to amend the rules. In modern age there are courts which decides the
disputes. Judges applies the earlier laws in deciding the disputes.
These rules/laws are the secondary rules. Thus we can say that Law is
the union of Primary and Secondary rules. In other words it can be said
that the Law is the journey of rules.
RELEVANCY OF HLA HARTS THEORY
Sir HLA Harts theory concept of Law is the most important theory of
analytical school. Because this theory tells us about the old age and for
the modern age. In the old age there were primitive society which did
not have any legislature, executive and court. Therefore only custom
and usages which were not allowed to change them by any person.
The theory of concept of law tells us about the legal world. In the
legal world there is a legislature which makes the rules and these rules
are changed or amended by the executive when it necessary. There are
courts which apply the rules on party. So we can say that in modern age
the law is certain not static in character. Sir HLA Hart also gives the
place of Morality in his theory because the moral have an important role
in every legal world and these morals are not changed by passing any
Act. We can say that Sir HLA Hart theory, Concept of Law has the
most important place in the theory of Analytical School.
CONCLUSIION:- Sir, HLA Hart theory Concept of Law have no
conclusion because this theory talks about both the pre-legal world and
the legal world which updates and tells us that how the law comes. So
we can opined that such best and usable theory needs no conclusion as
it has its self conclusion.

7 Define Natural Law theory. Also explain its relevancies in the Modern
times.
INTRODUCTION: The Natural Law school is not independent school. It
has deep concern with historical, analytical school. The main contents of
this theory is that it has been interpreted differently at the different times
depending on the needs of the developing legal thought but the greatest
attribute of the Natural la w theory is its adaptability to meet new
challenges of the transient society.
According to the pro pounder of this theory says that, Law is a product
of the straight thinking of human mind. According to Socrates, he duely
assert it that the positivist authority should be obeyed but not blindly and
it ought to be subject to criticism if deserve so. Plato: He was in the view
that each individual be given best suitable role by reason of his capacity
and abilities. Thomas Acquinas (Roman Thinker):- He means that
Natural Law is a part of Divine Law. This part is applied by human
beings to govern their affairs and relations. Thomas Hobbes (Roman
Thinker) :- According to him that there should be an absolute authority
which should govern and control the affairs of human beings in the
reciprocal transmission of concerned with every span of life. Rousseau
(Roman Thiner) : He held that there two types of will:1. The will of
individual and 2. General will. The authority through his rule must
respect the both and in the administration of rule making process. These
will should be reflected.
Definition:- From the jurisprudence point of view Natural law is not a
body of actual enacted or interpreted law enforced by courts. It is in fact
a way of looking at things and a humanistic approach of Judges and
Jurists. It embodies within it a host of ideals such as morality, justice,
reason, good conduct, freedom, equality, liberty, ethics and so on. The
phrase Natural Law has a flexible meaning. The chief characteristic
feature of natural law may be briefly stated as follows :-
i) It is basically a priori method which is different from empirical
method. It used to stress upon a cause and effect relationship between
the facts on the verge of logic.
ii) It symbolizes physical law of nature based on moral ideals which
has universal applicability at all places and times.
iii) It has often been used either to defend a change or to maintain
status quo according to needs of the time.
iv) The concept of Rule of law in England and India and due process
in USA are essentially based on Natural Law philosophy.
MODEN NATURAL LAW THEORIS:- The following are the three main
thinker who contribute to the Modern Natural Law theories:-
1. Stammler:- He was much more influence by Positive Law. He says
that all positive law is an attempt at just law with regard to will and
purpose of the law maker should have the proper understanding and
knowledge of actual social world or social reality. Various a time in his
concept he inter changeable used the word will with the purpose and he
conclude that it is the will of the people which enable them to secure
their purpose under social reorganisation.
2. KOHLER:- His thoughts were influenced by Hegal. According to
him Law is standard of conduct which is consequence of in the impulse
of human being that urges him towards a reasonable form of life. It also
derives its validity from the moral and ethical standard in society. So that
he laid down stress upon moral and cultural development of society.
3. Finnis: Finnis also is a very famous jurists of the present century.
He has given the definition and place to natural law. According to finnis
Natural Law is the set of principles of practical reasonableness in
ordinary human life and human community. He sets up the proposition
that there are certain basic goods for human being. Fennis lists them as
under :-
i) Life:- The term life signifies every aspect of vitality in good shape
for self determination.
ii) Knowledge: Knowledge is a process of knowing of unknown with
the help of sense.
iii) Sociability of Friendship:- Doing something best for the sake of
ones friends purposes, ones well being.
iv) Role:- It is the expression of a status of human being in practical
form such role is protected and recognised by law.
v) Religion:- Question of the origins of cosmic order and of human
freedom and reason expressed thus this view is a good that even an
ethicist can value.
vi) Practical reasonableness :- This is the logic expression of the ideas
and decision in practical circumstances. This the measurement of just or
unjust in a real situation.
Despite the merits of Natural Law philosophy it has been criticized for its
weakness on the following grounds. In other words the demerits of the
Natural Law may be read as follows :-
i) Moral proposition i.e. ought to be may not always necessarily
conform to the needs of the society.
ii) The concept of morality is a varying content changing from place to
place, therefore it would be futile to think of universal applicability of law.
iii) The rules of morality embodied in natural law are not amendable to
changes but legal rules do need a change with changing of the society.
iv) Legal disputes may be settled by law courts but disputes relating to
moral and law of nature cannot be subjected to judicial scrutiny.
CONCLUSION:-The brief survey of the theories of Natural law reveals
that its concept has been changing from time to time.

8 Explain the importance of Legislation as source of Law. OR

Distinguish between supreme and subordinate legislation?
INTRODUCTION:- Legislation means the process of law making. This
law making power is vested in the legislation body which is sovereign
body. It is called Parliament at the centre level and legislative assembly
at the state level. Legislation is the most important and modern source
of Law. This source has played an important role in the development of
modern law and also different from custom and precedent etc.
LEGISLATION AS A SOURCE OF LAW:- The importance of legislation
starts from the beginning of analytical school. This school ignored the
importance of custom and gave the stress on command of sovereign
which can make law only through legislation. This school also ignored
the judge made law. About custom they say that the custom are not law
but they are the source of law.
HISTORICAL SCHOOL:- It gives no importance to the legislation rather
gives more importance to custom. According to them the function of law
in only to specify and to correct the custom into law whereas in the
modern times the importance of legislation has considerably been
increased. With the coming of existence of the State the legislation has
also been come into existence and become most important source of
law. The scope of legislation has become very wide in the modern times.
KINDS OF LEGISLATION:- There are two kinds of the legislation :-
1. Supreme Legislation:- It has the powers of making law and is known
as supreme legislation in each country. This power is vested in
sovereign body in India i.e. Parliament at the centre and legislation in
the State.
2. Subordinate Legislation: It is inferior from supreme legislation and is
indirect legislation. It takes power to make law indirectly from
Parliament, who gave him power to make law that is why is called
subordinate legislation authority. It is further divided into the following
parts :-
i) Autonomous Laws : A group of persons for making law is known as
autonomous law and body i.e University or Boards.
ii) Judicial Rule :- means the rules made by judicial body under power
owed from supreme authority i.e. High courts or supreme court etc.
iii) Local Law: means law made by local bodies under the control of SC
i.e Zila Parishad, Municipal Corporation.
iv) Colonial Law: It is for those countries who are under the control of
any other country can make laws with the permission that country.
Executive Law:- The law and the rule can be made by the executive
body in the State under the power conferred by the Sovereign/
Parliament which is also known as delegated legislation. It includes the
following origins :
I) Legislation:- The legislation is the super power to make law for a
country.
II) Executive:-The executive body of the nation is to imposes law in
the country.
III) Judiciary:- The Judiciary is to explain and implies the law so
passed.
Parliament in India delegates its laws making power to the executive
body and this power is called legislated or delegated legislation.
Many reform acts were handing power of making reforms,
controlling of employment, development of education. In 20th century
some important matters were given to delegated legislation to restrict
the State to interfere in the daily life of the citizens.
CRITICISM:- Many of the writers has criticized this power because it
gives much power to the executive body and administration body. The
legislation has passed by facing the complicated problems in the
constitution. There were some supporters also who were in the favor of
this delegation of power.
REASONS FOR DELEGATED LEGISLATION
i) Lack of Time:The parliament has the shortage of time because of a
Public welfare state. It has to pay much time towards national problems.
ii) Technicality of Matters:- With the progress of society the things have
become more complicated and technical. Therefore the policy is made
by the Parliament and the imposing matter is left on the masters of it.
iii) Flexibility: Law should be flexible and according to the need &
conditions of the Public along-with the local matters which are different
from area to area, So keeping in view of this reason the power is
handed over to the executive.
There are some dangers in delegations of this power:-
i) The executive body may uses the more powers than the powers
delegated by the Parliament. (ii) The Parliament has no time to examine
the rules passed by the executive under delegated legislation.
In India there is a Parliament form of legislation and it is a welfare state
and the Parliament cannot go aside from the constitution. Any cut
against the constitution is void. The Main power of delegated
legislation & CONCLUSION is :
Power of facing an act into operation. Power to apply the Act.
Power to increase or to decrease the scope of the Act. There is a
parliamentary as well as judiciary control over delegated legislation. This
power in India has also on constitutional basis.

9 Discuss the nature and scope of Jurisprudence. What is the

importance of this subject in the study of law? OR Jurisprudence is the
eye of law.
INTRODUCTION :- Jurisprudence in its nature is entirely a difference
subject from other social science. The reason for this is that it is not
codified but a growing and dynamic subject having no limitation on itself.
Its inquiry system is of different status from other subjects. Every jurist
does not base his study on the rules made but tries to understand their
utility after due deliberation Thus the jurisprudence has no limited scope
being a growing subject. There is difference of opinion about the nature
of jurisprudence. It is called both art and science. But to call it science
would be more proper and useful. The reasons for this is that just as in
science we draw conclusions after Making a systematic study by
investing new methods. In the same way jurisprudence is concerned
with the fundamental principles of law systematic and scientific study
their methods.
Scope of Jurisprudence:- According to justice P.B.Mukherjee: ,
Jurisprudence is both an intellectual and idealistic abstraction as well as
behavioural study of man in society. It includes political, social,
economic and cultural ideas. It covers that study of man in relation to
state and society.
Jurisprudence involves certain types of investigations into law, and
investigation an abstract, general and theoretical nature which seeks to
lay the bare essential principles of law and legal systems.
Salmond observed: In jurisprudence we are not concerned to derive
rules from authority and apply them to problem, we are concerned rather
to reflect on the nature of legal rules, on the underlying meaning of legal
concepts and on the essential features of legal system. It therefore
follows that jurisprudence comprises philosophy of law and its object is
not to discover new rules but to reflect on the rules already known.
CONTENTS OF JURISPRUDENCE:- The following are the contents of
jurisprudence:-
i) Sources It is true that the basic features of a legal system are
mainly to be found in its authoritative sources and the nature and
working of the legal authority behind these sources. Under this head
matters such as custom, legislation, precedent as a sources of law, pros
and cons of codification of laws, methods of judicial interpretation and
reasoning, an inquiry into the administration of justice etc., are included
for study.
ii) Legal Concepts :- Jurisprudence includes the analysis of legal
concepts such as rights, title, property, ownership, possession,
obligations, acts, negligence, legal personality and related issues.
Although all these concepts are equally studied in the ordinary branches
of law, but since each of them functions in several different branches of
law, jurisprudence tries to build a more comprehensive picture of each
concept as a whole.
iii) LEGAL THEORY :- Legal theory is concerned with law as it exists
and functions in the society and the manner in which law is created and
enforced as also the influence of social opinion and law on each other. It
is therefore necessary that while analysing legal concepts, and effort
should be made to present them in the background of social
developments and changing economic and political attitudes.
UTILITY OR IMPORTANCE OF JURISPRUDENCE
It is often said that jurisprudence being an abstract and theoretical
subject, is not of any practical use. But it is not correct to say so. Its
utility is as under :-
1. Salmond pointed out that jurisprudence has its own intrinsic
interest like and other subject of serious scholarship, likewise the writer
on jurisprudence may be impelled to his subject by its intrinsic interest.
The legal researches on jurisprudence may well have their effect on
contemporary socio-political thought and at the same time may
themselves be influenced by these ideologies.
2. Jurisprudence also has its practical applicability. In other words it
serves to render the complexities of law more manageable and rational
and in this way theory can help to improve practice in the seats of law.
3. Jurisprudence has great educational value. The logical analysis of
legal concepts widens the outlook of lawyers and sharpens their logical
technique. It helps them in shading aside their rigidity and formalism and
trains them to concentrate or social realities and the functional aspects
of law. It is not the form of law but the social function of law which has
relevance in modern jurisprudence. For instance, a proper
understanding of law of contract may perhaps require some knowledge
of economic and economic theory or a proper grasp of criminal law may
need some knowledge of criminology and psychiatry and perhaps also
of sociology.
4. Commenting on the significance and utility of jurisprudence :
Holland observed, the ever renewed complexity of human relations call
for an increasing complexity of legal details, till a merely empirical
knowledge of law becomes impossible. Thus jurisprudence throws light
on the basic ideas and the fundamental principles of law in a given
society. This why it has been characterised as The eye of law.
5. Jurisprudence helps the Judges and the Lawyers in ascertaining
the true meaning of the laws passed by he legislature by providing the of
interpretation.
6. The study of jurisprudence helps in rationalising the thinking the
students and prepares them for an upright civil life. The knowledge of
law and legal precepts also helps them to face every exigency of human
affairs boldly and courageously.
7. Jurisprudence may also be helpful o legislators who play a crucial
role in the process of law-making. The study of jurisprudence may
familiarise them with technicalities of law and legal precepts thus making
their job fairly easy as also interesting.
According to Dias the study of jurisprudence provides an opportunity for
the lawyer to bring theory and life into focus for it concerns human
thought in relation to social existence. The law should serve the purpose
of social-engineering by preserving societal values and eliminating
conflicting interests of individuals in the society.
JURISPRUDENCE IS THE EYE OF LAW:- On account of importance of
jurisprudence in the field of law it is called, The eye of Law. The eyes
are one of the most important parts of human body. Almost all human
activities and the movements of body are possible only through them.
Unless man can see anything properly, he cannot do any work. The
reason of calling jurisprudence the the eye of law is that jurisprudence
functions for law in the same manner as the eyes do in human body.
For example- the interpretation of law is a very difficult task, It cannot be
done without the help of jurisprudence. PATON in this connection says
that, Jurisprudence is a particular method of study, not the law of one
particular county but of the general notions of law itself. Whenever any
complicated problem regarding law like:-
1 How and when the law developed. 2 What is its object. 3 Whether
the law was made by people or it was due to the inspiration of some
Divine force. 4 Whether the law is a command of a sovereign or it is a
result of gradual development of civilization in society. The main function
of jurisprudence is to study the origin of law, its development and its
contribution towards society.
The matters to birth, marriages, death, succession etc., are equally
controlled through laws. It is the well known saying that, ignorance of
law is no excuse, hence it is essential to know the correct basic
principles of law which are contained only in the jurisprudence. Law is
also connected with civil life. A person who obeys laws is known as a
civilized citizen. A person who does not obey law is punished. It is
therefore necessary that all the people should have the sound
knowledge of law which is possible only with the help of jurisprudence.
 Therefore, jurisprudence, having so much importance for the society,
has rightly been called the eye of law.

10 Judges are the makers of law not discovers of law. Do you agree with
this view?
INTRODUTION:- There are two contrary theories regarding the
question as to whether Judges declare the existing law or make the law.
There are two which are as under :-
1. Theory that judges declare the law or Declaratory Theory.
2. Theory that judges make the law or legislative theory. (Law making
theory)
1. DECLARATORY THEORY :- The first theory is the declaratory theory
as described by Hall and Blackstone and they supported by Dr. carten
also.
According to the declaratory theory no new law is created by the
Judge, Courts of Justice do not make law, their province is to ascertain
and declare what the law is. Judges only discover the existing laws.
Hale enunciates declaratory theory of precedents and contends that
whilst Parliament alone legislates in the strict sense the Judges only
expound the law and their decisions are the best evidence of what law
is. The result of his theory is that the effect of the decision is
retrospective for it does not only declare what law is but what it always
has been. Nevertheless as Maine has pointed out once the Judgement
has been declared and reported we start with a new train of thought and
frequently admit that the law has been modified.
According to Lord Esher, There is in fact no such hing as Judge-
made law, for h judge do not make the law, though they frequently have
to apply the existing law to the circumstances as to which it has not
previously been authoritatively laid down that such law is applicable.
Declaratory theory is based on the fiction that the English law is an
existing something which is only declared by the Judges. This theory is
known as the theory of judicial precedent.
LAW MAKING THEORY
The second theory is that the Judges do not declare law but make the
law in the sense of manufacturing of creating entirely new law. Bentham
and Austin, have opposed the traditional view as a childish fiction and
have declared that Judges are in fact the makers and fulfill a function
very similar to that of the legislature.
Lord Becon: The new point decided by the Judges is a direct
contribution towards law-making. Professor Dicey supported this view
and gives example of English common law which has been made by the
judges which has been made by the judges through their judicial
pronouncements.
Prof. Gray : supports this law making theory and says that judges alone
are the makers of law. He discredits the declaratory theory.
Judges are without any query law-makers but their power of law
making is not un-restricted. It is strictly limited for instance they cannot
over rule a statute where the statute clearly lays down the law. The
legislative powers are restricted to the facts of case before them.
According to Salmond : Who is strong support of this view says that he
is evidently troubled in mind as to the true position of precedent. He
further says that both in law and in equity declaratory theory altogether
totally rejected.
Such cases which are not covered by existing laws the judicial
decisions created new notions and formulae new principles which were
never contemplated earlier. Supreme court over-ruled the Golak Nath
decision in Keshwanand Bharis case and laid down a new basic
structure theory and in Golak nath case the new principle of prospective
over-ruling was evolved by Judges.
RECONCILAION OF THE TWO THEORIES
The above two views about making of law by judges are not exclusive of
each other but they are rather complementary. It will be seen that
neither the purely declaratory theory nor the purely legislative theory
represents the whole truth. Judges develop the law but cannot be said
to legislate. The common law is not made but has grown and the more it
changes the more it remains the same thing.
The answer to the question whether the Judges make or
discover law much depends upon the nature of the particular legal
system. In common law system it may be stated that the Judges make
law while in other countries where is law is codified the judges only
supplement the law. It is true that custom and statutes do not render the
judges some super fulvous knowledge.

11 Explain the phrase, Law is social Engineering as propounded by

Roscoe Pound.
INTRODUCTION:- Roscoe Pound is considered to be the, American
Leader in the field of Sociological jurisprudence. He comes from
Harvard Law School and had a great academic favour. According to
him, the end of law should be to satisfy a maximum of wants with
minimum of friction. He defined law as containing the rules, principles,
conceptions and standards of conduct and decision as also the precepts
and doctrines of professional rules of art. He considers law as a means
of a developed technique and treats jurisprudence as social
engineering.
The main propositions of Roscoe Pound theory of Social Engineering
are as under:-
i) POUND CONCENTRATES ON THE FUNCTIONAL ASPECT OF
LAW:- Pound concentrates more on the functional aspect of law, that is
why some writers name has approach as functional school the law is
an ordering of conduct so as to make the goods of existence and the
means of satisfying claims go round as far as possible with the least
friction and waste.
ii) THE TASK OF LAW IS SOCIAL ENGINEERING:- He says, for
the purpose of understanding of law of today. I am content with a
picture of satisfying as much of the whole body of human wants as we
may with the least sacrifice. I am content to think of law as a social
institution to satisfy, social wants, the claims and demands involved in
the existence of civilized society.
iii) SOCIAL ENGNEERING MEANS A BALANCE BETWEEN HE
COMPETING INTEREST IN SOCIETY :- He lays down a method which
a jurist should follow for social engineering. He should study the actual
social effects of legal institution and legal doctrines, study the means of
making legal rules effective sociological study in preparation of law-
making, study of judicial method, a sociological legal history and the
importance of reasonable and just solutions of individual cases. He
himself enumerates the various interests which are to be protected by
the law. He classifies them under three heads:
i. Private Interests (ii) Public Interests (iii) Social Interests.
PRIVATE INERESTS:- Such as interest of physical integrity, reputation,
Freedom of volition and freedom of conscience. They
Are safe-guarded by law of crimes, contracts.
PUBLIC INTERESTS:- Main public interests are preservation of the
State, State as a guardian of social interests such as Administ-Ration of
trusts, charitable endowments, protection of Natural environment,
territorial waters, sea-shores, Regulation of public
employment and so on.
SOCIAL INTERESTS:- Preservation of peace, general health,
preserving of Social institutions such as religion, political and Economic
institutions, general morals, promotes Human personality, cultural and
economic life.
Pound tackled he problem of interests in term as of balancing of
individual and social interests. It is through the instrumentality of law that
these interest are sought to be balanced. Justice Cardozo remarked
that, Pound attempted to emphasize the need for judicial awareness of
the social values and interests. Roscoe Pound regarded law as a basic
tool of social engineering. How in India the society and law are acting
and reacting upon each other can be adjudged from the following
enactments passed after India became Independent:-
a. The special Marriage Act 1954 2. The Hindu Marriage Act 1955 3.
The Hindu succession Act 1956 4. The Hindu Minority and guardianship
Act 1956 5. The Hindu Adoptions and Maintenance Act 1956 6. The
Dowry Prohibition Act 1961 7. Child Marriage Restraint (Amendment
Act) 1978 8. The Consumer Protection Act 1986 9. The S.C & S.T.
(Prevention of Atrocities) Act 1989 10. Commission of Sati (Prevention)
Act 1987 11. Bonded labour(Abolition) Act- 1976
INTERESTS AS THE MAIN SUBJECT-MATTER OF LAW:- Pounds
theory is that interests are the main subject matter of law and the task of
law is the satisfaction of human wants and desires. It is the duty of law
to make a valuation interests in other words to make a selection of
socially most valuable objectives and to secure them.
To concluding the theory, Pound says that the aim of Social
Engineering is to build an efficient structure of the society as far as
possible which involves he balancing of competing interests.
CRITICISM AGAINST POUNDS THEORY :-
i. Engineering not a happy word : It suggests a mechanical
application of the principles to social needs but really the word
engineering is used by Pound metaphorically to indicate the problems
which the law has to face.
ii. Classification of interests not useful: Freidmann doubts the value of
classification of interests and the value of such classification.
iii. Ihering & Bentham concludes the theory of Pounds that, such
classifications greatly helps to make legislature as well as the teacher
and practitioner of law conscious of the principles and values involved in
any particular issue. It is an important aid in the linking of principle and
practice.
POUNDS CONTRIBUTION
Social Engineering stands on a practical and firm ground. He points out
the responsibility of the lawyer, the judge and the jurists and gives a
comprehensive picture of the scope and field of the subject.

12 What do you mean legal personality and its different theories?

Whether the following are legal person :-
1. President of India 2. Council of Ministers 3. Company 4 Un-
born child. 5. Animals.
INTRODUCTION:- Natural Persons are all human beings who are
capable of rights and duties in law, i.e. who have a status. Legal persons
are those to whom law is recognised as a person. It is either a thing or a
mass of property or group of human beings to which law attributes
personality the law confers a legal status and who thus in the eye of law
possess rights and duties as a natural person. Person is of two types :-
1. Natural Person II. Legal Person
According to Gray, A person is an entity to which rights and duties may
attributed.
According to Salmond, person is, any being to whom law regards a
capable of rights and duties.
According to Paton, Legal personality is a medium through which some
such units are created in whom rights can be vested.
In the development of society, law developed and with the
development of law the concept of legal personality come into existence.
In the ancient times there was no concept of legal personality but as the
society developed the person was recognised as the representative of
the State and a separate personality was given to him. In the due course
of time corporation and companies came into existence such companies
and corporate were given the separate personality so in this way these
bodies are now called as legal persons.
There are the following two types of persons :-
i) NATURAL PERSONS ( HUMAN PERSONS):- All human beings
are natural persons but in ancient society the slaves were not
recognised as natural persons. Similarly outlaid persons, unsound
persons were not natural persons. In Hindu Law, Manu has mentioned
some persons who were not recognised as natural persons i.e. Born
child, deaf persons, sanyasi and those who are living dead.
1. Unborn person: Unborn person is not a natural person because he
is not in existence, but a child in the womb is natural person because he
bears the rights and duties under law. Person in the womb can
represent the position after birth. In IPC the child in the womb is
considered as a natural person as soon as any of his organ will come
out from the womb.
2. If the pregnant lady gets the punishment of death sentence. She
will be hanged only after delivery.
3. ANIMALS:- In ancient time the animals were legal persons but in
modern time animals are not the legal persons but in law we find come
cases in which some animals have some rights and duties. Today also
the protection of animals some laws have been made which give rights
to the animals. These laws prohibit people to kill them. In this theory the
personality has also been confirmed.
4. Dead Person:- In law dead person has no existence as the dead
person has no personality. But in certain cases they are considered as
person in law. First if any person defames the dead person and such
defamation lowers the reputation of the family members of the dead
person, then a legal action be taken against the wrongdoer who
defamed the dead person. Secondly if any person defames the dead
body of deceased person then such person is liable for damages under
law.
ii) LEGAL PERSONS:- Legal person are artificial or imaginary beings
to whom law attributes personality by way of fiction, i.e. law gives them
rights and duties like of natural persons, e.g. King of England has two
personalities- first a human being second as head of state, being head
of state he is known as a legal person. Similarly he President of India
and the Governors of the states are legal persons.
CORPORATE PERSONALITY:- Main form of legal personality is the
corporate personality. It is of two kinds :-
1. Corporate sole: means a single body representing any state or any
other object. It is called series of the successive persons. The King of
England or the President of India is the corporate sole. They represent
only one man in successive period. The post of corporate sole remains
always alive while the human beings who sit on the post may die.
2. Corporate Aggregate :- When law confers single personality to a
group of person then it is called corporate aggregate e.g. companies are
registered according to law of societies or according to law of land.
These companies or corporations etc., are legal persons.
3. In the ancient time the Karta represented the whole Hindu family
who was considered as legal person. It is same as in Roman Society. It
is adopted in the shape of Indian companies Act 1956. The advantages
of the corporate personality because they represent an association of
persons as a single person which is helpful in business.

13 Lay down the essential features of the Historical school. Discuss the
views of Society in this regard. OR Discuss the philosophy of law as
given by Sovging under Historical School? OR Write critically note on
the following Soveging (Volkgeist Theory).
INTRODUCTION:- Jurisprudence is a subject in which the definition
nature and the sources of law are studied various writers under various
schools have defined law. Austin under Analytical school says that law
is the command of sovereign. He added only the law in the study of
jurisprudence. But under historical school Soviging says that law is the
general consciousness (Volkgeist) of the people. It means what the
common people think or behave is the base of law. Law shows the
general nature of the common people. This theory of Volkgeist is
bassed on the historical method. Soveging is the father of it. According
to Soveging, Law is the General consciousness of he people.
HISTORICAL SCHOOL
Historical School is a branch of Law, which studies law from the past
history. It says that law is based on the General Consciousness of
people. The consciousness started from the very beginning of the
society. There was no person like sovereign for the creation of law.
The law in the ancient times was based mainly upon
simple rules, regulation, custom, usages conventions etc. These things
were later on developed by the jurists and lawyers. These things were
later on converted into set form of law.
CAUSES OF COMMING OF THE HISTORICAL SCHOOL

The Historical school is just opposite to the Analytical school in

18th and 19th century, the concept of individualism came into existence.
Due to this concept the revolutions came like French revolution, Russian
revolution etc. At that time Soveging montasque, Barke, Hngo were the
writers who said that law is the general will of the people or law is based
upon common people and the feelings of the common people.
Law develops like the language and manners of the society.
So law has a natural character. Law has no universal application. It
differs from society to society and state to state. In the same way the
languages differ from society to society and locality to locality.
Montasoque has said, Law is the creation of climate, local situations
and accidents. According to Hugo hag, Law develops like language
and the manners of the society and it develops according to suitable
circumstances of the Society. The necessary thing is the acceptance
and observance by society.
According to Burke, Law is the product of the General process. In this
sense it is dynamic organ which changes and develops according to the
suitable circumstances of society.
SOVEGING :- Soveging is considered as the main expounder
or supporter of the historical school. He has given the Volkgeist theory.
According to this theory, law is based upon the general will or free will of
common people. He says that law grows with the growth of nations
increases with it and dies with the dissolution of the nations. In this way
law is national character. Consciousness of people. In other words,
according to this theory law is based will or free will of common people.
He says that law grows with the growth of nation. A law which is
suitable to one society may not be suitable to other society. In this way
law has no universal application because it based upon the local
conditions local situations, local circumstances, local customs, elements
etc. Al these things effect law and make it suitable to the society.
The main features of the Soveging theory is :-
1. Law has a national character.
2. Law is based upon the national conditions, situations,
circumstances, custom etc.
3. Law is pre historic: means law is found and is not made, the jurists
and the lawyers make it into set form.
4. Law develops like language and manner of the society. In ancient
society law was not in a natural stage or no in a set form. Later on with
the development of the society the requirements and the necessities of
the society increased. Due to this it was necessary to mould law in a set
form.
IMPORTANCE OF CUSTOMS
According to Soveging customs are more important than legislation
because customs come before legislation. In other words the customs
are the base of legislation.
CRITICISM OF SOVEGINGs THEORY
Savignys theory has been criticised on the following grounds:-
1. Inconsistency in the Theory :- Saveging asserted that the origin of
law is in the popular consciousness, and on the other hand, argued that
some of the principles of Roman law were of universal application. Thus,
it is a clear cut inconsistency in his ideas.
2. Volksgeist not the Exclusive Sources of law :- There are many
technical rules which never existed in nor has any connection with
popular consciousness.
3. Customs not Always Based on Popular Consciousness:- Many
customs are adopted due to imitation and not on the ground of their
righteousness. Sometimes customs completely opposed to each other
exist in different parts of the same country which cannot be said to be
reflecting the spirit of the whole community.
4. Savigny Ignored Other Factors That Influence Law:- The law
relating to trade unions is an outcome of a long and violent struggle
between conflicting interests within a society.
5. Many Things Unexplained :- Legal developments in various
countries show some uniformity to which he paid no heed. i.e.
6. What is national and what is universal.
7. Juristic Pessimism:- Soveging encouraged juristic pessimism.
Legislation must accord with popular consciousness. Such a view will
not find favour in modern times. No legal system would like to make
compromise with abuses. People are accustomed to it.
CONCLUSION
From the facts mentioned above we have gone behind to see the history
of the society to check that what was the position of law in the ancient
time. How and in what form law was prevailing in the society? To find
the solution of the questions the supporter of Historical school found that
law is the general consciousness of the common people or it is the free
will of common people on which law developed and converted into a set
of form of law.

14 Define Precedents? Lay down the importance of the precedents as

the source of law. In what sense they are binding? Do the judges make
law?
INRODUCTION:- Precedents literally means previous judicial decision.
The decisions of the higher courts are binding on the lower courts. The
binding force of decision is called precedent. The precedents play an
important role in the development of law. It is the second important
source of law. First source is customs and the third source is legislation.
Sometimes act may be insufficient for the case or there may be an
vacuum or any thing missing in the act. Under these circumstances the
court can apply their own mind. These independent decisions becomes
precedents which are followed later on by the same & Lower courts.
This method of decision is also called as Judge made law. The English
and American law is mostly based upon the precedents. In India Art.141
of Indian Constitution says that the decision of the higher courts shall be
binding upon the lower courts.
DEFINATION OF PRECEDENTS:- Precedents are a decision of a court
which is also called judicial decision. According to the Oxford University,
Precedents means the previous decision case given by a court
according to rules. Various writers have given the definition of
precedents is conduct of court adopted by the lower court in similar facts
and in similar circumstances in a case. Particularly the precedents
means the Judge made law. When the court gives its own ideas for
creating new rules. England, America and China also follow the previous
decisions as the source of law but the continent countries like Germany,
Japan does not accept the previous decisions as the source of law. The
method of taking precedents as source of law is called inductive
method, while the method of continental countries not following previous
decisions of the court is called deductive method.
MERITS OF PRECEDENTS:- Precedents are a very important source of
Law. They play an important role in the development of law, so they
have certain advantages as:
1. Precedents show true respect to the ancestors means by adopting
the previous decision of the higher court to decide the present case, it is
a kind of respect to elders.
2. Precedents are suitable to the present situation means after some
times the circumstances of the society can change with the change of
time so the precedents they are more suitable and fit for the present
time and circumstances.
3. Precedents are based on customs means the law in the form of act
which based upon customs. Court interprets the customs while
interpreting any act.
4. Precedents are convenient and easy to follow because they are
available in the form of written reports.
5. Precedents bring certainty in law, once decision is given in a case
there would be no need to repeat all precedents in any other case if it
resembles to the former case.
6. Precedents are the best guide for the Judges: They play an
important role in the judiciary because the precedents are the guide
lines for the courts.
DEMERITS OF THE PROCEDENTS:- lthough the demerits are very
few but these are as under :-
i) The decisions are given by the human beings while performing the
duties as judge, his decision may not be suitable to all persons who
have different mind and thinking. This will be a bad effect on Judiciary.
ii) Sometimes the decisions of the higher courts contradictory to each
other. It becomes harder to another judge to apply the same verdicts as
a precedents of higher court
iii) Sometimes the higher courts give a wrong decision and over pass
the important factors of the case due to one reason or the others.
PRECEDENTS ARE BINDING:- The precedents is an important source
of law. It is available in the form of judicial decisions. Now the question
arises that in what sense and when the precedents are binding o follow.
For the answer of this query different views have been given by the
various writers and jurists. No doubts the precedents is not binding like
warrant issued by a court of law. It means precedent can be over ruled
if they are not right or appropriable to the case to be decided but warrant
has to be followed by all to whom it is applicable.
It is not necessary that in the case which is to be decided the
circumstances and the facts must be the same as in resembling case. If
the facts and the circumstances of the cases are materially similar then
the precedents or previous judicial decision is applied in the later cases
and are applied only in the form of ratio decidendi of previous cases.
There are two parts of it :-
i) Ratio-decidendi:- means reasons which leads the court to reach
the decision. It is the main part of the case in judgement and the ratio
decidendi of the decision is binding in the form of precedent.
ii) Obits decidendi:-It is also a part of the decision which is irrelevant
to the facts and circumstances of the case. The judge takes into
consideration the social conditions, morality, principal of natural justice
that is why the Judges play an important role in the development of legal
system.
DIFFERENCE BETWEEN CUSTOM & PRECEDENTS
CUSTOMS PRECEDENTS
Custom is primary source of law.
Precedents are the secondary source of law.
Custom is given by people in general. Precedents are given by courts.
Custom is conduct adopted by people of society. Precedents is itself
complete certain, reasonable given by a competent court of the country.
Custom is based upon the reasoning of common people of the society.
Precedents are based upon the reasoning of a individual Judge or
very few judges.
Customs have more value then precedents and cannot be ignored. It
can be ignored if it gives un-justice.
 DO JUDGES MAKE LAW:-
There are two theories about this purpose one theory says that Judgs
do not make laws and other theory says that Judges in fact are the
makers of Laws. This theory is also known as declaratory Theory.
According to this the judges are not makers of the laws which they are
already n existence. The judges while deciding the case only applies the
existent and relevant customs for deciding the cases.
Judges are not the law makers:- The supporters of this theory (historical
school) says that all the laws are based upon customs. The judges only
to explain these laws and customs. According to Coke hate and
Dr.Carter, that the law is created by the King or by the Parliament or by
the Legislature bodies. Common Laws is based upon custom. The
public through the decision of courts come to know those customs. It
means that Judiciary is not the maker of law. A case: Rageshwar Parsad
v/s state of West Bengal. It was held that, The court does not create
Law.
ORIGINAL LAW MAKING THEORY
This theory is opposite to the first theory. It says that the Judges are the
real makers of the law. They not only interpret or explain but also make
the law. According to Salmond: who is the main supporters of this
theory says, That the decisions of the courts are a great contribution to
the legal system. Dicay says that, that legal system is the best part of
the law of England which is judge made law.
CONCLUSION:- The conclusion or the correct view is that we cannot
ignored any of the above theories because both are correct and
complements to each other and both should be taken. No doubt that a
Judge can only to explain or to interprets the existing laws but at the
same time he also creates the new ideas, thoughts and gives new touch
ideas which play an important role in the development of law.
15 Discuss the main features of the Pure Theory of Law. How it
resembles with Austins command theory. Critically examine the view of
Kelson given under pure theory of Law?
Introduction:- The Pure Theory of Law is given by Kelson. This theory is
also known as Vienna School because Kelson is the productor of
Vienna University. This theory resembles with Austins command theory
because in Kelsons theory there must be sanction behind law. Austin
gave it the name of command theory and Kelson gave it the name of
grandnorm theory. Kelson is affected by local conditions, natural
condition and international condition. After studying all these conditions
he gave this theory of Law, which is known as pure theory of law and
grandnorm theory .
Concept of pure theory of Law:- At the time of Kelson there are Ist world
was which destricted the property of human beings at international level.
So he gave power to the international law and avoiding the destructions
of the world. Secondly during that time many countries adopted written
constitution. So Kelson also get influenced from these written
constitutions and gave his own theory which is based on grandnorms.
Grandnorm
Grand means great and norm means Law, So it means a great law
the superior authority from which law comes out. He compared the
grandnorm with written constitution. According to him written constitution
is the highest authority in the country which is known as grandnorms. In
England the Parliament is a grandnorm, in USA written constitution is
grandnorms and in India too written Constitution is grandnorm. State is
not above the grandnorm. Sovereignty also liven in grandnorm.
Accoding to Kelson law is a motive nor science, it means science of
norms. In laws only those rules are taken which are related with legal
aspects. Any others like moral rules, religious rules, ethical rules do not
come under the concepts of grandnorm. Here Kelson is equal to Austin.
When he excludes morals relation or ethics from the field of law.
System of Normative Rules:- System of normative rules was Hierarchy.
In hierarchy system there is one highest authority and all other are lower
authorities. This highest authority was grandnorm which was in the form
of written constitution and other authorities are below the constitution.
The source of power in a state for all bodies is written constitution.
Internation Law:- Kelson says that norms have a force behind it. This
force lies in the grandnorm. If this legal norm is not obeyed then one
person will be punished for it. He also says that at this time international
law is immature. It is in primitive stage. It is developing.
Nature of Grandnorm:- According to Kelson each country has the
formation of grandnorm according to local conditions. The duty of jurists
is to interpret the grandnorm in their own language. They are not
concerned with the goodness or badness of the grandnorm. They are
not concerned with the origin of the grandnorm. In this way the
grandnorm is the main source of all the laws in the country.
Elements of Pure Theory:- Kelson gave his view under this theory about
State, sovereignty, public and private law, public and private rights,
international law private and juristic law.
Feature of Kelsons theory:-
1. Grandnorm as a source of law:- Grandnorm is the source of all
laws. Grandnorm is in the form of written constitution. Any such body,
which contains rules, or any such legal system in a country.
2. No difference between law and state:- Kelson says that there is no
difference between law and State between because they get power from
the same grandnorm. Law comes from the grandnorm and the state also
comes from the grandnorm.
3. Sovereign is not a separate body:- Austin says sovereign is a
politically superior person which keeps controls over the politically
inferior persons. But Kelson says that the power of sovereign lies in the
people. So the Sovereign is not separate and superior from the people
of the country.
4. No difference between public law and private law:- The public law
is related with the state and the private law is related with the individuals
as Kelson says that there is no difference between public law and
private law. The law which creates a contract between individuals is
called private law.
5. Supremacy of internationally laws:- The main prupose of Kelson
was to decrease the tension at world level because there was Ist world
war which destroyed millions of persons and property. He also said that
the internaiton law is in primitive stage or immature stage. It means it is
in developing stage. One day will come when international law will get
equal to that of municipal law. So this is also enforceable.
Criticism of Kelsons theory:- In-spit of having good concept of pure
theory given by Kelson some of the criticism faced by him, which are as
under:
a. Grandnorm is a vague concept:- The concept of grandnorm is not
clear. It cannot be applied where there is no written constitution. The
base of grandnorm in the form of positive norms or the rules based only
on legal order is not clear. The rules, which are not linked with morals
ethics. Customs and religion are not the norms. But we can not ignore
the role of these norms in the development of law.
b. Interantion Law is a weak law:- Kelson advocated the supremacy of
international law. But even upto now we see that is no force behind
international law.
c. No difference between state and law:- this point is also criticised by
various writers. Law as a separate thing from the State. State is body is
law in, which law is a rule that regulates the state.
d. Difference between public law and private law:- Kelson says that
there is no different between public law and private law. Which is also
not right in the modern days.
e. Customs and Precedents ignored:- He also customs as a source of
law while we see that customs are the source of all laws.
Conclusion:- Although Kelson has been criticised from various angles
yet he had contributed a lot in the development of the society. Thus the
concept of grandnorm gave power to the public at large as well as at
national level. His main purpose was to stop destruction of any world
war. This can resemble to Austin also Kelson is also limited with the
law.

16 Discuss the Salient features of the Sociological School of

Jurisprudence? OR Salient features of the Sociological School of
Jurisprudence?
Introduction:- The sociological school is one of he important branches of
law. It comes after the Analytical school and Historical school. Its seeds
were found in the historical school. Duguit, Roscopound and Camta are
the supporters of this school. This school is related with society.
According to this school law is numerator of society. Law and society
both are the two sides of the same coin, one cannot exist without the
other. If there is law there should be society and if there is society there
should be law. Law is very necessary for regulating the society. Many
writers like Duguit, Roscopound and Inhering gave these view in the
sociological school.
The theory of Duguit under sociological school is a social solidarity.
Scocial solidarity means the greatness of society. Duguit said that there
are mainly two types of needs of the society:-
1.Common Needs 2. Adverse Needs.
1. Common Needs :- Which are fulfilled by mutual assistance.
2. Adverse Needs.:- Which are fulfilled by the exchange of services. No
one can live without the help of other. Even a state cannot exist without
the help of other state. One cannot produce all things required for him.
So he has to depend upon others. The dependency is called social
solidarity. For this purpose the division of labour is necessary. Division
of labour will fulfill all requirement for the society. This philosophy or
views is called social solidarity.
ESSENTIAL ELEMENTS OF DUGUIT THEORY OF LAW
1.Mutual Inter dependence : In society all persons are depending upon
each other. Individual cannot fulfill his ambitions alone.
2. No difference between state & society: State and society are a group
of persons. Main purpose of the society is to save the people. This
responsibility is also lies upon the state. So state does not have a
special status or above status from people. State should make law for
the welfare of the people.
3. Sovereign and will of people: Sovereign is a politically superior
person. Duguit says that sovereign is not superior to people. The
sovereign of a state lives in people or in the will of people.
 DIFFERENCE BETWEEN PUBLIC & PRIVATE LAW
Duguit says that there is no difference between public law and private
law because the aim of both the law is to develop the social solidarity.
Pubic law and private law are meant for people. Public right and private
right or people have only duties and not any right.
There is no difference between public right and private right.
According to Duguit there is only one right that is to serve the people. It
means person have only duties not rights.
CRITICISM OF DUGUITS THEORY
1.The theory of social solidarity is vague:- This theory is not clear for a
common person. One cannot gain anything from this theory so this is
vague theory.
2.Who will decide social solidarity :- Duguit has not given the authority
that who will explain the solidarity because Duguit did not recognize
sovereignty. We can imagine that Judge will explain the standard of
social solidarity. But there are no guidelines for the Judgess
3.Public law and Private law are not same :- There must be an authority
which passes the law. In Duguit theory there is no place for such
authority.
4. Public right and Private right are also not same :- The right of society
is public right and the right of common people is private right.
5. Custom ignored:- Custom is the base of any law but Duguit ignore
these customs. In this way the theory of Duguit is not suitably in modern
times.

CONCLUSION
No doubt Duguit was a sociologist because he gave a lot of
development to society. The social solidarity itself contains the welfare of
the people. Duguit said that law should be according to the social
solidarity. Here he discards natural principal but the theory of the social
solidarity itself is based upon natural law, which demands that the
people should served properly according to their needs. In this way
Duguit put out the natural law principal from the door and accepted
through the window.
However the contribution of Duguit is accepted by many writers and
some of them also adopted this theory.

17 Define Ownership. Discuss the various kinds of ownership.

Distinguish between possession and ownership.
INTRODUCTION: Ownership is linked with possession. Possession is
the first stage of ownership. It means for ownership possession is
necessary. Possession and ownership both are two sides of the same
coin and one cannot exist without the other.
Ownership gives the full right over the thing. Ownership is ultimate and
final right for disposing the property. It means to transfer that property in
any way. Ownership is a relation ship between the person and the thing.
For ownership there must be a thing and the owner of thing. The
concept of ownership was absent in the ancient society. There was also
no concept of possession too. Slowly and slowly as the society
developed the concept of possession also developed. The idea of
ownership came into existence. So this way after the progress of the
concept of ownership the person became the full owner of his property.
DEFIN ITION :- Before to define the ownership we have to discuss the
various kinds of law :-
Roman Law :- As evident from history that the Roman Law was the first
law in the world. It is considered the ancient law. All concepts of law
begin from the period of Roman society. Under the Roman Law the
concept of ownership is defined in the form of dominion that means to
have the right control of a thing. The concept of ownership developed in
the form of a right over the thing. Dominion is distinguished from
possession. Possession means to have possession over a thing but
dominos means to have a right over the thing.
HINDU LAW :- Hindu Law is also considered as the most ancient law in
the world. In Hindu law the concept of ownership also has been
discussed. In Hindu Law ownership is said a , According to Hindu Law
ownership means a relationship between person and a thing. Person is
called owner and a thing is called property. Means a property which is in
the control of a person is his property.
VIEWS OF MODERN & WESTERN JURISTS
The western jurists like Austin, Holland and Salmond defined the
concept of ownership.
Austin :- According to him ownership is the relationship which exists in
between the person and the thing. This definition resembles with the
definition under Hindu Law. Austin says that in ownership a person has
the following relations with the thing.
1.Indefinite Use :- It means to use that thing in any way whether to use it
for agriculture or for industry, residence but there is a restriction that one
cannot use ones property in such a way which destructive in the living
of others.
2.Un-restricted power of dispose:- Means to transfer that thing or
property according to his choice. He can sale or to mortgage even to
give on lease or gift to anybody. But under art.19(2) of the Constitution
reasonable restrictions can be imposed by the Govt., in the interest of
public policies.
3.Un-limited duration of time :- means the right of transfer of his property
will remain always in the name of owner. After his death it will go to his
heirs so there is no time limits.
4.Domination :- It means to have control over the thing. For this
purpose both elements of possession corpus and animus should be
there. If the conditions are there between person and the thing and then
the person is owner of that thing.
According to Holland: He defined the ownership as a plenary control of a
person over a thing. The definition also contains the following conditions
:-
1.Possession 2. Enjoyment 3. Disposal.
According to Salmond :- Salmond defines ownership as a relationship
between person and the right. Right means to have a thing under
possession. Thing always represents physical objects. But right always
represents a thing which is not in physical existence like copy right and
allowances are always thing which are called property. And which are
not in physical existence.
Salmond has included all those right which are property in the concept
of ownership. In view of the above it is learnt that Austin and Holland
definitions are not complete. But salmond is completely perfect in his
definition.
KINDS OF OWNERSHIP
There are various kinds of ownership which are as under :-
1. Corporal and Incorporeal ownership: Corporeal and incorporeal
ownership also called material and immaterial ownership. Corporeal
ownership is the ownership of a material object and incorporeal
ownership is the ownership of a right. Ownership of a house, a table or a
machine is corporeal ownership. Ownership of copyright a patent or a
trade mark is incorporeal ownership.
2. Sole and co-ownership:- The general principal of ownership is that
vested in one person only. But some times it vested in many persons in
other words two or more person have the right of ownership. If only one
person have right of ownership that known as sole ownership and where
two or more persons have the right of ownership then know as co-
ownership.
3. Vested and contingent ownership:- Ownership is either vested or
contingent it is vested ownership when the title of the owner is already
perfect. It is contingent ownership when the title of the ownership is yet
imperfect.
4. Absolute and Limited ownership:- means owner is one in whom are
vested all the rights over a thing to the exclusion of all or when a person
has an absolute right over his property known as absolute ownership.
When there are limitations on the user duration or disposal of rights of
ownership the ownership is limited ownership.
5. Legal and Equitable ownership:- Legal ownership is that which has its
origin in the rules of common law. Equitable ownership is that which
proceeds from the rules of equity. Legal right may be enforced in rem
but equitable rights are enforced in personam.
CONCLUSION
The ownership is a relationship between person and the right. These
rights include the right of possession enjoyment and disposal of the
property. If all conditions are there then it is called Ownership.

DIFFERENCE BETWEEN POSSESSION & OWNERSHIP

POSSESSION OWNERSHIP
1.Possession is a primary stage of ownership which is in fact. 1.
Ownership is in right.
2.Possession does not give title in the property defacto exercise of a
claims 2. While in ownership it gives title in the property dejure
recognisation.
3.Possession is a fact. 3. Ownership is a right and superior to
possession.
4.Possession tends to become ownership. 4.Ownership tends to
realize itself in to possession.

5.Possession dominion corpus and animus are necessary.

5.Ownership they are not necessary because law gives full rights.
6.Transfer of possession is comparatively easier.
7. Possession is nine points of law. 6.Ownership most of the cases
involves a technical process i.e. conveyance deed etc.
7.Ownership always tries to realize itself in possession i.e. complete
thing.

18 Define Custom and essentials of a valid custom. Discuss its

importance as a source of law and also compare with precedents.
INTRODUCTION: Custom is a conduct followed by persons in the
society. Custom is considered as the most ancient and most important
source of law. Source means origin of a thing. It is also considered that
law basically comes out from customs. In the past customs were
prevailing for the control over the society.
Austin was the first person who discarded the value of the
custom. But the historical school again gave the importance to custom.
The sociological school also gives importance to law with relation to
society.
In the modern times the precedents i.e. Judge made law and
legislation have become over powered to that of customs. As in a case
of Maduri v/s Motu Ram Linga. It was held that even custom power over
the state.
VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM AS A SOURCE
OF LAW.
The followings are the systems which recognized custom as a source of
law :
1.Romal Law :- Roman Law is known to be the oldest one in the world.
This law is mainly based upon customs of the society. Those customs
which were reasonable continued them as law by the Roman jurists.
2.Hindu Law :- Hindu law is also to be considered as the most ancient
law. His sources are Vedas, Sutras and Smiriies and these were mainly
based on customs. All personal laws of Hindu are based upon custom
that is why Lord Warren Hastings and Lord Cornwallis did not attack on
customs of Indians.
Manu said One should follow the given path of their ancestors. This was
nothing but the reorganization of customs.
3.Mohammedan:- Particularly ignored customs for the purpose of law.
During th Muslim period in India their customs were protected by State.
The British rulers in India also protected customs and personal laws
which were based upon customs. The traditions which were not
opposed by the prophet Mohammedan were recognized as law. In this
way we can say that customs in Mohammedan law also played an
important role.
4. English Law :- Which is known as common law and in the shape of
un-written and based upon customs and conventions. Customs which
were reasonable and not against the public policies were recognized as
law under English Law.
According to Pollock, The common Law is customary law. Black
stol common includes written law and un-written law. The written law is
based upon the general customs. In this way English law also gave
importance to the customs as a source of law.
CLASSFICATION OF CUSTOMS
Mainly the customs are of four types :-
1.National Customs :- Those customs which are related to the nation
and are applicable on the countrys people.
2. Local Customs :- Those customs which are related with a particular
locality.
3. Family Customs :- Those customs which are related with a family and
have application on a particular family.
4. Conventional Customs :- These customs based upon conventions
e.g. a bigger part of English Law based on customs and conventions.
ESSENTIALS OF CUSTOMS
1. Antiquity :- It means oldness of the customs. The customs must be
ancient. There is no limit of time for the antiquity of custom. In India
there is no fixation of such time limit.
2. Reasonable :- The customs must be reasonable. It should not be un-
reasonable and against the public feelings.
3. Followed :- Customs must be followed by the society. There should be
no contradiction in observing customs.
4. Continuity :- Customs must be continuing from the time it was
recognized as law. There should not be any break or interruption. If
there is break for sometimes it does not mean that the right thing has
been lost.
5. Certainty :- Customs must be certain in its nature.
6. Consistency :- There should not any confliction for its reorganization
as a law.
7. Peaceful enjoyment :- Custom must be enjoyed peacefully for a long
time without an disturbances.
8. Immorality:- Customs should not be against the morality.
9. Public Policy:- It must not be against the public policies or against the
will of people.
10. Not against the State of Law:- Customs should not over-ride the
legislation . It should not be against the law of the land.
WHEN DOES A CUSTOM BECOME LAW.
ANALYTICAL VIEW:- Austin and Gray are the supporters of analytical
school. They say that a custom becomes law when it is recognized by
the sovereign in the sense of positive law only.
It means that if a custom has been accepted or adopted or
recognized by the sovereign then it will become a law otherwise there
will be no value of the custom in judicial system of the society.
HISTORICAL SCHOOL:- Sovereign as the supporter of Historical school
says that custom is a main source or base of law He says that
consciousness of the volkgiest is the main source of law.
Custom is superior to Judge made law or legislation. The
legislation while making a law recognizes the customs of the society.
 The courts also while giving the decisions recognized the customs
prevailing in the society.
CONCLUSION
Custom occupies an important place as a source of law even to these
days because most of the material contents of developed system of law
have been drawn from ancient customs. Custom is one of most fruitful
sources of law. According to Analytical school a custom when
recognized by State or sovereign becomes law. According to Historical
school when state or courts make law they give importance to the
customs. So both of the view are combining to each other and are
correct for a custom as source of law.

19 Rights and duties are co-relative. Discuss. OR Distinguish between

claims liberties powers and immunities also explain the correlative of
each.
Introduction:- Right and duties are the very important element of law.
The term Right has various meanings such as correct, opposite of left,
opposite of wrong, fair, just and such like other expression etc. But in
legal sense a right is a legally permissible and protected action and
interest of a man group or state.
Definition
According to Austin :- Right is a standard of permitted action within a
certain sphere. He further define right is a party has a right when others
are bounds to obligesed by law to do or not to do any act.
According to Salmond : It is an interest recognized and protected by
the rule of justice / law.
According to Gray:- Right is not an interest itself but it is the means by
which the enjoyment of an interest in secure.
According to Prof. Allen:- The essence of right not a legal guarantee in
itself but a legally guaranteed power to realized an interest.
ELEMENTS OF RIGHTS
1. Subject:- The subject of a right is concerned with the person legal and
artificial or a group who legally is entitled to seek the privilege and
benefit of against other. In other words the subject is that the person
whom the right is vest.
2. Content:- This is the subject matter of the right along-with the nature
and limits of that right.
3. The person of Incidence :- It means that the person upon whom falls
the corrective duty.
OBJECT:- The object of the right may be material or immaterial
determinate or indeterminate.
CHARACTERSTICS OF RIGHTS
1. RIGHT is a general o specific type of claim, interest or such like
expression of the people in a State.
2. The right is duly recognized and approved by the State through its
agencies.
3. A legal right is expressed a deep correlation with a corresponding
duty, liability or disability on the part of those against whom such right is
conferred.
4. A right may has its independent existence and type of assemblies
with other rights.
5. Basic philosophy or the fundamental concept of right remains
permanent but with the time being it is subjected to incorporate the allied
changed in it.
6. The realization and scope of a legal right depends upon the type of
society and the nature of interest.
THEORIES OF RIGHTS:- There are two main theories of legal right:-
1. Will theory:- The will theory says that the purpose of law is to grant
the individual i.e. self expression or positive declaration. Therefore right
emerges from the human will. The definition of right given by Austin and
Holland, that the will is the main elements of a right. Pollock says,
that right in term of will.
2. The Interest Theory:- Interest is the basis of right. A great german
jurists defines about the legal right as, A legally protected Interest.
According to him the basis of right is Interest and not will.
The definition of law is in term of purpose that law has always a
purpose. In case of right the purpose of law is to protect certain interest
and not the wills or the assertions of individuals. These interests are not
created by the State but they exist in the life of the community itself.
TYPES OF RIGHTS
1. Primary and secondary Right: They are known by Antecedent and
remedial rights names also.
2. Perfect and imperfect Right: Means which has a correlative positive
duty.
3. Negative and Positive Right:-Positive means related to duty whereas
negative means not related to duty.
4. Right in Rem & Personam:
5. Right is repropria and Right is Re-aliena.
6. Vested and contingent right.
7. Propriatory and personal Right.
8. Equitable and legal right.
Duty
Introduction:- The term duty may be used in various form as an
obligation, as responsibility and accountability. There are some scolers
who define Duty as following:-
Definitions of Duty:- According to Gray, Duty is the act of or forbearance
which an organized society used to impose on people through state in
order to protect the legal right of other. According to Rose Duty is the
Pre-dicament of person whose act are liable to be control with the
assistance of the State. As per Hoffield The duty is the correlative of
Right.
Classification of Duties:- Duty classified into two categories. There are
as follows:-

Duties

Positive And Negative Duties Primary and Secondary

Duties

1. Positive and Negative Duty:- A positive duty implies some act on the
part of person on whom it is imposed. Negative duty implies some
forbearance on the part of the person on whom it is imposed.
2. Primary and Secondary duty:- A primary duty is that which exists
perse and independent of other duty. A secondary duty is that duty
whose purpose to enforce some other duty.
Essentials of duty:- There are following essential of duty:-
a. It may be dependent and independent.
b. It consists an obligation on the part of someone and confirm a
privilege upon other.
c. The concept of duty is affirmed and protected by the law of the land
where it exist.
d. The concept of duties is a changing process which arises from time
to time, place to place and circumstances to circumstances.
e. Duty in most of the cases creates an absence of right against some
person.
f. Duty may be fundamental, legal or moral in character.
Relation between Right and Duties:- The following objects describes the
correlation between right and duties:-
i. A right is indispensible without any duty.
ii. A duty and right has separate and independent existence.
iii. A right procreates duty and vice-versa.

OR Your choice

Even though right and duties are opposite points but there is a great
relation between two relations. The right and duties has a relation of
Father and Child, Husband and Wife because there is no father without
child and no wife without husband. So right and duties cannot be
separated form each other.
Right/Claim Liberty or privilege Power Immunity
Duty No claim Liability Disliability
(Jural opposites) (Jural correlative)
Conclusion:- Right and duties are correlative of elements of each other.
There is no right without duty and there is no duty without right. These
are recognized by law for maintaining the society very well.
20 Define law as an instrument of social change. What special changes
have been brought out by law?
 INTRODUCTION:- Law as a command as it introduces subjective
considerations whereas the legal theory is objective. Notion of justice as
an essential of law because many laws though not just may still continue
as law. Science as system of knowledge or a totality of cognitions
systematically arranged according to logical principles. The laws of
natural science are capable of being accurately described determined
and discovered. A law is valid because it derives its legal authority form
the legislative body and the legislative body its own turn drives its
authority from Constitution of India. The aim of law as of any science is
to reduce chaos and multiplicity to unity.
According to Kelson, law is normative science but law norms may be
distinguished from science.
Definition of Law:- while emphasising Volksgeist as the essence of law,
Savigny justified the adoption of Roman Law in the texture of German
Law which was more or less defused in it. Law has unconscious organic
growth, it found and not artificially made. Law is not universal in nature.
But like a language it varies with the people time and need of the
community. With the growing complexity of law the popular
consciousness as represented by lawyers who are nothing but the
mouth peace of the Consciousness.
Law as an instrument of Social Change:- The following are the elements
which have been helping the law to be an instrument who bring the
social changes:-
1. A social Utilitarian:- The system develops aspects of Austinian
positivism and combines them with principles of Utilitarianism as
established and developed.
2. Law is the result of Constant struggle:- According to Ihering the
development of law like its origin is neither spontaneous nor peace full.
It is the result of constant struggle with a view to attain peace and order.
Law is the guarantee of the conditions of life of society.
3. Law is to serve for social purpose:- As a result of social changes
comes through law that is social purposes comes in conflict with the
duty of the State is to protect and further social purposes to suppress
those individual purposes which clash with it. Therefore, law is coercion
organised in a set form by the State.
4. Law protects Social Interest:- Law is a such type of instrument
which protects the social interest of the people. According to Bentam it
is the persuit the pleasure and avoidance of pain.
5. Law is to found in social facts:- AS per Ehrlich, That the law of
community is to be found in social facts and not in formal sources of law.
He says at present as well as any other time the centre of gravity of
legal development lies not in legislation, nor in juristic science, nor in
judicial decision but it lies in society itself. It is a social changes.
6. Living law is the fact that govern social life:- The essential body of
legal rules is always based upon the social facts of law and the facts of
law which underline all law are usage, domination, possession and
declaration of will .
7. Law according to the requirement of Society:- It means that law in a
society should be made and administered with the utmost regard to its
necessity.
8. Law also to serve this and:- Law is the rule which men possess not
by virtue of any higher principle whatever, good, interest or happiness
but by virtue and perforce of the facts because they live in society and
can live in society. This is because of to use the law as an instrument
which brought the Social Changes.
Conclusion:- The contribution of law in the social changes is a great and
its approach is more scientific and comprehensive. The study of law in
social context and emphasizes its close relation with the life of society.

60 comments:

Unknown 18 September 2015 at 06:56

Glory to the law!
and to a fine effort by you:>
Reply

Unknown 13 October 2015 at 02:59

you Saved me for my Mid Term.. :) Thank u...
Reply

Sagar Saxena 13 December 2015 at 08:47

well done bro. good job.
Reply

SWATANTRADUBEY 19 January 2016 at 22:21

nice note
Reply

Mugishagwe Jabiri 21 January 2016 at 09:52

U really expert in jurisprudence bro.
Reply
Reply

anil kr jangra 20 February 2016 at 06:22

Very good notes
Reply

anil kr jangra 20 February 2016 at 06:23

Very good notes
Reply

Unknown 4 March 2016 at 03:43

This comment has been removed by the author.
Reply

Leki Chozom 4 March 2016 at 03:50

Nice note. It is useful.
Reply

Nandita Gogoi 20 March 2016 at 01:11

plz can you give the difference between natural school and analytical school??
Reply

Replies

subash bhandari 31 July 2016 at 22:16

Natural school
Jeremy Bentham is father of natural school of jurisprudence and as well as
jurisprudence also..... According to this school law is already exit in order to
 nature of human nature.... Law should focused on increasing happiness of
people and reducing sorrow or pain..... only that could of law is acceptable to
society and long lasting..... Like almost all laws are exit in our society by
nature even those all law are cant written.... so it should be based on moral
values of human.....

Analytical School of jurisprudence

Austin was father of Analytical school of jurisprudence and according to his
philosophy law is command of sovereign.... Their are mostly 4 things as a law
1. Command
2. sovereign
3. Sanction/punishment
4. Habit
Any authority that only can made law..... they should have sovereigen power
and somebody if they disobey or break the rule their is a system of
punishment..... and this school is focused of what law is not what ought to
be......
critiques is their is no morality... what type of law should made..... the
sovereign could made law and also authority of punish in abandons of law.....

their may be mistake... sorry for that

subash bhadari
Kathmandu Nepal

Reply

Jr. Williams 16 April 2016 at 11:24

What exactly is Sociological Jurisprudence?
Peonia Guimaraes Machado Martins
Reply

Replies

subash bhandari 31 July 2016 at 22:00

the sociological jurisprudence is the principle of law which describe and focus
that the origen of law is society and father of this school is rusco pound who
 Germen philosopher...... According to this school law is not made but it is
searched in social customs.... The social custom is source of law and not
made by people in recent decade.... like in middle east law is a part of muslim
religion due to influence of religion most of law is customary.... and the critique
is that if the society assuming the bad ritual and social activities should they
can be law or not ? And if a society is blindly believing the religion and some
rituals that had been habit although they could be taken as law or not.... in my
view

Indu Pal 25 April 2017 at 21:29

functions of state and relation of law and state?

Reply

Bharat Ugile 17 April 2016 at 07:42

very nice attempt to narrate Jurisprudence
Reply

AJAY MEENA 24 May 2016 at 06:09

Thanks a lot bro
Reply

Advocate Chander Kalia 1 June 2016 at 03:14

Gud job.. Lot of help for my exam tomorrow.. Thanks..
Reply

Advocate Chander Kalia 1 June 2016 at 03:16

Gud job.. Lot of help for my exam tomorrow.. Thanks..

Reply
Reply

Unknown 1 June 2016 at 12:02

nice notes >>>>> Good Job
Reply

Babar Bhatti 14 July 2016 at 07:02

Excellent efforts..... thanks
Reply

Unknown 10 September 2016 at 11:54

bro your email id ?
Reply

Usha Kannangara 11 September 2016 at 10:20

Thank you so much. Very helpful notes. Bless you!
Reply

Unknown 14 September 2016 at 01:43

Very good effort done by you, do u share ur knowledge for other subject's in law
Reply

devasish kumar sahoo 30 September 2016 at 07:54

what are the features of state
Reply
Dangel 3 October 2016 at 17:14
Is there a value in defining jurisprudence
Reply

Dangel 3 October 2016 at 17:14

Is there a value in defining jurisprudence
Reply

maame adom 10 October 2016 at 22:18

thanks so much for throwing more light on this topics.. well done ..
Reply

Unknown 15 October 2016 at 06:55

Frst tym got such notes ...thnx a lot
Reply

Best Current Affairs 22 October 2016 at 08:29

Very Very Thanks
Reply

Unknown 4 November 2016 at 09:03

excellent notes! very helpful
Reply

Unknown 14 November 2016 at 00:00

good answers
give me some more answers (notes)
Reply

Manik Sharma 27 November 2016 at 09:35

What is expository and censorial jurisprudence?
Please give notes. Thx
Reply

Manik Sharma 27 November 2016 at 09:36

Also need info regarding theological, divine, metaphysical and scientific nature of
jurisprudence
Reply

Unknown 30 November 2016 at 11:17

Outstanding notes...can you please provide notes on historical school
Reply

ayushi bansal 30 November 2016 at 11:25

Outstanding notes...can you please provide notes on historical school
Reply

ayushi bansal 30 November 2016 at 11:26

Outstanding notes...can you please provide notes on historical school
Reply

deepak agrawal 5 December 2016 at 04:13

Excellent notes plz.provide notes for administrative law and international law for my
upcoming exams on next week
Reply

Unknown 5 December 2016 at 05:34

Please provide notes on, Functions of Law in a democratic society like india
Reply

ritesh varshneya 21 December 2016 at 00:47

Can you give me indian perspectives in jurisprudence??
Reply

Sandeep Kumar 26 December 2016 at 19:13

please give Marxist tepry of critical evulation,
Reply

Sandeep Kumar 26 December 2016 at 19:14

please give Marxist tepry of critical evulation,
Reply

Sandeep Kumar 26 December 2016 at 19:16

please provide Marxist theory of critical evuluation
Reply

Sandeep Kumar 26 December 2016 at 19:17

please provide Marxist theory of critical evuluation

Reply
Reply

Leul Tsegay 29 December 2016 at 00:53

you are really jurist !!! tnx !!!
Reply

miko 2 January 2017 at 01:22

Can please provide feminism notes???
Reply

Munisha Ahmed 4 January 2017 at 05:18

Thnk u so much....it is really helpfull...
Reply

akanksha Ahuja 10 January 2017 at 06:11

Notes no doubt good but but some topic are missing
Reply

Ishpreet Mehta 14 January 2017 at 22:56

Can you please provide the topic indian perspective of sociological school?
Reply

Unknown 18 February 2017 at 01:17

Pls provide notes on economic and realist school of jurisprudence
Reply
jacinta sarah 20 February 2017 at 22:33
very helpful notes
please help me with notes about bentham and the principle of utility
Reply

Rimsha Abid 8 April 2017 at 00:17

What is agreement as a source of law?
Reply

Rimsha Abid 8 April 2017 at 00:21

Also tell me legislation as asource of law..plz
Reply

SUCCESS MANTHRA 13 April 2017 at 18:47

http://www.propellerads.com/?rfd=TzFc
Reply

Unknown 15 April 2017 at 10:09

Thank you soo much ...... It's very useful
Reply

LIFE AROUND YOU 20 April 2017 at 09:00

This one is one up. Very useful
Reply

Deepak Kushwaha 22 April 2017 at 12:47

 Awesome notes
Reply

Dotto Phillipo 21 June 2017 at 21:11

Sorry guys I want to know about the problems of jurisprudence..?
Reply

Safvan Mohamed 27 June 2017 at 22:35

Plz give a short information in fuctions of law
Reply

Unknown 8 July 2017 at 02:04

Please explain Ratio Decidendi and Obiter Dicta
Reply

Unknown 8 July 2017 at 02:05

Please explain Ratio Decidendi and Obiter Dicta
Reply

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