JURISPRUDENCE

BY ASST. PROF. SURABHI TOLANI

 JURISPRUDENCE:

FOR:

BALLB IV

LLB II
 SYLLABUS:
2019 PATTERN:

Objectives of the Course :

The course aims at developing an analytical approach to
understand the nature of law and the development of legal
system. Jurisprudence seeks to answer fundamental questions
about law. The concerns of jurisprudence are an inescapable
feature of the law and legal system. Jurisprudence has
generous frontiers. It accommodates copious subjects of
intellectual enquiry. This course identifies and elucidates
several of the major preoccupations of legal theory. This
course also create an understanding of basic legal concepts like
Rights, Person, Property, Title, Possession, Ownership, Liability,
Obligation which are basic to the study of Law.
 MODULE 01
INTRODUCTION TO JURISPRUDENCE:

1. Jurisprudence – Meaning, Nature, and

Utility

2. Meaning, Characteristics, Purposes and

Classification of Law

3. Relationship between Law and Morality

 MODULE 02
SOURCES OF LAW :
1. Legislation – Meaning, nature, kinds, merits and demerits, relation with other
sources

2. Precedent - Meaning, nature, theories of Precedent, Doctrine of Stare Decisis,

article 141 of the Constitution of India, kinds, ratio decidendi and obiter dicta,
doctrine of prospective overruling, significance and circumstances destroying
binding force, relation with other sources

3. Custom - Meaning, nature, essential conditions, kinds, concept of Volkgeist

4. Juristic Writings - Meaning, nature and significance.

 MODULE 03
NATURAL LAW THEORIES :
1. Classical Natural Law theory: Plato and Aristotle, St.
Augustine, St. Thomas Acquinas.

2. Natural law and Social Contract Theory : Hugo Grotius and

International Law, Hobbes, Locke, Rousseau.

3. Revival of Natural Law : Lon Fuller and the Morality of Law,

H.L.A. Hart on Natural Law, John Finnis and the Restatement
of Natural Law
 Module 04
Legal Positivism :
1. Bentham and John Austin's theory of
positivism

2. Hart's concept of law

3. Kelsen's Theory of law

 Module 05
Sociological, Realist and Historical Schools of Law :

1. Sociological school of law - Roscoe Pound

2. Realist school of law –

a) American Realism: W Holmes, Karl Llewellyn, Jerome Frank
b) Scandinavian Realism: Axel Hagerstrom, Alf Ross, Karl Olivercrona

3. Historical school of jurisprudence - Savigny and Maine. - Comparison of

Historical and Analytical School of Law
 Module 06
Critical Legal Studies :
1. Critical Feminist Jurisprudence –
a) Feminist Legal Theory
b) Origins of Feminism
c) Legal Feminisms - Liberal Feminism, Radical Feminism,
Postmodern Feminism

2. Critical Race Theory –

a) Critical Race Theory’s critique of Liberalism
b) Critical Race Theory’s racial critique of Civil Rights Scholarship
c) Critical Race Theory as Reconstruction Jurisprudence
 Module 07
Rights and Duties :
1. Meaning of Wrong, Duty and Right

2. Characteristics of Legal Rights

3. Kinds of Legal Rights

4. Theories of Legal Rights

5. Hohfeldian Classification of Legal Rights

 Module 08
Concept of Property and Obligations :

1. Meaning of Property

2. Kinds of Properties

3. Theories of Property

4. Modes of acquisition Property

5. Definition of Obligation

6. Solitary Obligations

7. Sources of Obligations
 Module 09
Concepts of Ownership and Possession :

1. Meaning of Ownership

2. Characteristic of Ownership

3. Subject-matter of Ownership

4. Kinds of Ownership

5. Modes of acquiring Ownership

6. Meaning of Possession

7. Kinds of Possession

8. Modes of acquiring Possession

9. Possessory Remedies

10. Comparison between Ownership and Possession

 Module 10
Concept of Person :
1. Nature of Personality - Natural and Legal

2. Legal Status of Lower Animals, Dead persons, Unborn

Persons

3. Kinds of Legal Persons

4. Uses and Purposes of Incorporation

5. Theories of Legal Personality

 Module 11
Concept of Title :
1. Definition and Nature of Title

2. Classification of Titles

3. Importance of Agreements

4. Kinds of Agreements

5. Validity of Agreements
 Module 12
Concept of Liability :
1. Definition and Nature of Liability

2. Kinds of Liability

3. General Conditions of Liability

4. Measure of Penal Liability

5. Measure of Civil Liability

6. Theory of Strict and Absolute Liability

7. Vicarious Liability in Civil and Criminal Law

8. Liability of Corporations
 Recommended Readings :

1. Bodenheimer Jurisprudence – The Philosophy and Methods of Law,

Universal Law Publishing, 1996.

2. Fitzgerald, (ed.) Salmond on Jurisprudence, Sweet & Maxwell, 1999.

3. W. Friedman, Legal Theory, Universal Law Publishing, New Delhi,

1999.

4. H.L.A. Hart, The Concept of Law, Oxford University Press, ELBS, 1970.

5. Hilaire McCoubreyand Nigel D. White, Textbook on Jurisprudence,

Oxford University Press, 1999.
6. M.D.A. Freeman (ed.), Lloyd’s Introduction to
Jurisprudence, Sweet and Maxwell, 1994.

7. Mark Kelman, A Guide to Critical Legal Studies,

Universal Law Publishing Co., 2010.

8. N.Y. Jayakumar, Lectures in Jurisprudence, 2nd Ed.,

LexisNexis.

9. P.S. Atchthew Pillai, Jurisprudence and Legal Theory,

Eastern Book Company.

10. Paton G. W. Jurisprudence, Oxford University Press,

ELBS, 1972.
11. Raymond Wacks, Understanding Jurisprudence,
Oxford University Press, 2012.

12. Roscoe Pound, Introduction to the Philosophy of

Law, 1998 Re-print, Universal Publication, Delhi.

13. Suri Ratnapala, Jurisprudence, Cambridge

University Press, 2009.

14. V. D. Mahajan, Jurisprudence and Legal Theory,

1996 Re-print, Eastern Books, Luknow.

15. Vijay Ghormade, Lectures on Jurisprudence &

Legal Theory, Hind Law House, Pune.
BEGINNING OF THE SUBJECT
JURISPRUDENCE
BY ASST. PROF. SURABHI TOLANI
 Module 01 Introduction to
Jurisprudence:

Meaning:

The word ‘jurisprudence’ is made from the

Latin word ‘jurisprudent’ - the knowledge of
law. “Juris” in Latin signifies ‘legal’, and
“prudentia” means ‘skill’ or ‘knowledge’.
 Value of Jurisprudence:

Jurisprudence does not contain a sets of rules as in contracts or torts and also has no practical application.
However, it has its own values, unique and distinctive.

i) The subject has its own intrinsic interest.

ii) Its researches have influenced other subjects in the field of political, medical, and social thinking.

iii) It is educative, as it sharpens the lawyers own techniques.

iv) Its method and explanations help resolve the complexities of law. Thus, theory helps law to solve problems
and,

v) Professional lawyers may get a glean into the sociology of law i.e., the realities of time, and, make them
look-forward with an orientation.
 Definitions:

Austin : He defines 'jurisprudence' as

"the philosophy of positive law.“

Holland: " Jurisprudence is the formal

science of positive law'"
Salmond: " Jurisprudence is the science of the first
principle of the civil law.“

Keeton: Keeton Defines jurisprudence as " the

study and systematic arrangement of the general
principles of law.”
Roscoe Pound: " The science of law, using the term law in
the juridical sense, as denoting the body of principles
recognised or enforced by public and regular tribunals in
the administration of justice".

Dr K. C. Allen: Jurisprudence is the scientific synthesis of all

the essential principles of law.
G.W. Paton: Jurisprudence is a particular method of study, not the law of one
country, but of the general notion of law itself.

Julius Stone: "Jurisprudence is the lawyer's extraversion.

Gray : According to John Chipman Gray " jurisprudence is the science of

law, the statement and systematic arrangement of the rules followed by the
Court and the principles involved in those rules."
Ulpian: Ulpian a Roman Jurist defines jurisprudence as " Jurisprudence
is the knowledge of things divine and human, the science of just and
unjust."

Dr M.J. Sethna: Jurisprudence is a study of fundamental legal principles

including their philosophical, Historical and sociological bases and
analysis of legal concepts.
 Function of Jurisprudence

 The core function of jurisprudence is to study

the origin of law; from where a particular law
has developed and traces back its origin as to
how that law has contributed towards society.
The matters related to birth, marriages, death,
succession, etc., are equally controlled through
laws. As a result, jurisprudence has a lot of
applications in civil life.
 Nature of Jurisprudence

 Jurisprudence, in its nature, is a different subject. It is neither

a procedural subject nor a substantive subject. It is the
mainstream of whole law, from where the different laws
originate. It is not a codified law like the Indian Penal
Code, Criminal Procedure Code, or the Constitution.
 Conclusion: It is Both.
 Relation of Jurisprudence- not depends on –what law
treated?
But on – how law treated?
 Thus, the contents of Jurisprudence
include: Sources of law. Legal concepts
and Legal theories. ‘Systematic
jurisprudence’ deals with the contents of
an actual legal system as existing at any
time, whether past or present. It is also
known as ‘expository jurisprudence’.
Is Jurisprudence Art or Science

 Many authors and jurists came in the timeline, and

everyone gave different opinions or views regarding
the nature of jurisprudence. It is called both art and
science. But to call it or prove it to be science is more
appropriate. The reason for this is that, in science, we
draw conclusions after doing a systematic and logical
study by applying new methods and techniques.
Similarly, jurisprudence is concerned with the
fundamental principles of law, and thus calling it
science is a bit more suitable.
 Scope of Jurisprudence

 According to Justice P.B Mukherjee, “Jurisprudence is

both an intellectual and idealistic abstraction as well as
a behavioural study of man in society. It includes
political, social, economic, and cultural ideas. It covers
the study of man concerning to state and society.”
Every jurist or thinker does not construct his research
study on the rules already made but tries to understand
their utility after due consideration. This is the
reason jurisprudence has no limited scope and is a
developing subject.
 Utility and Significance of
Jurisprudence

 Many times it is said that

jurisprudence being an
abstract and theoretical
subject, has no use in the day-
to-day world. It only contains
theories to study and adopt
with no practical implications.
But it is not correct or
appropriate to make such a
statement. Its utilities are as
under:
1. Salmond attracted everyone’s attention to the fact that jurisprudence has
its inherent interests like other subjects of law. For so long, the research work
done on jurisprudence may have their effect on contemporary socio-political
thought or idea.

2. Jurisprudence also has its practical applicability in one way or the other in
the field of law. It helps advocates in practice to apply and adopt different
legal theories whenever required.

3. It is considered as a secondary or subsidiary subject but has a high value in

educational institutions. Jurisprudence is an essential subject for the study of
law.
4. The logical analysis by jurists of legal concepts and theories broadens the outlook of advocates
and sharpens their sensible technique to look a case effectively. It helps lawyers overlook their
rigidness and formal nature and trains them to work and focus on social realities.

5. Holland observed, “the ever-renewed complexity of human relations call for the increasing
complexity of legal details, till a merely empirical knowledge of law becomes impossible.” From this,
we can derive that jurisprudence throws light on the basic ideas and the fundamental principles of
law in society. This is the reason it is considered as “the eye of law.”

6. The study of jurisprudence helps students, interns, and all practicing advocates in developing the
correct thinking and prepares them for an honest life ahead. The knowledge of law also helps them
to face every necessity related to human affairs boldly and courageously.
Jurisprudence in Daily Life

“Ignorance of the law is no excuse” is a

saying well known throughout the world.
Therefore, it is of prime importance to
understand the correct basic principles
of law which are contained only in
jurisprudence. It is therefore mandatory
that all the people in the country,
whether they belong to the fraternity of
law or not, should have the sound
knowledge of the law. Every person must
know the law of his land. And this is
possible only with the help of
jurisprudence!
JURISPRUDENCE

By Asst.Prof. SurabhiTolani.
Law
 Law is a system of rules created
and enforced through social or
governmental institutions to regulate
behaviour in society. It has been

Meanin variously described as a science and

the art of justice. State-enforced laws
can be made by a group or by a single
g: legislator, resulting in statutes; by the
executive through decree
and regulations; or established by
judges through precedent, usually
in common law jurisdictions.
 Austin: “Law is the command of the
sovereign.” “It is the command of the
superior to an inferior and force is the
sanction behind Law.”

Definition Holland: “A Law is a general rule of external

behaviour enforced by a sovereign political

s:
authority.”

Salmond: - According to salmond “the law

may be defined as the body of principles
recognized and applied by the state in the
administration of Justice.
According to Gray, “the Law of the State or of any organized body of men
is composed of the rules which the courts, that is the judicial organ of the
body lays down for the determination of legal rights and duties.

The system of rules which a particular country or community recognizes

as regulating the actions of its members and which it may enforce by the
imposition of penalties

The Vedas: “Law is the king of Kings”.

 1. general rule of human behaviour.

2. definite and formulated.

3. enforced by the government.

Nature of 4. binding and authoritative values.

Law:
5. Sovereignty of State.

6.Punishments.

7.Settlement of disputes.

8. command of the sovereign.

9.Purpose of Law is to provide peace, protection, and
security.
10. modern legal system and liberal democratic state.
Characteristi It is a set of rules.

cs of Law: It regulates the human conduct

It is created and maintained by the state.

It has certain amount of stability, fixity and

uniformity.

It is backed by coercive authority.

Its violation leads to punishment.

It is the expression of the will of the people and is

generally written down to give it definiteness.

It is related to the concept of 'sovereignty' which is

the most important element of state.
Types of Imperative law:
Physical or Scientific Law:

Laws:
Natural or Moral Law:
Constitutional Law:
Customary Law:
International and Municipal Law:
Civil and Criminal Law:
General laws
Special laws:
i. Local law:
ii. Foreign law:
iii. Martial law:
iv. Conventional:
v. Autonomic law
vi. Prize law
Relationshi
p between
Law –
Morality
and Ethics:
 Ethics and morals relate to “right”
and “wrong” conduct. While they
are sometimes used
interchangeably, they
Ethics and are different: ethics refer to rules
morals: provided by an external source,
e.g., codes of conduct in
workplaces or principles in
religions. Morals refer to an
individual's own principles
regarding right and wrong.
 Morals and Law differ because
the law demands an absolute
subjection to its rules and
commands. Law has enforcing
Morals authority derived from the
and Law: state. Law regulates men’s
relations with others and with
society. Morals are nothing but
the individual's own principles
regarding right and wrong.
 Ethics are rules of conduct.

Ethics
Laws are rules developed by
governments in order to
provide balance in society and
and protection to its citizens. Ethics
comes from people’s awareness
Law of what is right and wrong.
Laws are enforced by
governments to their people.
 Purpose Dynamic Concept.
and
Function of Changing with time
Law
Means to an end.

Maintain peace and security in

Society
 THE The subject matter of jurisprudence being
the study of law, it is necessary to

DISTINCTIO understand the distinction between term.

"the law" and "a law". The term. "the law"

N BETWEEN connotes the whole legal system in its

totality. It has been termed jus droit in Latin

THE LAW and its German equivalent is recht.

According to Roscoe Pound the expression

AND A LAW
"the law" or law means the legal system
operating in a country. On the other hand,
the term "a law" means a particular statute
in its isolated form, the Latin equivalent for
which is lex loci i.e.. a statute.
 Uniformity and Certainty:

Advantages Protection against arbitrary, biased

of Law: and dishonest decisions:

Freedom from errors of Individuals

judgment

Reliability.
 Rigidity

Disadvantages Conservatism
of Law:
Formalism

Complexity

Uncertainty of law
SOURCES OF LAW
Legislation

By Asst. Prof. Surabhi Tolani.

 Legislation: Meaning
 Legislation is the source of law which consists of the
declaration of legal rules by a competent authority.
 Legislation is the laying down of legal rules by a
sovereign or subordinate legislator.
 Law that has its source in legislation may be most
accurately termed “enacted law” all other forms are
“unenacted”.
 NATURE:

•MADE BY LAW MAKING BODY

•CODIFICATION AS A FEATURE
•CERTAINTY
 KINDS OF LEGISLATION

 SUPREME & SUBORDINATE LEGISLATION

 DIRECT & INDIRECT LEGISLATION

 DELEGATED LEGISLATION

 CONDITIONAL LEGISLATION
Supreme Legislation: Legislation which proceeds from
the sovereign or supreme in the state
 Incapable of being repealed, annulled or controlled
by any other legislative authority.
 British parliament is true sovereign law making
body (No external restraint on absolute authority)
 India-Parliament is sovereign but not supreme
although it possesses the power of supreme
legislation
 Constitution is supreme, with true sovereignty
vesting in the people.
Subordinate Legislation: Legislation which proceeds from
any authority other than sovereign power and is
therefore dependent for its continues existence and
validity upon some superior or supreme authority.
5 forms of subordinate legislations

(1)Colonial-powers of self government entrusted to colonies

(2)Executive- Parliament delegates its rule making powers
to departments of the executive organ
(3)Judicial-Superior courts making rules for regulation of
their own procedure.
(4)Municipal-Municipal authorities law making powers for
the districts
(5) Autonomous- eg., Railway companies, Universities.
DIRECT & INDIRECT LEGISLATION:
Direct Legislation:
Framing of laws by the legislature
Colonial legislation is a type of direct legislation

Indirect Legislation:
When legal principles are declared by some other sources
to whom law making power is confined by the legislature.
Except Colonial Legislation- All other forms of
subordinate are instances of indirect legislation.
 DELEGATED LEGISLTION:
When law making power confereed by the legislature
upon some other body declare laws.
Growth of delegated legislation:
 Concept of Welfare State-more work-more
legislation-No time for parliament
 Difficult for parliament to lay down rules-Technical
in nature-delegated this work to departments &
Ministers
 Delegated legislation necessary to meet unforeseen
contingencies
 Flexibilty & Expediency-elements-good governance
 In cases-Emergency due to war-insurrection-floods
etc
 Need of Delegated Legislation;

❖ No time to Parliament.
❖ Technicality of the Subject.
❖ Unforeseen contingencies.
❖ Flexibility.
❖ Emergency.
 Control of Delegated Legislation:

❖Procedural Control
❖Parliamentary control
❖Judicial Control
 CONDITIONAL LEGISLATION
1.Extend the operation of law to an area of territory
2.Determine the time of application of an Act to a given

area
3. Extend the duration of a temporary Act, subject to
minimum period fixed by legislature
4. Determine the extend & limits within which it should
be operative
5.Introduce a special law if the contemplated situation
has arisen in the opinion of the government.
 CODIFICATION
Code means:
A systematic collection of statues, body of laws, so
arranged as to avoid inconsistency and overlapping.
Compilation, promulgation, collection and
systematization of the body of law in a coherent form by
an authority in a state competent to do so.
Salmond : “ The reduction of the whole corpus juris so far
as practicable, in the form of enacted law”
Bentham: “A complete digest as such is the first rule.
Whatever is not in the code ought not be law”
 CONDITIONS FOR CODIFICATION
Roscoe Pound:
 Where legal institutions have become completely mature
or where the country has no juristic post, the non-
existence of such material.
 Uncertainty & Archaic character of Law
 Development of an efficient organ if legislation

 The needs for one uniform law in a political

community whose several sub-divisions has developed or
received divergent local laws
 CLASSIFICATION OF CODES
1. Creative : code which make laws for the first time
without any reference to any other law.

Eg., India Penal Code

2.Consolidating : code which consolidates the whole-
statutory, customary & precedent, on a particular
subject & declares it.

Eg., The Transfer of Property Act 1882

3. Creative & Consolidating: code which make law as well
as consolidate the existing law on a particular subject.
 Merits

 Certain

 Simplicity

 Logical Argument

 Stability

 Planned development

 Unity
 DEMERITS
 Rigidity
Incompleteness
 Hardship

 Lack of Clarity
Defective Codes
Savigny:
 Incoherent & defective
 Not Necessary to produce code in an age which can
answer its needs
 Defects of law would become more obvious through
codification
 Due to codification existing rights & duties are disturbed
Relation with other sources

Relation with
other sources

Precedent Custom
 Relation of Legislation with Precedent

❖Legislature makes the laws while those laws

are interpreted by judiciary.
❖Legislation is the formal declaration of
statute while Precedents are the application
of the new principles.
 Relation of Legislation with Custom:

❖Legislation is de jure customs are de facto.

❖Growth: Theoretical Principle /out of
Practice.
❖Custom is more ancient than Legislation.
❖Legislation is Written, Complete and Precise
and not a vice versa.
Thank You
By-
Asst. Prof. Surabhi Tolani.
 What is a precedent?

Literal meaning- Something that has happened before

As Defined in Black’s Law Dictionary, "precedent" is a "rule of law

established for the first time by a court for a particular type of case
and thereafter referred to in deciding similar cases( Black’s Law
Dictionary P 1059 5th edition 1979)

Precedent is the legal principle or rule that is created by a court to

guide the judges when a similar set of facts come.
Object of Doctrine of Precedent:

To Avoid Confusion.

To avoid uncertainty.

To avoid multiplicities of the cases.

To achieve uniformity.
 Nature of Precedent:

It is Evidence of Law.

It is the Source of Law.

It has Binding Nature.

It Helps to avoid confusion.

 Kinds of precedents
Authoritative precedents:
Sources: ratio of the judgment of the higher
court in a previous case with similar set of
facts.

Persuasive Precedent:
Sources- Dissenting opinions, Decisions of
subordinate courts, Decision of foreign courts,
Obiter dicta, etc.
 Theories of
Precedent:

Declaratory Constitutive
theory theory
 Declaratory theory:

Judges Never makes laws

They only declare the laws

Legislature makes the laws

Judges never play creative role in law making process.

Blackstone: judges are law finder and not the law maker.

Austin: it is Hypocritical and childish.

 Criticisms on the
declaratoty theory

2.Creates new
1. judges widen and
principles. Eg Maneka
extents rule of law.
Gandhis case
 Constitutive theory

This theory is also known as Law making theory

Supporters: Salmond and Bentham.
Judges do make the law.
Purely Constitutive power.
Criticism:
Judges have no authority to change it for a new law of their own making.
 Doctrine of stare decisis

According to the doctrine of stare decisis (“let

the decision stand in its rightful place”), when a
point of law has been once settled by a judicial
decision, it forms a precedent which is binding
and must be followed. It is this binding nature of
certain judicial decisions that makes precedent
an independent as well as an important source of
law in common law jurisdictions.
 Doctrine of stare decisis

Latin phrase which means to stand by decided

cases.

Article 141 of Indian Constitution:

All the subordinate courts are bound to follow

what is laid down by the supreme court.
 Cases on Stare Decisis

1.East India commercial co. ltd Vs. collector

of customs(AIR 1962 SC 1873)

2. Baradakant Mishra Vs. Bhimsen Dixit(AIR

1972 SC 24)

3. CIT Thana Vs. Thana electricity Supply

limited
 Ratio Decidendi

Ratio decidendi (Latin plural rationes decidendi) is a Latin

phrase meaning "the reason" or "the rationale for the
decision". The ratio decidendi is "the point in a case that
determines the judgment“ or "the principle that the case
establishes". In other words, ratio decidendi is a legal rule
derived from, and consistent with, those parts of legal
reasoning within a judgment on which the outcome of the
case depends. The process of determining the ratio
decidendi is a correctly thought analysis of what the court
actually decided—essentially, based on the legal points
about which the parties in the case actually fought.
 Obiter dictum:

Obiter dictum (usually used in the plural, obiter dicta)

is the Latin phrase meaning "by the way", that is, a
remark in a judgment that is "said in passing". It is a
concept derived from English common law, whereby a
judgment comprises only two elements: ratio
decidendi and obiter dicta. For the purposes of
judicial precedent, ratio decidendi is binding,
whereas obiter dicta are persuasive only.
 Doctrine of Prospective
overruling
Meaning:
The basic meaning of prospective overruling is construing an
earlier decision in such a way that it would not have a binding
effect to the parties of the original suit or the cases decided
based on that judgment, and yet changing the law, applying it
only prospectively to the future cases. The doctrine overrules an
earlier laid down precedent with effect limited to future cases
and all the events that occurred before it is bound by the old
precedent itself. . All other statements about the law in the text
of a court opinion—all pronouncements that do not form a part
of the court's rulings on the issues actually decided in that
particular case (whether they are correct statements of law or
not)—are obiter dicta, and are not rules for which that
particular case stands.
 THE DOCTRINE OF PROSPECTIVE OVERRULING:
HISTORICAL IMPORTANCE

The doctrine of prospective overruling which aims at

overruling a precedent without causing a retrospective effect
was introduced by the American judicial system. It was for
the first time laid down by Justice Cardozo and Justice Lerned
Hand.

Applicability of Prospective Overruling in India: The

Supreme Court of India’s power to prospectively overrule its
earlier decision was established in the case of Golak Nath v
State of Punjab.
Chief Justice Subba Rao believed:
It is a modern doctrine suitable for a fast-moving society.
It does not do away with the doctrine of stare decisis but
confines it to post transactions. It is a pragmatic solution
reconciling the two conflicting doctrines, viz that the
court finds law and that it does make law also. It finds
law but restricts its operation to the future. It enables the
court to bring about a smooth transition by correcting its
errors without disturbing the impact of these errors on
the past transactions.
Sarwan Kumar v. Madan Lal
Aggarwal
“Under the doctrine of “prospective
overruling” the law declared by the Court
applies to the cases arising in future only
and its applicability to the cases which
have attained finality is saved because the
repeal would otherwise work hardship to
those who had trusted to its existence.”
Grounds on which Precedent
got binding force.
Unanimity in Bench.

Eminence of Judges.

Conformity with the Statute.

Lapse of time.
When does a precedent ceases
to have a binding force
If it is reversed or overruled by a higher court.

When it is inconsistent with the earlier decision of the

same rank or higher court.

When it is rendered per in curium.

When it does not state any reason for the judgment.

Precedent is Sub silentio or not fully argued.

Erroneous Judgment.

Changed Conditions.

Over-Ruling

Changed Conditions.
 Advantages of using
preceedent as a source of law
The use of precedent has been justified as
providing predictability, stability, fairness, and
efficiency in the law.
“Reliance upon precedent also promotes the expectation
that the law is just. The idea that like cases should be
treated alike is anchored in the assumption that one
person is the legal equal of any other.

Precedent also enhances efficiency.

Enable the judges to re-shape law according to social
requirements.

Gives practical and perfect law.

Certain and easy to understand.

Help to save time and energy.

Provides flexibility to law.

Certainty

Uniformity

conformity
 CASES WHERE JUDICIAL CREATIVITY HAS BEEN
DONE BY THE INDIAN COURTS

• Municipal Council, Ratlam v. Vardhichand(

AIR 1980 SC 1622)
• A.K.Singh v. Uttarakhand Jan Morcha(AIR
1999 SC 2193)
• Indra Sawhney v. Union of India, ( AIR
1993 SC 477)
• Mohd. Ahmad Khan V. Shah Bano Begum
(Shah Bano case) (AIR 1985 SC 945)
 Disadvantages of precedent

If there are more than one ratios laid down in a judgment

then which ratio is to be considered a precedent.

There are numerous case laws and hence it is a tedious

task to recognize the relevant ones.

Unless a case in this regard does not comes to the court,

legal position can’t be given on the same.

Erroneous decision create problems.

 Certain examples good
precedent and source of law.

1. Vishakha Vs. State of Rajasthan.(AIR 1997 SC 3011):

Judges- J.S. Verma C.J.I., Mrs. Sujata V. Manohar and B.N. Kirpal. JJ.
The present writ petition has been brought as a class action by
certain social activists and NGOs with the aim of focusing attention
towards this societal aberration, and assisting in finding suitable
methods for realization of the true concept of ‘gender equality;’
and to prevent sexual harassment of working women in all work
places through judicial process, to fill the vacuum in existing
legislation.
Certain guidelines were laid down in the present case to ensure
the same for the working women.
2. PUCL Vs Union Of India(Right to food case) (2001):
In order to ensure food security to the poor citizens ,
a case was taken up by PUCL. Food grains was
destroyed in the cold storages and was not used to
feed the poor and the needy. The court affirmed the
right to food as necessary to uphold Article 21 of the
Constitution of India, which guarantees the
fundamental right to “life with human dignity.
Supreme court since then passed numerous interim
orders in the present case ensuring the availability of
good quality food for children etc
3. Ashok Kumar Thakur Vs. Union Of India: This
petition challenged the basis of the Mandal
Commission's conclusion that OBCs constituted 52 per
cent of the total population. The National Sample
Survey Organisation had estimated it as 32 per cent
and the National Family Health Survey 29.8 per cent.
The Court issued notice to six Union Ministries and
also to the Federation of Indian Chambers of
Commerce and Industry in this connection.
This case made it possible to give statutory
recognition to the Right to education to all the
children from the age of 6-14 years.
4. The famous Nirbhaya case can also
be considered as a good precedent
and a source of law as it made way
for the criminal law amendment act
of 2013. This resulted in sensitizing
law with respect to women security
in the country.
Relation with other sources

Relation with
other sources

Custom Legislation
Relation of Precedent with Custom:

Customs are more ancient in nature than that of

Precedents.

Customs are followed since long time and Precedents

are followed from the date of the judgment.

Customs are not always binding but Precedents are

binding in nature.
Relation of Precedent with Legislation:

Legislature makes the laws while those

laws are interpreted by judiciary.

Legislation is the formal declaration of

statute while Precedents are the
application of the new principles.
 Conclusion

Judicial precedents are indeed a good source of

law. saves the time of the courts and hence helps
in ensuring effective justice delivery system.
It cannot be denied precedents are one of the
most important sources of law. But with time it
will become more and more difficult to keep a
track all such judicial precedent. So some
mechanism will have to be developed to make
good provisions for recording of precedence.
 Professional opinions and
Juristic writings:

Another source of law is professional opinions and juristic

writings. It mainly comprises of obiter dicta of judges,
writings of legal professional and other thinkers and
scholars. Though not a popular source of law, it is quite
useful in deciding upon original precedents. Some have
disregarded professional opinions and juristic writings as a
source of law and recognized their role as supplementary
to the other important sources of law.
Thank You.
By Asst. Prof.
Surabhi Tolani.
Salmond preferred to emphasis on
two main sources of law

Material Formal Sources

Sources
 Binding Persuasive
sources of sources
law
 MEANING OF CUSTOM:

Custom occupies an important place in regulation of human conduct in

almost all the societies. It is one of the oldest sources of law making. A
custom may be defined as "a continuing course of conduct which by the
acquiescence or express approval of the community observing it, has come
to be regarded as fixing the norm of conduct for the members of the
society. Olivecrona speaks of custom "as a certain manner of acting,
regularly observed within community". Custom in the legal sense may be
defined as those rules of human action, established by usage, which are
adopted by the courts because they are generally followed by the political
society as a whole or by some part of it. It is generally said that custom is to
society what law is to the State.
DEFINITIONS OF CUSTOM:
 NATURE:

FOLLOWED SINCE LONG TIME

UNIFORMITY OR HABITS OF THE PEOPLE

APPROVAL OF THE PEOPLE

 Relation with other sources

Relation with
other sources

Legislation Precedent
Relation of Legislation with Custom:

Legislation is de jure customs are de facto.

Growth: Theoretical Principle /out of Practice.

Custom is more ancient than Legislation.

Legislation is Written, Complete and Precise and not a vice

versa.
Relation of Custom with
Precedent:

Customs are more ancient in nature than that of

Precedents.

Customs are followed since long time and Precedents

are followed from the date of the judgment.

Customs are not always binding but Precedents are

binding in nature.
By :- Asst. Prof. Surabhi Tolani
Natural law theory is one of the oldest theories among all
the theories. Thus these laws are popularly said to be god
made laws. It is said to be emanated from supreme source
as observed by many jurist and philosophers. Legal thinkers
have expressed diverse views on behalf of natural law.

Natural law philosophy dominated the Greece during 5th

century BC when it was believed it was eternal to man.
 Main Characteristic of Natural Law:

Rigidity

Divine

Unwritten

Outcome of Philosophers.
 Natural
Law Theory •Ancient Theories
may be •Medieval Theories
broadly •Renaissance
divided Theories
into 4 •Modern Theories
classes :-
 Ancient Theories
Greece:
 The Greek thinkers developed the idea of 'Natural Law' and
laid down its essential features. There was no distinction
between religion and law. In the Greek times all laws were
received from the chief God. By the time the priest had every
important role in thesociety.
 The instability of political institutions and frequent changes
in law and government in small states in Greece made some
jurists to think that law was for the purpose of serving the
interest of the strong and was a matter of expediency. But the
same condition made different jurists to think in a different
line.
 Against changing government arbitrariness , philosophers
started thinking of some immutableand universal principles.
This gave them the idea of 'Natural Law'. In Socrates, we find
a systematic and logical expression of the idea.
Socrates
 Socrates said that like natural physical law there is a natural
law.Man possesses insight which reveals to him the goodness and
badness of things and makes him to know the absolute and
eternal moral rules. This human insight is the basis to judge the
law.
 Socrates did not say if the positive law is not in conformity with
moral law it would be disobeyed. According to him it was rather
appeal of insight to obey it and perhaps that was why he
preferred to drink poison in obeyance to lawthan to run away
from the prison. This theory was a plea for security and stability
which was one of the principle needs of the age. His people Plato
supported the same theory but it is in Aristotle that we find a
proper elaboration of thetheory.
 Aristotle (384 to 322 B.C)
 According to him, man is a part of nature in two ways; First, he is
the part of the creatures of God, and second, he possesses active
reason by which he can shape his will. By his reason man can
discover the eternal principle of justice. The man's reason being
the part of nature, the law discovered by reason is called 'Natural
Justice'.
 Aristotle defined natural justice as "that which every where has
the same force and does not exist by the people thinking this or
that".
 So far as it relation with positive law or legal justice is concerned,
he said that "legal justice is that which is originally indifferent
but when it has been laid down is not indifferent". In this way
'Natural law' as opposed to 'positive law' has invariablecontents.
 The fullest elaboration of 'natural law' in Greek legal philosophy
was made by Aristotle. His thesis has inspired greatphilosophers
even in modern times.
Plato:

Plato was an Athenian philosopher during the Classical

period in Ancient Greece, founder of the Platonist school of
thought and the Academy, the first institution of higher learning
in the Western world.

He is widely considered the pivotal figure in the history of Ancient Greek and Western
philosophy, along with his teacher, Socrates, and his most famous
student, Aristotle. Plato has also often been cited as one of the founders of Western
religion and spirituality. The so-called Neoplatonism of philosophers
like Plotinus and Porphyry greatly influenced Christianity through Church Fathers such
as Augustine. Alfred North Whitehea once noted: "the safest general characterization
of the European philosophical tradition is that it consists of a series of footnotes to
Plato."
 PLATOS IDEA:

CONCEPT OF IDEAL STATE:

REPUBLIC.

JUTICE: REASON AND WISDOM.

ROME

 Stoics
 In Rome, Stoics built up on the theory of Aristotle but
transformed it into an ethical theory. According to them the
entire universe is governed by'reason'.
 The theory of Stoics excercised great influence upon the
jurists during Republican Period and someof them paid high
esteem to 'natural law'. But in Roman system the theory of
natural law did not remain confined only to theoretical
discussions.
 Romans were very practical people. They used Natural Law to
transform their narrow and rigid system into a cosmopolitan
one. In this way natural law exercised a very constructive
influence on the RomanLaw.
INDIA

 Hindu legal system is perhaps the most ancient legal

system of the world. Hindus developed a very logicaland
comprehensive body of law at veryearly times. A sense
of 'justice' pervades the whole body of law. But the
frequent changes in the political system andgovernment
and numerious foreign invasions, one after the other
prevented its systematic and natural growth.
 According to Hindu view, law owes its existance toGod.
Law is given in 'Shruti' and 'Smritis'. The king is simply
to execute that law and he himself is bound by it and if
goes against this law he should bedisobeyed
Medieval Theories
 This period started from 12th century to mid 14th
century. The period that was highly dominated by
church fathers, between the collapse of the Greeks and
Romans civilization in the Middle Ages; the natural law
was capitalized by the church of fathers.
 Church fathers articulated that mankind is ruled by two
laws, natural law and custom. They said because of
divine character Natural law is absolutely being and it is
superior to other rules of law. It precedes them with
time. It came into existance with a very creation of man
and it does not vary in time but it remains unchangeable
Thomas Aquinas

 Aquinas theory: St. Thomas Aquinas defined the law

as an ordinance of reason for the common good made
by him who has the care of the community and
promulgated through reason he classified law as:-
 i) Law of God or external law,
 ii) Natural law revealed through reason,
 iii) Divine law or law of scriptures,
 iv) Human laws which we now called Positive law.
RENAISSANCE PERIOD
 It is in timeof 14st and 15nd century when their wasnew
development and development of science of thesociety.
 Reason must not be theoretical based but practicalbased.
 Some one has to give the sovereign power to preserve the
rights of the individuals.
 This combines the thinking of church and the sovereignty
of the state.
 This theory support social contract which we call as based
on society.
 Thomas Hobbes:

State of Nature.

Fear and selfishness of man.

Surrendered rights.

Preservation of life and security of property.

 John Locks:

To support the individual against the sovereign

power.

For protection and security purposes- contract.

Not surrender all the rights.

Kept some rights with them.

 ROUSSEAU
He classified social contract with natural laws in the
following ways:
 Social contract don’t govern with historicalfact
 Social contract must be region based
 To preserve the right of individual a person has given
sovereign powers
Theory of general will:- every individual has to follow and to
protect the rights such as life, freedoms states has to come
forward.
DOWNFALL OF NATURAL LAW THEORY
❖Until the begging of the 19th century natural law theory was a
philosophy of content i.e. sought to deduce the contents of just law
from fixed premises.
❖ HUMES pointed out that
•No casual connection between facts and ideas.
•One cannot derive an ought from is.
•Concepts such as god and evil are subjective emotional reaction.
❖ Natural law theory gives rise to French revolution
❖ Man is necessarily selfish
❖ Objections from another quarters i.e. historical and sociological
Due to this new climate o opinion the prevailing natural law theories
could not survive and analytical and hostical positivism with
increased stress.
MODERN PERIOD CONTD….
REVIVAL OF NATURAL LAW THEORY
 Scientific facts based on assumption
 Failure of positivism
 Judicial reasoning is creative and not purelysyllogistic
 Effects of world war
In these circumstances it is hardly surprising that therehas
been a return to natural law in a new form which strives
to take account, not only of knowledge contributed by
analytical, historical and sociological approach but also
to the increasing collectivist outlook on life.
MODERN PERIOD CONTD…..
NEO THOMISM
 Neo thomists, as Aquinas’s modernfollowers.
 They combined the scientific approach and utilize
scientific approach to give full explanation of reality
through reason and reflection.
 Humanism of Aquanice
 Formulate certain broad generalization, so abstractthat
they can beuniversal.
 Evolution of principle of positive law.
MODERN PERIOD CONTD…
JOHN FINNIS
According to him natural law consists of two setsof
principles:
 Certain basicvalues that are goal for human beings
 Practical reasonableness
These values are known are selfevident
Rights and obligation components of commercialgood.
MODERN PERIODS CONTD…
JOHN FINNIS CONTD…
Basic things covered under 1st principle:
1. Life
2. Play
3. Aesthetic
4. Experience
5. Sociability(friendship)
6. Practical reasonableness
7. Religion
Things under 2nd principle
Basic requirements of practical reasonableness
MODERN PERIOD CONTD…
TEMPORAL APPROACH
• The natural law of method is a way of working out just
laws and the 20th century has been seen versions of
natural law with variable content.
• The term temporal approach is in linewith the thinking.
• Nature of things
• Maxim sine quibus non
• Present one shattered and different one established, the
continuance of the too will require the same condition.
• Temporal approach in legal syatem
MODERN PERIOD CONTD…..
PROFESSOR LON.L.FULLER
• Sine quibus non for the functioning of law and achieving end.
• Divided morality into two
• Internal morality
• They are generality, promulgation, prospectively, intelligibility,
unself contradictoriness, possibility of odious, constancy
through time and congruence between official action and
declaration.
• External morality
• They are aspirations, ideas and it is possible to derive an
substantive natural law from it.
MODERN PERIOD CONTD….
HLA HART
• He admits that there is a core of rules indisputable truth in the doctrines of natural laws if
survival is taken as the minimum aim of human existence.
The conditions sine quibus non for achieving this end require that account be taken of five facts:-

Human vulnerability

Approximate equality of people

Limited altruism

Limited resources

Limited understanding

Though he hardly maintain that any law in violation of this is void. He also separate morality from law.

His concept of primary rules to secondary school

MODERN PERIOD CONTRD…
CONFLICT BETWEEN POSITIVSM AND NATURAL
THEORY
➢ DICUSSION OF WHAT LAW OUGHT TO BE AND
LAW IS TO.
➢ ORIGIN OF LAW
➢ PUNISHMENT FOR DISOBIENCE
➢ APPLICABILITY OF LAW
➢ SOURCE OF LAW
NATURAL LAW IN INTERNATIONAL
LAW
UNDR:Adopted on 10th December
2018. Lays emphasis on right to life,
freedom of speech and expression
etc
• Convention related to status of refugee 1951
NATURAL LAW THEORY IN INDIAN
LEGAL SYSTEM

• Article 14
• Article 21
Indian •
•
Article 22
Article 19
constitution • Article 20
• All personal law such as Hindu law and
Muslim personal law
CASE LAWS
Air India V/S Nargis Mirza the Supreme Court had struck down
the Air India and Indian Airlines regulations on the retirement and
pregnancy bar on the services of airhostess as unconstitutional on
the ground that the regulations were arbitrary and
unconstitutional under Article 14 of the Indian constitution.

Maneka Gandhi V/S Union of India the meaning and content life
and personal liberty under article 21 of Indian constitution came
up for consideration and the supreme court held that the law
established by the state should be just fair and reasonable .
CASE LAWS
Indian Express Newspaper V/S Union of India the theory of
Rousseau in which he mentioned of freedom and liberity
(freedom of speech and expression) has been applied, the
Rousseau‟s theory of freedom of speech and expression was said
to be natural right of every citizen by the Supreme court which is
also been conferred upon under Article 19 of Indian constitution,
wherein the freedom of speech and expression is said to be
among the basic right of a human being to live in a society with
dignity. To guarantee and promote fundamental rights and
freedoms of the citizens and the respect for the principles of the
democratic state based on rule of law.
ADM Jabalpur V/S Shivakant Shukla is one of the
important cases when it comes to rule of law. In
this case the question was whether there was any
rule of law in india apart from article 21. This was
in context of suspension of enforcement of Art. 14,
21 and 22 during the proclamation of emergency.
The answer is even in absence of article 21 of
constitution the right to life and liberty of a person
could not be deprived without authority of law.
Without such sanity of life and liberty the
distinction between lawless society and one
governed by laws would cease to have meaning
 MERITS OF NATURAL LAW THEORY:

MORALITY OR RELIGION

LOCK: IMPORTANCE OF CONCEPT OF LIBERTY.

JUSTICE : CREATION OF NATURAL LAW.

INDIVIDUAL RIGHTS ARE PROTECTED.

 DEMERITS OF NATURAL LAW THEORY:

RIGIDITY.

UNWRITTEN MANY A TIMES

VAGUE LAW.

IMPACT OF RELIGION.
CONCLUSION
Apart from its criticism the use of natural law has been prevalent since ages, even in
the present legal system the natural law is used extensively. The modern judicial
system have been founded on the British Pattern the fine principles of equality,
justice and good conscience and natural justice occupy an importance in Indian law.
The higher values of universal validity, righteousness, duty, service to mankind,
sacrifice, non-violence etc were already incorporated in ancient legal system . The
principles of natural law are embodied in dharma referred to duties of man towards
gods, sages, man and lower animals and creatures. It has been characterized as a
belief in conservation of moral values. During the medieval period and British period
in India natural law found its expression in religious preaching of Ramanuja, Sankara,
nanak, swami Ramakrishna etc. During the Mughal period there was a temporary
clash between the philosophies but after British invasion of India they tried to imply
their laws over here, they started codification of laws denying the supremacy of old
Indian laws. As due to long rule of British in india and incorporation of their rules in
here certain principles of English Natural law found its place in Indian laws. The
principle of natural justice, the doctrine of bias, judicial review, reasoned decision and
many other precepts of administrative laws are based on natural law.
THANK YOU.
Legal Positivism
BY ASST. PROF. SURABHI TOLANI.
 Positivist School:
Positivism is from the Latin root positus, which means to posit, postulate,
or firmly affix the existence of something. Legal positivism is a school of
jurisprudence whose advocates believe that the only legitimate sources
of law are those written rules, regulations, and principles that have been
expressly enacted, adopted, or recognized by a governmental entity or
political institution, including administrative, executive, legislative, and
judicial bodies. The basic question to be asked when talking about this
theory is “What is law?” Is it written? Where does it come from? Legal
positivism is a theory which answers these questions.
 Positivist
School

Bentham Austin Hart Kelson

Bentham's Concept of Law:
 Bentham's Concept of Law:
Benthem’s concept of law is imperative one i.e. “law is assemblage of signs,
declarations of volition conceived or adopted by sovereign in a State”. While supporting
the economic principle of Laissez faire (minimum interference of State in the economic
activities of individuals), he propounded the principle of utilitarianism: ‘The proper end
of every law is the promotion of the greatest happiness of the greatest number.’ He
defined ‘utility’ as ‘the property or tendency of a thing to prevent some evil (‘pain’) or
procure some good (‘pleasure’).’ According to him, the function of law must be to meet
these ends i.e. to provide subsistence, to produce abundance, to favour equality, and to
maintain security. Bentham’s doctrine of hedonism or theory of pain and pleasure has
been criticized on the ground that pleasure and pain alone cannot be the final test of
the adequacy of law.
 BENTHAM’S VIEW ON LAW:
Need of Codification.

Bentham: all laws are command, which either prohibit or permit some form of
actions of individual. Law Prevails in the form of legislation.
Acconding to Bentham, law is as an assemblage of signs declarative of a volition, conceived or adopted by the Sovereign in a
State, concerning the conduct to be observed in a certain case by a certain person or class of persons who in the case in
question are or are supposed to be subject to his power such volition trusting for its accomplishment to the expectation of
certain events which it intended such declaration should upon occasion be a means of bringing to and the propose which it is
amended should act as a motive upon those whose conduct is in question“.

He distinguished what law “is” from what law “ought to be ”.

Eight different aspect under which law is
to be consider:
Source
Subject
Objects.
Extent
Aspect
Force
Remedial State Appendages.
Expression.
 BENTHAM’S UTILITARIAN THEORY:
Function of law is to emancipate individual from the bondage and restraint upon
his freedom.

Principle of Laissez-Faire.

Greatest happiness of greatest number.

The consequences of evil and good are respectively Pain and pleasure theory.
Four major goals to ensure happiness:1.
Subsistence.

Abundance.

Equality.

Security for the citizens.

 CONTRIBUTION:
Bentham's constructive thinking and zeal for legal reform opened a new era of legal
reform in England. In modem times, legislation has become the most important method
of law making. Bentham's definition of law and analysis of legal terms inspired many
jurists who improved upon them and laid down the foundations of new schools of
jurisprudence. He examined the problems of international law. He was the first jurist
who coined the word "international law" and recognised international law as a law.
According to Dias it all the writings of Bentham had been known before, he could have
been the greatest single contributor to European jurisprudence. Paton remark while
commenting on contribution of Bentham to legal theory, "it was shocking that
Bentham's moralising and utilitarian theory of law was altogether rejected and excluded
from English jurisprudence during the closing years of 19th century.
 MERITS:
MATERIALISTIC BASIS

HE DIRECTED THE ENDS OF LAW TO PRACTICAL SOCIAL PURPOSES.

MORE EMPHASIS ON THE CONCEPT OF SECURITY

PAVED THE WAY TO SOCIOLOGICAL SCHOOL OF JURISPRUDENCE.

EMPHASIS ON CODIFICATION.
 DEMIRIT:
FRIEDMANN: Over estimated the powers of legislatures and under-estimated the need for individual discretion and flexibility
in the application of law.

Fails to maintain balance between the individual and community interest.

Pleasure and pain alone cannot be the test to judge a law.

Legislation is important but not only source of law/

No place for natural law.

Pleaded for codification and condemned precedents and customs.

AUSTIN:
Austin’s analytic approach to law offered an account of the
concept of law, that is, what law is. This was termed “Legal
Positivism” because it set out to describe “what law is” in terms
of what humans posited it was, thus the link between “positive
law” and “Legal Positivism.” Austin’s theory of law is a form of
analytic jurisprudence in so far as it is concerned with providing
necessary and sufficient conditions for the existence of law that
distinguishes law from non-law in every possible world.
FATHER OF ENGLISH JURISPRUDENCE

“Laws improperly so called ” distinguished from morality

and other law.

C-D-S Model
 LAW

LAW OF HUMAN
GOD LAW
 CHARACHTERISTICS:
SOVEREIGN

COMMAND

DUTY

SANCTION
 EXCEPTIONS TO COMMAND:

DECLARATORY OR EXPLANATORY LAWS

LAWS TO REPEAL LAWS

LAWS OF IMPERFECT OBLIGATION

 APPLICATION OF THEORY IN INDIA:
CONSTITUTION: SUPREME.

AS IT IS : A.K. GOPALAN CASE

C-D-S MODEL APPLIES UPTO CERTAIN EXTENT.

COMMANDS MEANS THE LAWS GIVEN BY SOVEREIGN AUTHORITY

DUTY OF THE PEOPLES

AND IF NOT OBEYED THEN THEY GOT SANCTION.

 MERITS:
ANALATICAL METHOD FOR FIRST TIME

SEPERATION OF LAW AND MORALITY

SUPREMACY OF LEGISLATION PASSED BY SOVEREIGN AUTHORITY.

SANCTION HELP IN LAW ENFORCEMENT.

SIMPLICITY

CONSISTENCIES

CLARITY
 DEMERITS:
CUSTOMS AND CONVENTION IGNORED OR OVERLOOKED.

PERMISSIVE CHARACTER OF LAW IGNORED.

NO PLACE FOR JUDGE MADE LAWS

TREATS INTERNATIONAL LAW AS MERELY AS A POSITIVE MORALITY.

COMMAND IS OVER-EMPHASISED.

LAW AND MORALITY RELATION IGNORED

SANCTION ALSONE IS NOT THE MEANS

LAW BASED ON RELIGION

SOVEREIGNITY IS HIGHLY EMPHASISED.

H.L.A. HART’S THEORY:
LAW AS A SYSTEM OF RULE:
According to HART: “Where there is law, the human conduct non-optional or obligatory.”
Thus idea of obligation is at the core of a Rule. Rules of obligation are supported by great
social pressures because they are felt necessary to maintain the society. To Hart, concept of
law is equivalent to the legal system. Hart mentioned that rules of law fall into different
logical categories that have distinct legal and social functions. He distinguished primary rules
from secondary rules or duty imposing rules from power conferring rule. Primary rules are
rules meant to guide the conduct of the individuals and other legal persons and secondary
rules are rules about how primary rules are to be created and recognized. The example of
duty imposing rules are rules of Income Tax Act, Wealth tax Act, etc. which requires that
taxes must be paid. The examples of power conferring rules are power to enter into a
contract, make will etc. These may be used or ignored.
LAW AS A SYSTEM OF RULE:

A legal system of consist rules. These rules are social in nature for two
reasons:

1. they regulate the conduct of member of society and that is why they
are social in nature.

2. they are derived from human social practices.

 Rules

Primary Secondary
 Primary
Rules
defects

Static
uncertainty insufficiency
character
 Secondary
Rules

Rule of Rules of Rules of

Adjudication Change Recognition.
HARTS VIEWS ON LAW AND MORALITY:

FOUR ATTRIBUTES OF MORALITY:

• IMPORTANCE.
• IMMUNITY FROM DELIBERATE CHANGE.
• VOLUNTARY CHARACTER OF MORAL OFFENCES.
• FORMS OF MORAL PRESSURE.
 Hart has
compared his
theory with:

club Game of cricket.

 APPLICABILITY OF HARTS THEORY TO
INDIAN LEGAL SYSTEM:

PRIMARY RULE: FUNDAMENTAL RIGHTS

SECONDARY RULE: POWERS OF THE DIFFERENT ORGANS OF THE STATE.

LAW IS ALSO APPLIED TO ITS FRAMERS.

POWERS OF OFFICIAL IS BASED ON LAW.

 MERITS:
DISCOURAGED SPECULATIVE THINKING.

LOGICAL METHOD.

WHY THE LAW IS APPLICABLE EVEN TO ITS FRAMER: EXPLAINED.

IMPORTANT ASPECT OF LEGAL SYSTEM.

CO-RELATED CONCEPT LIKE POWER, LAW AND STUDY.

 DEMERITS:
COMPARISON WITH GAME OF CRICKET.

COMPARISON WITH CLUB.

NOT CONSIDERED ANY DISCRETIONARY POWER.

VAGUE.
HANS KELSON:
According to Kelson a theory of law should
be uniform. It should be applicable to all
times and in all places. according to him,
Law must be free from ethics, politics,
history, sociology etc in other words, it
must be pure.
 KELSONS PURE THEORY OF LAW:
PURE LAW THEORY IS CLOSED TO SOME OTHER THEORIES.

THEORY OF LAW MUST BE DISTINGUISHED FROM THE LAW ITSELF.

THEORY OF LAW SHOULD BE UNIFORM.

LAW MUST BE PURE.

LAW IS A NORMATIVE SCIENCE.

HIERARCHY OF NORMATIVE RELATION

VALIDITY OF LAGAL NORMS.

MINIMUM EFFECTIVENESS.
 SALIENT FEATURES OF KELSONS THEORY:

AIM: TO REDUCE CHAOS AND CONFUSION.

WHAT LAW IS AND NOT WHAT IT OUGHT TO BE.

NORMATIVE SCIENCE.

THEORY OF NORMS.

CONFINED TO A PARTICULAR SYSTEM OF POSITIVE LAW.

 IMPLICATION OF THE PURE LAW THEORY:

LAW AND STATE ARE NOT TWO DIFFERENT THINGS.

NO DIFFERENCE BETWEEN MUNCIPAL AND INTERNATIONAL LAW.

NO DIFFERENCE BETWEEN LEGAL AND NATURAL PERSON.

SUPREMACY OF INTERNATIONAL LAW.

 MERITS:
MOST OUTSTANDING THEORY.

LAW AS A SEPARATE BODY OF KNOWLEDGE.

CLEAR, ORIGINAL AND STRIKING.

FREE FROM ALL IMPURITIES.

IMPORTANCE TO GRUND NORM.

 DEMERITS:
GRUNDNORM VAGUE AND CONFUSING.

PURITY OF NORM CANNOT BE MAINTAINED

NARURAL LAW IS IGNORED

SUPREMACY OF INTERNAATIONAL LAW

NO PRACTICAL SIGNIFICANCE.
THANK YOU.
Roscoe Pound : Social
Engineering

•BY ASST. PROF. SURABHI TOLANI

 Intoduction
• Pound was born on October 27, 1870, in
Lincoln, Nebraska
• Pound attended the University of Nebraska,
earning a bachelor of arts degree in botany in
1888
• He was a prolific writer and his major works
include The Spirit of The Common Law(1921,
An Introduction to The Philosophy of Law
(1922) etc
 Social Engineering
• Man is a social animal and needs a society for his
leaving, working and enjoying life
• The force which asks for the adoption of Social
engineering is nothing but the conflict of interests of
individuals
• “Social” means group of individual forming a society
• “engineering” , he explained his concept by explaining
the role of engineer/architect and equating it to
lawyer’s. Just as an engineer chalks up a plan before
starting a project so do lawyer’s they must work with a
goal in mind to uplift society
 Interest Theory
• In a society everybody is motivated by their own
interest and wants that preference be given to
his or her interest over the other. Conflicts
between interests arise because of the
competition of the individuals with each other
• For this purpose a legal system has to Recognize
certain interest
• Define the limits within which such interest are
to be legally recognized and given effect to it.
• And finally the above interest should be secured
• Pound classified various interests which are to be protected
by the law under three categories which are the following :
• INDIVIDUAL INTERESTS: These are claims or demands
involved from the stand point of the individual life which
consists of interest of personality, interest in domestic
relations and interest of substance
• PUBLIC INTEREST: These are the claims or desires asserted
by the individual from the stand point of political life which
means every individual in a society has a responsibility
towards each other and to make the use of things which
are open to public use. Interest in preservation of state
• SOCIAL INTEREST: These are the claims or demands in
terms of social life which means to fulfil all the needs of a
society as a whole for the proper functioning and
maintenance of it. Interest in preservation of general
peace, health, security of transaction’s, preserving social
institutions like religion, politics, economic
 INTERESTS

PRIVATE PUBLIC
INTEREST SOCIAL
INTERESTS INTERESTS

Individual interest Preservation of State

General security

Security of the
social institutions State as a
Domestic guardian
interest
General morals

Conservation of
Interest of social resources.
substance
General
progress
Promotes Human
personality
 Jural Postulates
• The guidelines on the basis of which social engineering should be
carried out.
• In 1919, Pound summarized the Five postulates, They are :
• Others will not commit any intentional aggressions upon him. E.g.
Assault, battery, wrongful restraint etc. (Criminal Law)
• Others will act with due care and will not cast upon him an
unreasonable risk of injury. E.g. Negligence(tort)
• He may control for beneficial purposes what they have
discovered and he can appropriate what he has created by his
own labour and what he has acquired under existing economic
order for his own use. E.g. agricultural land and usufruct as
property, patent law
• The people with whom he deals with in the general intercourse of
society will act in good faith. E.g. Defamation, contract
• He must keep the things within his boundary and should look after
those things so that their escape should not harm others. E.g.
Ryland vs. Fletcher case
• In 1942, Pound added three new postulates in the list
which are :
• A person will have security as a job holder. E.g. ruled by
labour law, law of contract
• Society will bear the burden of supporting him when
he becomes aged. E.g. 1/3rd concession in railway
ticket, ceiling of income tax range is more.
• The society as a whole will bear the risk of unforeseen
misfortunes such as disablement. E.g. reservation
quota for physically disabled person in education,
travel etc.
• The jural postulates are to be applied both by the
legislators and judiciary for evaluating and balancing
the various interests and harmonizing them
 Criticisms
• Social engineering has been criticized for the
use of the term engineering, which equates
society to a factory like mechanism
• Ignores the fact that law evolves and develops
in the society according to social needs and
wants.
• The dynamic feature of law is undermined.
• The Conflict of interest’s e.i Social and
Individual.
• No Yardstick to measure interests.

• Overlapping of interests.

• Danger to individual freedom.

INDIAN APPLICATION OF THE
THEORY IN BALANCING OF
INTERESTS
1. Minerava Mills case.
2. Basic Structure.
3. Environment- Sustainable Development
4. IPC- General Exception
5. Domestic Laws- Marriage and Divorce
6. Constitution- emergency and fundamental rights.
7. Art. 14
8. Kameshwarams case law.
REALISTIC SCHOOL

By Asst. Prof. Surabhi Tolani.

 Theories of Law :
American Realism Movement
REALIST THEORY OF LAW

Realist
Movement

American Scandinavian
Realism Realism
WHY “REALISM”?
Because of its approach to study law in its actual working and effects.
“ Law is what the Court has
decided in respect of any
particular set of facts prior to
such decision, the opinion of
lawyers is only a guess as to what
the Court will decide and this
cannot be treated as law unless
the Court so decides by its
judicial pronouncement.”
- Frank Jerome : Modern Law and Mind (1930)
➢ ANTI-THESIS of Legal Idealism theory.
➢ Law as a generalized prediction of ‘What the
Courts will do’.
➢ Evaluation of law in terms of its effect.
➢ Denounces traditional legal rules and
concepts.
➢ No importance given to legislature-enacted
laws.
➢ Only judge-made law upheld as genuine.
Applying the same law, two different judges
give different judgments.
➢ Certainty of law is a myth because it is
connected with the ever-changing society.
AMERICAN
REALISM
 Analytical
Positivism

American
Realism

Sociological
Approaches

➢ Considers the law as it is (Positivism)

➢Law as it stands, is a product of many factors
(Sociological Approach)
➢ Gained force during the term of President
Franklin D. Roosevelt in 19th century.
➢ Represents the latest branch of sociological
jurisprudence.
➢ ‘Movement’ or ‘Historical Phenomenon’, than a
‘School of thought’ – not a definite coherent
theoretical system.
➢ Studies law as it is, as it is in its actual working
and its effects, investigate the realities of modern
society in their relation to modern law.
➢ Mental fathers of the movement-
1) John Chipman Gray
2) Oliver Wendell Holmes
 FEATURES OF REALIST
MOVEMENT
➢ No Realist school, only movement in thought and
work about law.
➢ It means a conception of law in flux and as a
means to social ends. It implies a society which
changes faster than law.
➢ Distrusts traditional legal rules and concepts so
far as they purport what either courts or people
are actually doing.
➢ Accepts the definition of rules as a “generalized
prediction of what the courts will do”
➢ Insists on the evolution of any parts of law in
terms of its effect.
 American Realism and Legal
Positivism

Share one important belief :-

Similar views on the difference
between the ‘law as it is’ and
the ‘law as it ought to be’.
 American Realism and Sociological
Approach

Unlike the sociological approach,

realists are not much concerned about
the ends of law, but their main
concern is on a scientific observation
of law and its actual functioning.
 American Realism and Natural Law

According to Natural Law school, laws

are made by the nature or God itself,
but the Realist school believes that
laws are made by judges or juristic
persons.
 John Chipman Gray
➢ Exponent of the analytical tendency in
jurisprudence.
➢ “The law is what the Court decides”.
➢ Placed the judge in the centre instead of
the statutory legislation – shook the
position of analytical jurisprudence.
➢ Prepared the ground for a more skeptical
approach of the law, which further laid the
ground for Oliver Wendell Holmes’
empirical and skeptical definition of law.
“Take the fundamental question, what constitutes the
law…You will find some text-writers telling you…that it
is a system of reason, that it is a deduction from
principles of ethics or admitted actions, or what not,
which may or may not coincide with the decision. But if
we take the view of our friend, the bad man, we shall
find that he does not care two straws for the action or
deduction, but that does want to know what
Massachusetts or English courts are likely to do in
fact. I am much of his mind. The prophecies of what the
courts will do in fact and nothing more pretentious are
what I mean by the law”

- Oliver Wendell Holmes’ definition of law

 Oliver Wendell Holmes
➢ Distinguished judge and thinker.
➢Described as the intellectual inspiration and spiritual father of
the American Realism Movement.
➢He was skeptical of the ability of general rules to provide the
solution to particular cases.
➢Gave credence to the role of extra-legal factors in judicial
decision making.

➢ Defined law in terms of its consequences and what seemed to

demolish the analytical certainty and any connection between
law and ethical ideals.
➢Sowed the seeds for Realism in a paper called, “The path of
law”.
SCANDINAVIAN REALISM
Scandinavian realism denotes the legal philosophy of a group of scholars who have all
been strongly influenced by Axel Hagerstrom and his critical philosophical writings.
They all agree in denying the possibility of a science of justice or values. To them,
these are pure subjective reactions or reflective of class or political ideology and it is
impossible to construct a science on such a basis. This paradigm shift of Nordic
scholarship dates back to the time of the so-called Uppasala School of philosophy in
the 1920’s and is regarded as a significant legal movement in the Scandinavian
countries, most particularly in Sweden. The relative insularity of the Scandinavian
countries, geographical isolation, immunity from international commerce together
with early national formulations of law, meant that Roman law had little impact on
their civilization. In their substantive law as well as in their legal science, they
remained outside the influence of the major legal systems of the world. This paper
analyses the legal philosophies of scholars known as Scandinavian realists and also
makes an attempt to contrast it with American realism.
AXEL HAGERSTROM

Hagerstrom’s inquiries in to law has been regarded as epoch-

making, at least in Sweden.10 “No one of Lundstedt, Olivercrona
and Ross is wholly self-contained. To understand them, or
effectively criticize them, one must constantly return to
Hagerstrom. They presume the substantial truth in his subtle and
detailed analysis.” The criticism of law can be understood better in
the backdrop of his personal background and general philosophy he
propounded. Hagerstrom revolted against the religious background
in which he was brought up and decided to study philosophy. He
was greatly influenced by the writings of German philosophers and
often used the terminology of German transcendental philosophy in
his philosophical writings. The turmoil of events that took place in
Science, philosophy and politics in the early years of 20th century
had a great impact on his thinking.
 ANDERS VILHEM LUNDSTEDT

Lundstedt, a Swedish legal philosopher, took the most

extreme positions among the followers of Hagerstrom and
maintained that legal approach must be away from
exposition of right and such metaphysical entities. His
first publications were on traditional lines and after
he met his friend and colleague Hagertsron in Uppasala
his views underwent a profound change and he embraced
Hagerstrom’s critical views wholeheartedly. He laughed
at most of the English theories of law and rejected
what is called “the method of justice”. He introduced
his own “the method of social welfare”.
 KARL OLIVERCRONA KARL O
Karl Olivercrona, a pupil of Hagerstrom was a Swedish
lawyer and legal philosopher. . He emphasized the
psychological significance of legal ideas and went on
to say that law exists in a factual sense only. In
simple terms, he contended that law is little more than
psychology. He maintains that it is a symbolic
expression of the fact that the human mind responds in
a certain ways to various forms of social pressure.
Patterns of behavior are moulded by one’s psychological
make up and educational conditioning.36 He stressed the
significance of the monopoly of force as the
fundamental basis of law and concedes that ‘monopoly of
force’ is required for the psychological basis of law
to be effective. But he points out that once a new
regime is established the coercive element is pushed in
to the background and psychological conditioning will
suffice.
 ALF NIELS CHRISTIAN ROSS
Alf Ross, a Danish legal and moral philosopher and
scholar of international law, is one of the leading
exponents of Scandinavian realism. He admits the
normative character of law According to him “a legal
norm is neither true nor false, it is directive.”
Further the norm is directed against the judges rather
than citizens. Ross apparently accepts Hagerstrom’s
analysis of the concept of a right. He contends that
the concept of right as understood in the legal science
is more or less indefinite as it considers a right as a
power of incorporeal nature. The supersensible power
supposedly created by juristic facts is purely
imaginary and the only demonstrable realty in the
situations of right is of the machinery of law. Ross
emphasizes that nothing intervenes between the
conditioning of facts and the legal consequences that
are to follow them. Ross concludes that the words like
‘right’ and ‘ownership’ denote nothing. They are
meaningless words-words without semantic reference.
THANK YOU.
• BY ASST. PROF. SURABHI TOLANI.
 Introduction
• Jurisprudence is the theory and study of law. It studies the origin and concept of
law. Law has a very complex concept. Its understanding varies from people to
people. Everyone has a different understanding of the law. For example, a law
student and lawyer understand the law as a solution of every dispute. An ordinary
citizen understands the purpose of the law is to punish them.

• Historical school of Jurisprudence argued that the law is the exaggerative form of
social custom, economic needs, conventions religious principles, and relations of the
people with society. The followers of this school argued that law is found not made.
The historical school doesn’t believe and support the idea of the natural school of
law which believe that the origin of law is from superior authority and have some
divine relevance.
 Historical school of jurisprudence
• Historical school of jurisprudence deals with the origin and development
of the general principles of law as well as certain important legal
principles which have been imbibed into legal philosophy. It primarily
emerged as a reaction against the natural law school. In fact, Prof. Dias
opines that its reaction against the natural law theories can be said to be
the basis of several important principles of historical jurisprudence.
 The concept and meaning of Historical School of
Jurisprudence

• With the changing needs and nature of persons, the law should be changed. The historical
school follows the concept of man-made laws. ‘Law is formulated for the people and by the
people’ means that the law should be according to the changing needs of the people. And
everyone understands their own need better than anyone else.

• The basic source of the Historical School of Jurisprudence is the habits, a custom of people
which changes according to their needs and requirement. It is also called the continental school
of Jurisprudence.
 Reasons for the Origin of Historical
School of Jurisprudence

• It came as a reaction to the natural school of law.

• It opposes the ideology of the analytical school of jurisprudence.
 Jurists of Historical School of
Jurisprudence
•Edmund Burke
•Montesquieu
•F. K. Von Savigny (1779-1861)
•Sir Henry Maine (1822-1888)
•Georg Friedrich Puchta
 Edmund Burke (1729-1797)

• Evolution of law as an organic process and expression of common faith.

 Montesquieu
• According to Sir Henry Maine, the 1st Jurist to adopt the historical method of
understanding the legal institution was Montesquieu. He laid the foundation of the
historical school in France. According to him, it is irrelevant to discuss whether the
law is good or bad because the law depends on social, political and environmental
conditions prevailing in society. Montesquieu concluded that the “law is the creation
of the climate, local situation, accident or imposture”. He was of the view that law
must change according to changing needs of the society. He did not establish any
theory or philosophy of the relation between the law and society. He suggested
that the law should answer the needs of the place and should change according to
time, place and needs of the people.
• One of the best-known works of Montesquieu was his book ‘The Spirit of laws’. In
this book, he represents his beliefs in political Enlightenment ideas and suggests
how the laws are required to modify according to the needs of people and society.
 Savigny
• Savigny is regarded as a father of the Historical school. He argued that the
coherent nature of the legal system is the usually due to the failure to
understand its history and origin. According to him, the law is “a product of
times the germ of which like the germ of State, exists in the nature of men as
being made for society and which develops from this germ various forms,
according to the environing the influences which play upon it.”:
Friedmann concludes the Savigny’s theory:
• Law is like language which eventually grows.
• Law cannot be of universal validity nor be constructed on the basis
of certain rational principles or eternal principles.
• Law is sui generis. Savigny argued that law is like the language
having its own national character. So, it can’t be universally applied
and varies according to the people. He mentioned this in the self-
written pamphlets “Vom Berufunserer Zeit für Gesetzgebungand
Rechtswissenschaft (On the Vocation of Our Age for Legislation and
Jurisprudence).”
• Law is found or discovered not made. It can’t be made artificially like
the invention of an object.
• Law is found on the basis of consciousness, customs and beliefs of
the people.
 GUSTAV HUGO (1764-1844):
• Law is not the result of legislation not a command of sovereign not a contract
but it is the outcome of the habits of people.
 Sir Henry Maine
• Sir Henry Maine was the founder of the English Historical School of Law.
Savigny’s views of Historical school was carried forward in England by Sir Henry
Maine.

• Major Works by Sir Henry Maine

• The first work of Maine ‘Ancient Law’ was published in 1861.
• He also wrote Village Communities (1871),
• Early History of Institutions (1875)
• Dissertations of Early Law and Custom (1883).
Maine describes the development of law in four stages:

• First stage
• Second stage
• Third stage
• Forth stage
 Georg Friedrich Puchta:
• Puchta was a German Jurist. He was a disciple of Savigny and a great jurist of Historical school of Jurisprudence. Georg Friedrich Puchta’s ideas were more logical and improved than Savigny’s ideas. He

traced the development and evolution of law from the very beginning. His ideas mainly focused on the situation when conflict arises between general will and individual will. In the conflict between general will

and individual will, the state came into existence. And find out the midway to resolve the conflict.

• The main concept of Puchta’s ideas was that “neither the people nor the state alone can make and formulate laws”. Both State and individual are the sources of law.

• Contribution of Puchta

• Puchta gave twofold aspects of human will and origin of the state.

• Despite some points of distinction Puchta and Savigny, he improved the views of Savigny and made them more logical.
 HISTORICAL SCHOOL IN INDIA:
• CONCEPT OF DHARMA
• KAUTILYAS ARTHSHASTRA
• SHRUTI SMRITI
 Conclusion
• Historical School of Jurisprudence describes the origin of law. This school argues that the
law was found not made. The main source of law is Kings Judgment, Customs and habits.
Jurists like Montesquieu, Savigny, Sir Henry Maine, and Georg Friedrich Puchta are the
supporter of the Historical School of Jurisprudence. According to Sir Henry Maine,
Montesquieu was the first jurist of Historical school. Sir Henry Maine was the jurist of
English Historical School. He was more logical and accept the concept of Codification and
legislation.

• Savigny was the father of Historical school. He argued that Law is like language and have
a national character. Law is not universal. While Puchta improved the ideas of Savigny
and argued that both state and people are equally important and source of law.
T HANK YOU
FEMINIST JURISPRUDENCE
 INTRODUCTION:

Feminist jurisprudence is a philosophy of law based on the

political, economic, and social equality of sexes. As a field of legal
scholarship, feminist jurisprudence began in 1960s. It now holds a
significant place in U.S. law and legal thought and influences many
debates on sexual and domestic violence, inequality in the
workplace, and gender-based discrimination. Through various
approaches, feminists have identified gendered components and
gendered implications of seemingly neutral laws and practices.
Laws affecting employment, divorce, reproductive rights, rape,
domestic violence, and sexual harassment have all benefited from
the analysis and insight of feminist jurisprudence.
 History:

Feminists believe that history was written from

a male point of view and does not reflect
women's role in making history and structuring
society. Male-written history has created a bias
in the concepts of human nature, gender
potential, and social arrangements. The
language, logic, and structure of the law are
male-created and reinforce male values.
 ORIGIN OF FEMINISM:
The first wave of feminism took place in the late nineteenth and early
twentieth centuries, emerging out of an environment of urban
industrialism and liberal, socialist politics. The goal of this wave was to
open up opportunities for women, with a focus on suffrage. The wave
formally began at the Seneca Falls Convention in 1848 when three
hundred men and women rallied to the cause of equality for women.
Elizabeth Cady Stanton (d.1902) drafted the Seneca Falls Declaration
outlining the new movement's ideology and political strategies.
The second wave began in the 1960s and continued into the 90s. This
wave unfolded in the context of the anti-war and civil rights movements
and the growing self-consciousness of a variety of minority groups
around the world. The New Left was on the rise, and the voice of the
second wave was increasingly radical. In this phase, sexuality and
reproductive rights were dominant issues, and much of the movement's
energy was focused on passing the Equal Rights Amendment to the
Constitution guaranteeing social equality regardless of sex.
 Schools of feminist jurisprudence

• Liberal feminism,
• Difference or Cultural feminism,
• Radical feminism,
• Postmodern feminism,
• Black feminism,
• Lesbian feminism,
• Marxists feminism.
• Socialist feminism.
 Major Schools of thought:

• 1. Liberal feminists:
• Challenge the assumption of male authority
and superiority and seek to erase gender
based distinctions recognized by law.
• Asserts that women are similar to men in their
ability to operate in public world.
• Focuses on equal opportunity to make their
own choices.
Criticisms to Liberal feminism
Criticism on Liberal feminism
Criticisms to Liberal feminism
• Liberal feminism as a study allows too
much of its forces to fall on a
metamorphosis of women into men hence
disregard the traditional role of women.

• By focusing on the individual it puts over

emphasis on the rational instead of the
emotional state whereas a human is
intrinsically both, and in doing so
discredits the importance of a community.
 2. Difference or Cultural feminism

• Focuses on women’s differences from men.

• Differences on physical and physiological aspect.
– Women are part of men and men are separate from women.
• Challenges the idea of patriarchal male domination.
• Claims that law reflects male values and needs to
incorporate ignored women’s values.
• Some argues there should be separate law for men and
women.
• If the law recognizes special rights for women, women can
enter the public world on equal terms. Among the sexed
rights:
– Right to dignity.
– Right to virginity
– Right to motherhood
 Criticism
Criticism on difference
on difference or Cultural
or Cultural feminism
feminism
1. The picture of women’s separate identity
supports the stereotyped view about
women.
2. It relies on women’s differences from men as
the basis for treating them more favorably
than men. Because genuine sexual equality
will not be until women’s social and
economic status is on par with men’s.
3. Argues special treatment as means to
compensate the disadvantages that
women suffer.
 3. Radical feminism
• Power and sexuality are the central focus on radical feminism.
• Believes that women is a class dominated by men as another
class.
• Emphasizes the patriarchal roots of inequality between men
and women.
• Radical feminism views patriarchy as dividing rights, privileges
and power primarily by gender, and as a result oppressing
women and privileging men.
• Radical feminists tend to be more militant in their approach
(radical as "getting to the root") than other feminists are.
• Radical feminism opposes existing political and social
organization in general because it is inherently tied to
patriarchy.
R a d i c a l feminism
▪ This type of feminists focus on women as
a class, and particularly a class that is
dominated by another class, the male
class
▪ Unlike liberal feminists radical feminism
builds its arguments that focus the
differences between men and women,
example of radical feminists include
Catherine Mackinnon, Christine Littleton,
 4. Postmodern
4. Postmodern feminism
feminism
• Postmodern feminism is an approach to feminist
theory that incorporates postmodern and post-
structuralist theory
• It sees itself as moving beyond the modernist polarities
of liberal feminism and radical feminism.
• Believes that there is no universal standards of truth
and justice discovered by human reason.
• There are only different, socially conditioned and
subjective interpretations.
• They wishes to make feminist jurisprudence more
inclusive and pluralistic.
Postmodern Feminism

▪ This type eschews around the idea of unitary

truth and of objective reality, it believes in
categories and especially the gender
categories are social constructs, these
constructs are products of the patriarchy and
hence needs feminist reconstruction. it put
emphasis that there is no such thing as the
essential woman or a woman’s point of view
Criticisms

▪ It is argued that it runs the risk of

undercutting the basis of a politics of
action based upon gender indifference
through its very anti essentialism.
▪ Simone de Beauvoir argued that male
definitions of the woman shouldn’t hold
on that women should define themselves
outside the male dyad; she argued that
women must be the subject rather than the
object of analysis.
 5. Marxist Feminism

▪ This type focuses on the social institutions of

private property and capitalism to explain
and criticize gender inequality and
oppression.
▪ It states that private property gives rise to
Economic inequality, dependence, political
and domestic struggle between the sexes and
it is the root of women’s oppression
Criticisms

▪ Radical feminists argue that elements of

modern society (law, religion and politics are
all the product of males hence have a
patriarchal character, thus the best solution
for women’s oppression would be to treat
patriarchy not as a subset of capitalism but as
a problem on its own, hence eliminating
women oppressions would be to eliminate all
forms of male domination
 6. Socialist feminism

▪ This type focuses on the public and private

spheres of a woman’s life, and argues that
liberation can only be achieved by working to
end both the economic and cultural sources
of women’soppression
 7. Lesbian feminism

Lesbian feminism is a cultural

movement and critical perspective, most
influential in the 1970s and early 1980s (primarily
in North America and Western Europe), that
encourages women to focus their efforts,
attentions, relationships, and activities towards
their fellow women rather than men and often
advocates lesbianism as the logical result
of feminism.
 8. Black feminism:
Black feminist theory contends that black women have an acute
understanding of the negative impacts of sexism, racism, and class
discrimination. Furthermore, race, gender, and class discrimination
are all aspects of the same system of hierarchy, namely the
"imperialist white supremacist capitalist patriarchy". Due to their inter-
dependency, they combine to create something more than
experiencing racism and sexism independently. The experience of
being a black woman, then, cannot be grasped in terms of being
black or of being a woman but must be illuminated
via intersectionality, a term coined by legal scholar Kimberle
Crenshaw in 1989 to describe that each identity—being black and
being female—should be considered independently, but also for their
interaction effect, while understanding that intersecting identities
deepen and reinforce one another, and potentially lead to aggravated
forms of inequality.
 FEMINISM IN INDIAN
PERSPECTIVE:
ART. 14
ART.15(3)
ART. 39a & 39d
POSCO
DV ACT
PCPNDT ACT
 SOME IMPORTANT DECIDIONS:

• In the case of Bodhisattwa Gautama v. Subhra

Chakraborty, the court talked about the need for laws which
shall curb the practices of dominance analysis that is found in our
patriarchal society. The court held that Unfortunately, a woman,
in our country, belongs to a class or group of society who are in a
disadvantageous position on account of several social barriers
and impediments and have, therefore, been the victim of tyranny
at the hands of men it was held that certain laws helps to soothe
the position of women in the society and further they are very
much constitutional valid as they come under the legitimate title
of positive discrimination which is fundamentally the rule of
equal protection.
• Vishakha v. state of Rajasthan 1997
• Mukesh v. state of NCT Delhi 2012
▪Thank You.
Critical Race Theory
BY ASST. PROF. SURABHI TOLANI.
Critical Race Theory
 Definitions:

Roy L. Brooks defines CRT in 1994 as: A collection of critical stances against the
existing legal order from a race-based point of view.

Richard Delgado, a co-founder of CRT, defines CRT in 2017 as: A collection of

activists and scholars interested in studying and transforming the relationship
among race, racism, and power.

Tommy J. Curry defines CRT as: The view that the law and legal institutions are
inherently racist and that race itself, instead of being biologically grounded and
natural, is a socially constructed concept that is used by white people to further
their economic and political interests at the expense of people of color.
 What Is Critical Race Theory:

The critical race theory (CRT) movement is a collection of activists and scholars interested in studying
and transforming the relationship among race, racism, and power. The movement considers many of
the same issues that conventional civil rights and ethnic studies discourses take up, but places them in a
broader perspective that includes economics, history, context, group- and self-interest, and even
feelings and the unconscious. Unlike traditional civil rights, which embraces incrementalism and step-
by-step progress, critical race theory questions the very foundations of the liberal order, including
equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.
Although CRT began as a movement in the law, it has rapidly spread beyond that discipline. Today,
many in the field of education consider themselves critical race theorists who use CRT’s ideas to
understand issues of school discipline and hierarchy, tracking, controversies over curriculum and history,
and IQ and achievement testing. Political scientists ponder voting strategies coined by critical race
theorists. Ethnic studies courses often include a unit on critical race theory, and American studies
departments teach material on critical white studies developed by CRT writers. Unlike some academic
disciplines, critical race theory contains an activist dimension. It not only tries to understand our social
situation, but to change it; it sets out not only to ascertain how society organizes itself along racial lines
and hierarchies, but to transform it for the better.
 Basic Tenets of Critical Race
Theory:
 racism is ordinary, not aberrational—“normal science,”.
 most would agree that our system of white-over-color ascendancy
serves important purposes, both psychic and material.
 “social construction”.
 5 BASIC TENETS OF CRT

the notion that racism is ordinary and not aberrational;

the idea of an interest convergence;

the social construction of race;

the idea of storytelling and counter-storytelling; and

the notion that whites have actually been recipients of civil rights
legislation.
THANK YOU.
JURISPRUDENCE
TYPES OF LEGAL RIGHTS

by- Surabhi Tolani.

 LEGAL RIGHTS
• According to Salmond : “ A right is an interest
recognized and protected by a rule of right. It
is any interest, respect for which is a duty, and
the disregard of which is a wrong “.
• According to Holland, a right is “ a capacity
residing in one man of controlling , with the
assent and the assistance of the State, the
actions of others”.
 ESSENTIALS OF A LEGAL RIGHTS
• The first essential element is that there must
be a person who is the owner of the right.
• A legal right accurse against another person or
persons who are under a corresponding duty
to respect that right.
• Content or substance.
• The object of the right.
• Title of the right.
 KINDS OF LEGAL RIGHTS
• Perfect and Imperfect Rights
• Positive and Negative Rights
• Real and Personal Rights
• Rights in Rem and Rights in Personam
• Proprietary and Personals Rights
• Inheritable and Uninheritable Rights
• Rights in Re Propria and Rights in Re Aliena
• Principal and Accessory Rights
• Legal and Equitable Rights
• Primary and Secondary Rights
• Public and Private Rights
• Vested and Contingent Rights
• Servient and Dominant Rights
• Municipal and International Rights
• Ordinary and Fundamental Rights
• Fus ad rem
 Perfect and Imperfect Rights
• According to Salmond, a perfect right is one which
corresponds to a perfect duty. A perfect duty is one
which is not merely recognized by law but also
enforced by law.
• In all fully developed legal systems, there are rights
and duties which, though recognized by law, are not
of perfect nature. Those rights are called Imperfect
rights. i.e., claims barred by the lapse of time.
 Positive and Negative Rights
• According to Salmond, a positve right
corresponds to a positive duty and entitles its
owner to have something done for him without
the performance of which his enjoyment of the
right is imperfect and incomplete.
• Negative rights have negative duties
corresponding to them and enjoyment is
complete unless interference takes place. The
majority of negative rights are against all the
world.
 Real and Personal Rights
• According to Salmond, a real right
corresponds to a duty imposed upon persons
in general. A real right is available against the
whole world.
• A personal right corresponds to a duty
imposed upon determinate individuals. A
personal right is available only against a
particular person.
 Rights in Rem and Rights in Personam

• Jus in rem means a right against or in

respect of a thing. A right in rem is available
against persons generally.
• Fus in personam means a right against or in
respect of a person. A right in rem is available
against the whole world but a right in
personam is available against a particular
individual only.
 Proprietary and Personals Rights
• The proprietary rights of a person include his
estate, his assets and his property in many
forms. Proprietary rights have some economic
or monetary value. Examples of proprietary
rights are the right to debt, the right to
goodwill, the right to patent, etc.
• Personal rights are not valuable. Personal
rights are merely elements in his well-being.
They possess merely judicial importance.
 Inheritable and Uninheritable Rights

• A right is inheritable if it survives its owners.

Proprietary rights are inheritable. The heirs of
a proprietary owner become owners after his
death.
• A right is uninheritable if it dies with him.
Personal rights are uninheritable. In the case
of personal rights, they die with the owner
and cannot be inherited.
 Rights in Re Propria and Rights in Re Aliena
• According to Salmond, a right in re aliena or
encumbrance is one which limits or derogates from
some more general right belonging to some other
person in respect of the same subject matter. The
pledgee has jus in re propria or a right over his own
property. Rights in re aliena are rights over the
property of another persons.All other rights are rights
in re propria.
• The owner of a chattel has jus in re propria or a right
over his on property. Rights in re propria are rights in
one’s own property. My right of ownership of my land
is a right in re propria.
 Principal and Accessory Rights

• Principal rights exist independently of other

rights.
• Accessory rights are appurtenant to other
rights and they have a beneficial effect on the
principal rights.
 Legal and Equitable Rights

• Legal rights were recognized by common law

courts and equitable rights were recognized
by the Court of Chancery. The Judicature Act
of 1873 put an end to the distinction between
legal and equitable rights.
 Primary and Secondary Rights
• Primary rights are also called antecedent,
sanctioned or enjoyment rights.
• Secondary rights are called sanctioning ,
restitutory or remedial rights.
• Primary rights are those rights which are
independent of a wrong having been committed.
They exist for their own sake. They are
antecedent to the wrongful act or omission.
• Secondly rights are a part of the machinery
provided by the state for the redress of injury
done to primary rights.
 Public and Private Rights

• A public right is possessed by every member

of the public.
• A private right is concerned only with
individuals.
 Vested and Contingent Rights
• A vested right is a right in respect of which all
events necessary to vest it completely in the
owner have happened. No other condition
remains to be satisfied.
• In the case of a contingent right, only some of
the events necessary to vest the right in the
contingent owner have happened.
 Servient and Dominant Rights

• A servient right is one which is subject to an

encumbrance. The encumbrance which
derogates from it may be contrasted as
dominant.
• The land for the beneficial enjoyment of
which the right exists is called the dominant
heritage and the owner or occupier thereof is
called the dominant owner.
 Municipal and International Rights
• Municipal rights are conferred by the law of a
country. All municipal rights are enjoyed by
the individuals living in a country.
• International rights are conferred by
international law. The subjects of international
right are the persons recognized as such by
international law.
 RIGHTS AT REST AND RIGHTS IN MOTION

• According to Holland, when a right is stated

with reference to its ‘orbit’ and its
‘infringement’, it is a right at rest.
• Causes by which rights are either connected
or disconnected with persons are discussed
under rights in motion.
ORDINARY & FUNDAMENTAL RIGHTS
 FUS AD REM
• A jus as rem is a right to a right. The person of
inherence has the right to have some other
right transferred to him. The jus ad rem is
always a right in personam. If I sell my house
to K, K acquires a right against me to have the
house transferred to himself. The right of K is
said to be a jus ad rem. Whether the right to
be transferred is a right in rem or only a right
in personam, the jus ad rem is always a right
in personam.
THANK YOU
Laws of Property Under
Jurisprudence
BY ASST. PROF. SURABHI TOLANI.
 INTRODUCTION:

The term property is commonly used to define the objects which are owned.
In other words, property denotes those things in which right of ownership
can be expanded. The term property includes both living and non-living
things. Lands, chattels, shares, and debts are included in the property.

In a wider sense, the term includes all those rights which a person has or can
be exercised. For instances, right to life, personal liberty, reputation and debts
are included in the property.
THANK YOU.
LAW OF OBLIGATION
BY ASST. PROF. SURABHI TOLANI
 Meaning:

The Term "Obligation" means to do or not to

do an act, or to perform some work or an
act. There are two kinds of obligation which
are Sole Obligation and Solidary Obligation.
Solidary Obligations is of Three Kinds.
 Definitions of Obligation:

According to According to Sir John Salmond" An obligation, therefore, may be defined as a

proprietary right in personam or a duty which corresponds to such a right." Obligations are all
in one class of duties, namely those which are co-relatives of rights in personam.

According to Holland, An obligation as its entomology denotes is a tie by one person is bound
to perform some act for the benefit of another. In some cases, the two parties agree thus to
be bound together; in other cases as they are bound without their consent.

According to Savigny an obligation is the control over another person, yet not over his person
in all respects (in which case his personality would be destroyed), but over single acts of his
which must be conceived of subtracted from his free will and subjected to our will
Savigny - According to Savigny an obligation is the control over another
person, yet not over his person in all respects (in which case his personality
would be destroyed), but over single acts of his which must be conceived of
subtracted from his free will and subjected to our will.

Paton - According to Prof. Paton, an obligation is that part of law which creates
right in personam.

Anson - According to Anson, "an obligation is a control exercisable by definite

persons over definite persons for the purpose of Definite acts or forbearance
reducible to a money value"
 Kinds of obligations

(a) Sole Obligation -

Sole obligation is one in which there is one creditor and one debtor. e.g. A
promise to B to pay $100. In this example, there is only one creditor and one
debtor.

(b) Solidary Obligation -

In case of Solidary Obligation there are two or more debtors owe the same thing
to the same creditor. There are three kinds of solidary obligation see kinds of
solidary obligation. In English law, solitary obligations are three distinct kinds
which are- several obligation, joint obligations and joint and several obligations.
(a) Several solidary obligations -

Solidary obligations are several when, Although the thing owed in the same in each case, there are as many distinct
obligations and causes of action as there are debtors.

(b) Joint solidary obligation -

Solidary obligations are joint when though there are two or more debtors, there is only one debt or other cause of
action, as well as only one thing owed. The creditor must sue all of them and release of one operates as a release of
others. For example when a Firm contracts a Debt all the partners are jointly liable. In English law, the liability of joint
debtors is joint while in India it is joint and several

(c) Joint and several solidary obligations -

Certain solidary obligations are both joint and several. These obligations stand Midway between the above two. In
this the creditor can sue one, some or all of them and release of one will not operate as a release of all other feasors.
for example liability of joint tort committing the Tort jointly or two or more trustees jointly committing the same breach
of Trust or joint debtors under Indian law.
 Sources of Obligation

(1) Contractual obligation (obligations arising from contract) - Contractual obligations are those
which are created by contracts or agreements. These obligations create rights in personam between
the parties. The rights so created are generally proprietary rights. Sometimes a contract creates rights
which are not proprietary though they are in personam.

(2) Delictual Obligation (obligations arising from tort) -

Delictual obligations arises from tortious liability. According to Salmond, " A Tort may be defined as
a civil wrong for which the remedy is an action for damages and which is not solely a breach of contract
or the breach of Trust or other merely equitable obligations. Delictual obligations are those in which a
sum of money to be paid as compensation for a tort
(3) Quasi-contractual obligations (obligations arising from quasi-contract) -
The term "Quasi" is a Latin word which, which means "as if" or "similarly". Quasi-contract is not a real contract entered
into by the parties intentionally. It resembles a contract, in which law imposes an obligation on a person to perform an
obligation on the ground of equity. Quasi-contract is based on the principle of equity that "A person shall not be allowed to
enrich himself unjustly at the expense of another". In other words, A person should not receive or accept any benefit
unjustly. If so, he has an obligation it back to the right owner. Such obligations is called Quasi-contractual obligation.

Example - "X" leaves his Bag at Y's house by mistake. "Y" has Quasi-contract obligation to return it to "X“

(4) Innominate obligation -

Innominate obligations- Innomited obligations are all the obligations which are
other than those falling under the heads of contractual obligation, delictual obligations
and Quasi-contractual obligation.

Examples - Obligations of trustees towards their beneficiaries

THANK YOU.
Ownership
By Asst. Prof. Surabhi Tolani.
 Meaning:

Ownership refers to the relation that a person has with an object

that he owns. It is an aggregate of all the rights that he has with
regards to the said object. These rights are in rem, that is, they
can be enforced against the whole world and not just any specific
person. The concept of ownership flows from that of possession.
In the primitive societies, there was no idea of ownership. The
only concept that they identified with was that of possession. It
was only after they started settling down by building homes and
cultivating land that they developed the idea of ownership.
 Definitions

Austin- “a right indefinite in point of user unrestricted in point

of disposition and unlimited in point of duration over a
determinate thing.”

Holland defines ownership as ‘a plenary control over an object’.

According to Holland, an owner has three rights on the object
owned. They are (i) Possession (ii) Enjoyment (iii) Disposition.
 Characteristics of ownership:
Right to possess.

Right to possess the thing, which he owns.

Right to use and enjoy.

Right to Consume, destroy (liberties) or alienate.

Perpetual right / Indeterminate Duration

Actual right

Ownership has a residuary character

 Kinds of Ownership

1.Corporeal and Incorporeal ownership

2. Sole and co- ownership

3.Trust and beneficial ownership

4. Legal and equitable ownership

5. Absolutely and limited ownership

THANK YOU.
PO SSE SSIO N

By- Asst. Prof. Surabhi Tolani

 INTRODUCTION

"Possession" literary means physical control over

a thing or an object. It expresses the closest
relation of fact that can exist between a thing and
the person, who possess it. In law, possession
means it includes not only physical control over a
thing but also an intention to exercise that physical
control.
 D EF I N I TI O N

❖ Sir Fedrick Pollock’s

“In Common speech a man is said to possess or to
be in possession of any thing of which he has the
apparent control or form the use of which he has

the apparent power of excluding others”

 D EF I N I TI O N

❖ JOHN SALMOND
“Possession is the continuing exercise of a
claim to the exclusive use of an object.”
ESSENTIALS OF POSSESSION:

Subject matter

Physical control

Intention

Knowledge.
 CATEGORIES OF POSSESSION

1: Possession in Fact

Possession in fact is actual or physical possession. It is

physical relation to a thing.
 CATEGORIES OF POSSESSION

2: Possession in Law

Possession in law means possession in the eye of law.

It means a possession which is recognized and
protected by law.
 MODES OF POSSESSION

Taking:
Taking implies an Act exclusively on the part of the
person who physically takes the Possession. It is
acquisition of the Possession without the consent of
previous Possessor. It is the possession without the
consent of the Possessor. Sometimes it is said to be
unilateral act. Transferee acquires the possession without
the knowledge or consent of the former Possessor of the
thing. It is usually possessio-civilis. It may or may not be
lawful. If it is lawful then it is legal possession.
i.e. possessio-juri.
 MODES OF POSSESSION

Delivery

Delivery completes voluntary act from one

person to another. The transferor gives actual
position to the transferee. It is usually a lawful
mode of possession. Delivery may be actual of
constructive. In actual delivery the thing is
physically delivered.
 KINDS OF POSSESSION

1. De facto Possession :

De facto Possession exists where the thing is in the

immediate occupancy of a party. The person in de facto
possession has the physical control of the thing to the
exclusion of others and has Animus and Corpus over the
material object. De facto possession may be described as
actual Possession.
 KINDS OF POSSESSION

2. De jure Possession :

De jure possession can be described as posssession

in law. De jure possession exists when person claims a thing
as his own in natural normal legal manner by occupying a
thing without any dispute as to his legal right to possess and
enjoy the thing. Legal possession may exist with or without
property in possession. In case of De jure possession it is just
possible that a man have ceased to live in a house but
without intending and to abandon it for good as the owner of
the house.
 KINDS OF POSSESSION

3. Mediate Possession :

It is the Possession of a thing through another, either through

his friend, servant for agent. As the thing remains, in
possession with another, the possessor has lesser degree of
physical control over such thing.
Illustration :
a) 'X' has a car, which he leaves with his driver. The
possession of the driver will be immediate whereas the
Possession of 'X' will be mediate.
 KINDS OF POSSESSION

4. Immediate Possession :
It is also called as Direct Possession. Direct or primary
possession by a person over a particular object, which
acquires or gets directly or personally. In immediate
possession, as the thing is in possession of the possessor
directly, he has higher degree of control over such thing.
It means that there is no other person holding the thing.
Illustration :
a) 'X' has a car and he keeps it in his garage, this
constitutes immediate possession.
 KINDS OF POSSESSION

5. Corporeal Possession :

Those things, which are having physical or material existence,

wherein direct relationship with the thing, are possible. for
example, House has physical existence which can be
perceived by our senses. The possession in the house therefore
is Corporeal Possession. Therefore corporeal possession is the
possession of material things, movable as well as immovable
such as the Car , book , pen, wristwatch, etc.
 KINDS OF POSSESSION

6. Incorporeal Possession :

It means Possession of immaterial or intangible things.

These are the things, which do not have physical
existence and therefore cannot be perceived by our
senses. Therefore possession in respect of these
things is known as incorporeal possession. for
example - Copyright, Trademark, Patent, Goodwill
etc.
 KINDS OF POSSESSION

7. Adverse Possession :

It means holding the land on his own

behalf of some other person. if adverse
possession continues peaceful and
undisturbed for that number of years, he can
claim ownership and the true owner's right(
ownership) gets extinguished.
 KINDS OF POSSESSION

8. Constructive Possession :

Constructive possession is not actual

possession it is a possession in law and not
possession in fact. According to Pollock and
Wright, it is a possession which arises only by the
construction of law.

Example : The delivery of the keys of a building.

BRIDGES VS. HAWKESHWORTH 1851

Fact:
In this case a customer found some
money on the floor of a shop.

Issue:
To whom the money belong ?
BRIDGES VS. HAWKESHWORTH 1851

Held:
The court applied the rule of ‘finders-
keeper’ and awarded possession of the money
to him rather than to the shop-keeper.

The ratio decidendi of this case is that finder

of goods
is the keeper i.e., has right of possession over it.
SOUTH STAFFORDSHIRE
WATERWORKS CO. VS SHARMAN ,
1896
Fact:
In the instant case Plaintiff Company
appointed defendant servant to clean out a pond
upon their land and in doing so he found certain gold
ring at the bottom of it.
Dispute arose between plaintiff Company and the
defendant
servant as to the possession of the gold ring.

Issue:
To whom the Gold ring belong?
SOUTH STAFFORDSHIREWATERWORKS
CO. VS SHARMAN , 1896

Held:
The plaintiff Company was in first
possession of the gold ring and is not the
defendant, who acquired no title to them.
It was observed that the possession of land
carries with it in general possession of
everything which is attached to or under
the land.
 ELVES VS BRIGG GAS CO. 1886

Fact:
In this case the plaintiff was the owner of the land.
He gave his land to defendant Company on lease for the
purpose of excavation and erection of gas works thereon.
During the course of excavation one of the man of the
defendants Company found a pre-historic boat buried 6 feet
below the surface.

Issue:
Issue before the Court was whether the boat
belonged to the landlord or lessee.
 ELVES VS BRIGG GAS CO. 1886

Held:
J. Chitty observed that the landlord was entitled to
the boat against the Company though it was discovered by
the Company. It was observed that it was immaterial that
the landlord was not aware of the existence of the boat. He
was in possession of the ground not merely of the surface.
Hence everything that lay beneath the surface down to the
center of the earth consequently in possession of the boat. It
did not matter that the plaintiff was not aware of the
existence of the boat.
POSSESSORY REMEDIES

Possession is nine points in law.

1)Possession is an Evidence of ownership, Section
110 of Indian Evidence Act 1872- Provides ' when
any question is whether any person is owner of
anything of which he is shown to be in possession,
the burden of proving that he is not owner is on the
person who affirm that he is not the owner.

2)The possession even if it is wrongful is a good

title against the whole world except the true
owner.
POSSESSORY REMEDIES

3)Section 47 sale of Goods Act: right of the seller

to lien. The seller if unpaid seller is and if the
Possession is still with the seller he can retain the
goods.

4)Right of Bailee in contract of bailment: Indian

Contract Act 1872, Section. 170, 171. The Bailee
too has a right to lien the goods bailed to unless he is
paid remuneration by Bailor till then he is entitled to
keep the position of the goods.
POSSESSORY REMEDIES

5) In offence of theft in IPC Section

378: Possession is essential element. Even though
the possession was wrongful and the Possession of
such thing is taken without the consent of the
possessor with dishonest intention.

6)Possession is protected as a part of law of

tort. Law protects possession not only from
disturbance by force but from disturbance by fraud.
The protection thus afforded as a part of the law of
tort.
 CO N CLUSIO N

Possession is the most basic relation between man

and a thing. Possession is prima facie a proof or
an evidence of ownership there is no fixed or
precise definition of possession because it is legal
as well factual concept. The four essentials of
possession are subject matter of possession,
physical control, intention and knowledge.
Possession is nine points in law and law provides
remedies to person having possession.
 THE E N D

Thank You.
 Persons 1

By Asst.Prof. Surabhi Tolani.

 PERSON

The term ‘person’ is derived from the Latin term ‘Persona’

which means those who are recognized by law as being capable
of having legal rights and being bound by legal duties. It means
both- a human being, a body of persons or a corporation or
other legal entity that is recognized by law as the subject of
rights and duties.
Savingy has defined person as the subject or bearer of right. But
Holland has criticized this definition on the ground that persons
are not subject to right alone but also duties. He says: the right
not only resides in, but is also available against persons. There
are persons of incidence as well as of inherence.
 Definitions :

1) Salmond - " A person is any being whom the law regards as

capable of rights and bound by legal duties.
2) Savigny defines the term person as the subject or bearer of a
right.
3) According to Gray A person is an entity to which rights and
duties may be attributed.
4) According to Austin the term 'person' includes physical or
natural person including every being which can be deemed
human.
5) According to Section 11 of the Indian Penal code the word
person includes any company or association, or body of Persons,
whether Incorporated or not.
 According to Salmond

A person is any being whom the law regards as

capable of rights or duties .Any being that is so
capable is a person ,whether a human being or
not and no being that is not so capable is a
person ,even though ,he be a man .persons are
the substances of which rights and duties are the
attributes .It is only in respect that person
possesses juridical significance and this is the
exclusive point of view from which personality
receives legal recognition.
 Legal status of lower animals
The only natural persons are human being

Beast are not persons, either natural or legal

They merely thing

Object of legal rights and duties but never the subject of them.

They are not recognized by law

Law is made for men and allows no fellowship or bonds of obligation

between men and lower animals.
Cases in which beast may be thought
to possess legal rights

Cruelty to animals is a criminal offence

A trust for the benefit of particular classes of

animals ,is valid and enforceable as a public and
charitable trust.

Ex. A provision for the establishment and

maintenance of a home for stray dogs or broken
down horses.
 Legal Status of Dead persons

The personality of human being commences its existence on birth

and ceases to exit at death.

Dead are no longer persons in the eye of law.

They have no rights because they no interest

Without conferring rights upon the dead ,law recognizes and takes
account after the death of a person of his desires and interests when
alive.
Three things in respect of which anxieties
of living men extend even after death

1. His body

2. His reputation

3. His estate.
The reputation of a dead person
receives some degree of protection
from criminal law.

Williams v. Williams
 Status of unborn person

Unborn person possess legal personality

There is nothing in law to prevent a man from owning

property before he is born

His ownership is contingent as he may never be born at all,

but it is a real and present ownership

No testator can direct his fortune to be accumulated for a

hundred years and then distributed among his descended
To what extent an unborn person can posses
personal and proprietary rights is a somewhat
unsettled question all right of unborn person

whether personal and proprietary ,all are

contingent on his birth as a living human being.

A posthumous child may inherit , but if he dies in

the womb or still –born ,his inheritance fails to
take effect and no one can claim through him
 Corporate Personality

Legal personality is an artificial creation of law.

Entities recognized by law are capable of being
parties to a legal relationship. A natural person is a
human being whereas

Legal persons are artificial persons, such as a

corporation, created by law and given certain legal
rights and duties of a human being; a being, real or
imaginary, who for the purpose of legal reasoning is
treated more or less as a human being
 Theories of Juristic Personality

Fiction Theory – This theory was put forward by

Von Savigny, Salmond, Coke, Blackstone, and
Holland etc. According to this theory, the
personality of a corporation is different from that
of its members. Savigny regarded corporation as
an exclusive creation of law having no existence
apart from its individual members who form the
corporate group and whose acts are attributed to
the corporate entity.
As a result of this, any change
in the membership does not
affect the existence of the
corporation. It is essential to
recognize clearly the element
of legal fiction involved in this
process.
 Concession Theory

This theory is concerned with the Sovereignty of a State. It pre-supposes that

corporation as a legal person has great importance because it is recognized by the
State or the law

According to this theory, a juristic person is merely a concession or creation of the

state.

Nonetheless, it is obvious that while the fiction theory is ultimately a

philosophical theory that a corporation is merely a name and a thing of the
intellect, the concession theory is indifferent to the question of the reality of a
corporation in as much as it focuses only on the source (State) from which the
legal power of the corporation is derived.
Group Personality Theory or Realist
Sociological Theory
This theory was propounded by Johannes Althusius
and carried forward by Otto Van Gierke. This group
of theorists believed that every collective group has
a real mind, a real will and a real power of action. A
corporation therefore, has a real existence,
irrespective of the fact whether it is recognized by
the State or not. The main defect of the fiction
theory according to the realist jurists was the
ignorance of sociological facts that evolved around
the law making process.
The Bracket Theory or the Symbolist
Theory
This theory was propounded by Rudolph Ritter
von Jhering (also Ihering). According to
Ihering, the conception of corporate
personality is essential and is merely an
economic device by which we can simplify the
task of coordinating legal relations. Hence,
when necessary, it is emphasized that the law
should look behind the entity to discover the
real state of affairs. This is also similar to the
concept of lifting of the corporate veil.
 Purpose Theory or the theory of
Zweck Vermogen
The advocates of this theory are Ernst Immanuel
Bekker and Alois von Brinz. This theory is also
quite similar to the fiction theory. It declared that
only human beings can be a person and have
rights. This theory also said that a juristic person
is no person at all but merely a “subjectless”
property destined for a particular purpose. There
is ownership but no owner. Thus a juristic person
is not constructed round a group of persons but
based on an object and purpose.
Kelsen’s Theory of Legal Personality

He said that there is no difference

between legal personality of a
company and that of an individual.
Personality in the legal sense is
only a technical personification of a
complex of norms and assigning
complexes of rights and duties.
 Advantages of Incorporation
Collective ownership and collective action are cumbersome in law

Common interest vested in them and to have act commonly in the

management and protection of that interest.

Independent corporate existence

Successive existence

Owing ,enjoying and disposing of property

A freely transferable share

 Disadvantages of Incorporation:

Lifting of corporate veil.

Commission of fraud.

Company as Agent or Trustee

Thank you
 TITLE
BY ASST. PROF. SURABHI TOLANI.
 Title in Jurisprudence:

Title is a link between a person and an object to establish

ownership of property. A title is the de facto antecedent of
which the right is the de jure consequent. Right of
possession on ownership comes in term of de facto first
and later de jure. For example, I have a watch on my
hand. How it can be said that it is my, or I have title over
it. I have either purchased it, or someone has gifted me,
or I have inherited it from elsewhere. Title is created even
of stolen objects. It is right of ownership in fact and in law
over property.
 Kinds of Title:

KINDS

Investitive Divestitive Alienative Extinctive

facts facts right right
1. Investitive Facts or Title: Investiture facts create rights. They are titles. But a
right may be created de novo, i.e., it may have no previous existence, or it may be
created by transfer of an existing right. In the former case it is called original and
in the latter derivative. The catching of fish is an original title of the right of
ownership, while the purchase of them is a derivative title.

2. Divestitive Facts: The facts that take away, or cause the loss of, rights, are
termed divestiture facts. They may be extinctive or alimentative. The former are
those which divest a right by destroying it; the latter divest a right by transferring
it to some other owner. The surrender of a lease to the lesser divests the rights of
the lessee by destroying the lease and it is an extinctive fact. When, however, the
lease is transferred to some other person, it divests one owner of the particular
right and creates rights in another. Derivative titles and alienative facts are merely
the same facts looked from a different point of view.
CONT. Divestitive Facts

The transfer of a right involves the investiture of a right in

the transferee and the divestiture of a right from the
transferor. Hence what is a derivative title in the
transferee is an alicnative fact with the transferor.
Purchase is a derivative title and sale is an alicnative fact.
In Austin’s view a title is any fact through which the law
confers or extinguishes a right or imposes or exonerates
from a duty. This conflicts with the popular sense of the
term “title” where it is used to describe the circumstances
by virtue of which a right is acquired.
3. Dispositive Facts:
Bentham called “dispositive facts” to represent the
facts whereby rights or duties are created, transferred
or extinguished. Dispositive facts, according to him,
may be “investitures”, “divestiture” or “translative”.
Investitive facts create rights or impose duties,
divestiture facts terminate rights or relieve from
duties and translate facts operate to transfer rights or
duties from one person lo another.
 Agreement

An agreement is made when two people

reach an understanding about a
particular issue, including their
obligations, duties and rights. While
agreement is sometimes used to mean
contract legally binding oral or written
agreement. It is actually a broader.
 DEFINITION:

According to contract Act 1872:

“Every promise and every set of
promises, forming the
cosideration for each other is an
agreement”
 CHARACHTERISTICS OF AGREEMENT:

Benefit of both parties.

Agreement are fully understood.

Doable,manageable and specific

agreement.
Sign a written document.

Well-explained, researched discussed agreement.

Two or more parties.

Agreement of all parties in same sense.

 TYPES OF AGREEMENT:

Social agreement

Legal agreement

Sale deed agreement

Mortgage agreement

Construction agreement
Research agreement

Confidentiality agreement

Material transfer agreement

Service agreement

Small business innvoation research agreement

TYPES OF AGREEMENT

1- SocialAgreement.
TYPES OF AGREEMENT CONT......

2- Legal Agreement
TYPES OF AGREEMENT CONT......

3- Sale deed Agreement

TYPES OF AGREEMENT CONT......

4- Mortage agreement
TYPES OF AGREEMENT CONT......

5- Construction agreement
TYPES OF AGREEMENT CONT......

6- Research agreement
TYPES OF AGREEMENT CONT......

7- Confidentiality agreement
TYPES OF AGREEMENT CONT......

8- Material transfer agreement

9- Service agreement
10-Small business innvoation
research agreement
 Agreement Validity Terms:

Agreement validity terms reveal the intentions of two parties

entering into a contract. The terms can be formalized in
writing or, in the case of an oral agreement, be determined by
a court. Without them, a contract cannot exist. They can be
language that is unique to the conditions that have determined
the need for the agreement or standard clauses that are
commonly used in contract law. Regardless, both parties to the
contract must have confidence that the terms imposed by the
contract are legally valid and protect their rights and provide
guarantees of security should disagreements arise over the
duration of the contract.
THANK YOU.
LIABI LITY, MEANING,
TYPES AND
THEORIES

By Asst. Prof. Surabhi Tolani.

Liability

▪ Definition By Salmond;

“Liability or responsibility is the bond of

necessity that exists between the wrongdoer
and the remedy of wrong”.
Meaning of L i a b i l i t y

▪ The quality or state of being legally obligated

or accountable; Legal responsibility to
another or to society.

▪ Enforceable by Civil remedy or Criminal

punishment.
Count.

▪ Give twoSenses

1. Synonym Duty.

2. Antonym Immunity.
Types of l i a b i l i t y

▪ Civil Liability
➢ Is the enforcement of the right of
the plaintiff against the defendant in civil
proceedings.
➢ Civil wrong is against a private individual and
the remedy isdamages.
▪ Criminal Liability
➢ Crime is a wrong committed
against the society and remedy is punishment.

➢ Liability in a crime is measured by the intention

of thewrongdoer.
Measures o f a Criminal Li a b i l i t y

▪ Motive ofthe offence

Motive is said to be the ulterior intent.The ulterior intend is
called motive.
▪ Intention
The fore-knowledge of the act.
Salmon
➢ “The purpose of design with which an act is done. It is the
Fore-knowledge of the act, coupled with the desire of it.
Such fore-knowledge and desire being the cause of the act”
Count.

▪ Magnitude in theoffence
The greater the magnitude of the offence, the greater
should be its punishment .

▪ The character of the offender

The worse character of the offender the more severe
should bethe punishment.
Vicarious L iab ilit y

▪ According to the principle of vicarious liability when one

person is liable for the wrongful acts done by another
person.

▪ Acc to Salmond
“in general a person is responsible for his
own acts, but there are exceptional cases in which the
law imposes on him vicarious responsibility for the acts
done by others, however blameless himself.”
▪ Relationship can be in form of

➢ Principal and agent.

➢ Partners of a partnership firm.
➢ Master andservant.

❖ Principal is liable for any act committed by his agent during

the course of employment.
Strict L iab ilit y

▪ Definition:
A man is held responsible for the acts committed by
himself but there is an exception to this rule in which a
man is responsible irrespective of the existence of either
wrongful intent or negligence. And this is known as
wrongsof strict liability.
▪ Ryland V. Flatcher (Case Law)
▪ Held

❖ “ the person who, for his own purposes, brings on his land,
and collects and keeps there anything likely to do mischief, if
it escapes, must keep it in his peril and if he does not do so, is
prima facie answerable for all the damage which is natural
consequence ofits escape”
Theories of L i a b i l i t y

▪ Theory of Remedial Penalty

Based on maxim

“Ubi jus Ibiremedium”

Means “when there is a right there must be some remedy”.
Whenever the law creates a duty, it should enforce the
specific execution ofit.
Exceptions
▪ Duties ofimperfect Obligation
▪ Those duties the breach of which gives no cause of action and
creates no liability at all. E.gA time-barred debt is an example of
it.Thought the debt exists in law, it is not enforceable.
▪ Duties incapable ofspecific enforcement
Duties which from their nature cannot be specifically enforced
after having once been broken.There wrongs are transitory and
non continuing.
▪ Specific performance inexpedient
▪ There are many cases where specific performance of a duty is
possible, the law may not resort to it.
▪ For example, if X contracts to render personal service toY,Y
cannot enforce performance of this contract.
▪
Theory of Penal l i a b i l i t y

Based on the maxim

“ actunon fa”cit reum, nisi mens sitrea”
Means
“which means that act alone does not amount to
crime, unless it is accompanied by guilty mind.”
THANK YOU.
ADMINISTRATION OF
JUSTICE
BY ASST. PROF. SURABHI TOLANI.
 INTRODUCTION:

State maintain law and order and establish peace and social
security. Administration of Justice is one of the primary functions of
the State. The main function of the administration of justice is the
protection of individuals' rights, enforcement of laws and punishment
of wrongdoer. In determining a nation's rank in a political
organization, no test is considered more decisive than its
administration of justice, for it has been conceived as one of the
firmest peelers of any government.
WHAT IS ADMINISTRATION OF JUSTICE?

In simple words administration of Justice means justice according to law. Justice

generally means the quality of being just. for example the awarding of what is
due. justice consists of impartiality, integrity or rightness etc Administration of
justice is generally divided into two parts- viz Administration of Civil Justice and
Administration of Criminal Justice.
A State may not be called a State if it has failed to discharge its functions
concerning the administration of justice. Life may not be lived in a society in which
there is no preservation of the rights of man and no prevention of injustice.
ORIGIN AND GROWTH OF ADMINISTRATION
OF JUSTICE -

The origin and growth of administration of Justice is identical with the origin and
growth of man. In modern civilized societies, it has evolved through stages.

First Stage -
In early stage when society was primitive and private vengeance and self-help
were the only remedies available to the wronged person against the wrongdoer. He
could get his wrong addressed with the help of his friends or relatives.
Second Stage -
The second stage of development of the society was characterized by
the state coming into existence in its rudimentary form when its functions
where only persuasive in nature. It did not have enforcing power by which it
could punish the wrongdoer.

Third Stage -
In the third Stage of development of society, wrongs could be
redressed by payment of compensation by the wrongdoer to the
wronged(victim) who was affected by the wrongful act.
Thus up to this time, the justice remained private in nature without the
compulsive force of the State.
 ADVANTAGES OF ADMINISTRATION OF
JUSTICE:
Uniformity and certainty - Legal Justice ensures uniformity and certainty.
Everybody knows what the law is and there is no scope for arbitrary action. Even
Judges have to give decisions according to the declared law of the Country. As the
law is certain, citizens can shape their conduct accordingly.

Impartiality - Another Advantage of Administration of Justice, there is impartiality

in the administration of justice. Judges are required to give their decisions according
to the pre-determined legal principles and the cannot go beyond them.
 DISADVANTAGES OF JUSTICE:
Rigidity - One Disadvantage of Legal Justice is that it is Rigid. Law has already been laid down in precedents. It is
not always possible to adjust it to the changing needs of society. Society may change more rapidly than legal justice and
may result in hardship and injustice in certain cases. Judges act upon the principle that "hard cases should not make
bad law".

Technicalities - Another disadvantage of legal justice is its technicalities (formalism). Judges attach more importance
to legal technicalities than they deserve. They give importance to form than to substance.

Complexity - Modern society is becoming more and more complicated and if made from time to time to codify or
simplify the legal system but very soon law becomes complicated
TYPES OF ADMINISTRATION OF JUSTICE:

TYPES

CIVIL CRIMINAL
CRIMINAL ADMINISTRATION OF
JUSTICE:

Administration of criminal justice deals with public wrongs.

all offenses included in Indian Penal Code(IPC) are public
wrongs. The administration of criminal justice is to punish
the offender. Punishment may be described as the infliction
by State Authority, of a consequence normally regarded as an
evil (for example imprisonment or death) on an individual
found to be legally guilty of a crime.
PURPOSE OF CRIMINAL ADMINISTRATION
OF JUSTICE:

The main purpose and object of criminal justice is to punish the

wrongdoer (offender) and to maintain law and order in
society. It is the State which punishes the Criminal. Punishment
necessarily implies some kinds of pain inflicted upon the offender
or loss caused to him for his criminal act which may either be
intended to deter him from repeating the crime or maybe an
expression of society disapprobation for his Anti Social conduct
or it may also be directed to reform and regenerate him and at the
time ported the society from criminals.
THEORIES OF PUNISHMENT:

RETRIBUTIVE

DETERRANT

EXPIATION

PREVENTIVE

REFORMATIVE
 KINDS OF PUNISHMENTS:
FLOGGING

BRANDING
CORPORAL PUNISHMENT:
CHAINING

MUTILATION

PILLORY
FINE AND CONFISCATION OF PROPERTY

DEPORTATION

IMRISONMENT

SOLITARY CONFINEMENT

CAPITAL SENTENCE.
 CIVIL ADMINISTRATION OF
JUSTICE:
The main object of the administration of civil justice is to provide relief by way of compensation or
other relief to the injured party. The rights enforced by Civil proceedings are of two kinds viz., Primary
rights and Sanctioning rights. Primary rights are those which exist as such. They do not have their source
in some wrong. Sanctioning or remedial rights are those rights which come into being after the violation
of a primary right. A primary right is right arising out of conduct or as a jus in rem.
A sanctioning the right is one which arises out of the violation of another right.

For example, if X enters into a valid contract, his right to have the contract performed is a
primary right. If the contract is broken, his right to damages for the loss caused to him for the
breach of contract is sanctioning right.
A primary right may be enforced by specific enforcement. A sanctioning right is
enforced by sanctioning enforcement.
 PURPOSE OF CIVIL
ADMINISTRATION OF JUSTICE:

The purpose of civil justice is the

enforcement in civil proceedings,
either a primary or a
sanctioning right.
 END OF
JURISPRUDENCE
SUBJECT
THANK YOU.