Juris

CLC/AM/R/05
The Central Law College

JURISPRUDENCE (FA5B) LECTURE NOTES
PREPARED BY A. PREM KUMAR
UNIT I
Nature and Definition of Jurisprudence

Meaning
Jurisprudence is a name given to certain type of Investigation into Law. Investigation of an

abstract, general and theoretical in nature which seeks to lay bare essential principles of law and
legal systems.
Jurisprudence = Juris + Prudence.
In Latin = Jurisprudentia.
Juris = Legal.
Prudentia = Skill or Knowledge.
Jurisprudence = Knowledge of Law.
It means the study of the fundamental legal principles.
The Study of Jurisprudence may be from
(a) Philosophical
(b) Scientific
(c) Historical.
In France = “la philosophie du droit”

In Germany = “rechtsphilosophie”
In India = “ Vidhi or Shastra” Means “Knowledge of Law”.
Thus, Jurisprudence is the study of the fundamental legal principles, including their philosophical,
historical and sociological bases and an analysis of legal concepts.
Nature of Jurisprudence
1. Jurisprudence is the study of the fundamental legal principles under lie the system of law.
2. Jurisprudence comprises philosophy of law, and the second order subject whose object is not
discovering new rules but to reflect on the rules already known.
3. Jurisprudence is the name given to a certain type of investigation into law, and an investigation
of an abstract, general and theoretical nature which seeks to lay bare the essential principles of
law and legal systems.
4. Jurisprudence in contrast and general does not constitute a set of rules is not derived from
authority and is without practical application.
5. Jurisprudence is basically concerned with the elucidation of the general principles upon which
the rules of law are based.
6. Jurisprudence is a social science. Some of the branches of social science are History,
Economics, Sociology, Politics, Ethics and Psychology. The relationship of Jurisprudence with
these branches of social sciences results in Jurisprudence is a social science.
1
CLC/AM/R/05

Jurisprudence and history

History studies past events in their different perspectives. The relation between
jurisprudence and history is so close that there is a separate Historical School of Jurisprudence.
History furnishes the background in which a correct idea of jurisprudence can be realized.
Jurisprudence and economics
Economic studies man’s efforts in satisfying his wants and producing and distributing
wealth. Economics is the science of wealth and Jurisprudence is the science of law. Very often,
economic factors are responsible for crimes. Economic problems arise from day to day and it is the
duty of the law giver to tackle those problems. Jurisprudence teaches legislators how to make laws
which will promote social and economic welfare. There are laws relating to workmen’s
compensation, factory legislation, laws relating to labout, insurance, maternity welfare, bonus, leave
facilities and other concessions given to workmen. Both Jurisprudence and Economics help each in
furthering the welfare of the society.
Jurisprudence and Sociology
The attitude of the sociologist towards law is different from that of a lawyer who, in his
professional capacity, is concerned with the rules which have to be obeyed by the people. A lawyer
is essentially interested in those who frame the rules and execute them in a given society. There is a
separate branch of Sociological jurisprudence based on the sociological theories and is essentially
concerned with the influence of law and society at large, particularly social welfare. The
sociological approach to legal problems is essentially different from that of a lawyer. In the case of
crime in society, its causes are to a very great extent sociological and to understand their pros and
cons, one must have a knowledge of society. Sociology has helped jurisprudence in its approach to
the problem of prison reforms and has suggested ways and means of preventing social wrongs.
Jurisprudence and Politics
Politics deals with the principles governing the governmental organization. In a politically
organized society, there exists a regulations which may be called laws and lay down authoritatively
what men may do and what they may not do.
Jurisprudence and Ethics

Ethics has been defined as the science of human conduct. It deals with how man behaves and
what should be the ideal human behavior. Ethics is concerned with good or proper human conduct
in the light of public opinion. Public opinion varies from place to place, from time to time and from
people to people. Jurisprudence is related to positive morality in so far as law is considered as the
instrument through which positive ethics tries to assert itself. There is a separate branch of Ethical
Jurisprudence which tries to examine the existing ethical opinions and standards of conduct in terms
of law and makes suggestions for necessary changes so that it can properly depict the public
conscience. Many acts are unethical but all unethical acts are not necessarily criminal. Ethics lay
down the rules for human conduct based upon higher and nobler values of life. Laws are meant for
regulating human conduct in the present and subordinating their requirement of the individual to that
of that society is at large. A justice must be adept at the science of ethics because he cannot criticize
the law unless examines the law through the instrumentality of ethics.
Jurisprudence and Psychology
2
CLC/AM/R/05

Psychology has been defined as the science of mind and behavior. It is recognized that no
human science can be discussed properly without the thorough knowledge of human mind and hence
its close connection with Jurisprudence. Both psychology and jurisprudence are interested in solving
such questions as the motives of crime, a criminal personality, whether a criminal gets pleasure in
committing a crime, why there are more crimes in one society than in another and what punishment
should be given in particular case. Psychology can help the law maker considerably in the approach
to the problem of not only making the law but also of executing it. There is a school of jurists which
holds the view that the sanction behind all laws is a psychological one. A Study of negligence,
intention, motive and other cognate mental conditions forms part of both jurisprudence and
psychology.
Scope of Jurisprudence
There is no unanimity of opinion regarding the scope of jurisprudence. Jurisprudence has
been so defined as to cover moral and religious precepts also and that has created confusion. Austin
distinguished the law from morality and theology and restricted the term to the body of rules set and
enforced by the sovereign or supreme law making authority within the realm. Thus, the scope of
Jurisprudence was limited to the study of concepts of positive law and ethics and theology fall
outside the province of jurisprudence.
There is a tendency to widen the scope of jurisprudence. The present view is that the scope
of jurisprudence cannot be circumscribed or regimented. It includes all concepts of human order and
human conduct in State and society. Anything that concerns order in the State and society falls under
the domain of jurisprudence. The view of Lord Radcliffe is that, jurisprudence is a part of history, a
part of economics and sociology, a part of ethics and a philosophy of life. Karl Lelwellyn observes
the scope of jurisprudence as, “Jurisprudence is as big as law - and bigger.”
Significance and Utility or Value of Jurisprudence
Value of Jurisprudence can be seen by its utility and significance. It is sometimes said that
jurisprudence has no practical utility as it is an abstract and theoretical subject.
John Salmond does not agree with the view that jurisprudence has no practical utility.
According to him, there is its own intrinsic interest like other subjects of serious scholarship. Just
as a mathematician investigates the number theory not with the aim of seeing his findings put to
practical use but by reason of the fascination which it holds for him, likewise the writer on
jurisprudence is impelled to his subject by its intrinsic interest. Researches in jurisprudence may
have repercussions on the whole of legal, political and social thought.
Jurisprudence has also practical value. One of the tasks of jurisprudence is to construct and
elucidate concepts serving to render the complexities of law more manageable and more rational. In
this way, theory can help to improve practice.
Jurisprudence has also educational value. The logical analysis of legal concepts sharpens the
logical technique of the lawyer. The study of jurisprudence can also help to combat the lawyer’s
occupational view of formalism which leads to excessive concentration on legal rules for their own
sake. Jurisprudence is often said to be the eye of law. It throws light on the basic ideas and the
fundamental principles of law. By understanding the nature of law its concepts and distinctions, a
lawyer can find out the actual rules of law. A study of jurisprudence helps legislators by providing
them a precise and unambiguous terminology. The study of jurisprudence enlightens students and
3
CLC/AM/R/05

helps them in adjusting themselves in society without causing injuries to the interest of other
citizens. Jurisprudence helps the judges and the lawyers in ascertaining the true meanings of the
laws passed by the legislatures by providing the rules of interpretation.
Definition of Jurisprudence
The study of jurisprudence is started with the Romans. The Latin equivalent of jurisprudence
is ‘jurisprudentia’ which means either knowledge of law or skill in law. In England, the word
jurisprudence is used throughout the early formative period of the Common Law but as meaning
little more than the study of or skill in law.
Roman jurist Ulpian defined the Jurisprudence as “The observation of things human and
divine, the knowledge of the just and unjust.”
Julius Stone in his treatise, Legal System and Lawyer’s Reasoning, defined Jurisprudence as
“the lawyer’s extraversion. It is the lawyer’s examination of the precepts, ideals and techniques of
the law in the light derived from present knowledge in disciplines other than the law.”
The view of John Austin is that the jurisprudence is, “the Philosophy of positive law”.
Explanation for Austin’s definition of Jurisprudence
The positive law, Austin used in his definition, refers to the law laid down by a political
superior for controlling the conduct of those subject to his aunthority. The term philosophy used by
Austin refers to the jurisprudence deals with the theories of law. Philosophy deals with the most
general theories about things, human and divine, while Jurisprudence restricts itself to the general
theory of man-made law.
John Salmond defines Jurisprudence as the “Science of the first principles of the civil law”.
Explanation for Salmond’s definition of Jurisprudence
Jurisprudence deals with a particular species of law, viz., civil law or law of the land or law
of the State. According to Salmond civil law consists of rules applied by courts in the administration
of justice and civil law is with the jurist’s law only that Jurisprudence is concerned. Salmond calls
the civil law the fit subject of jurisprudence.
Sir Thomas Erskine Holland defines jurisprence as, “the Formal Science of Positive Law”.
Explanation for Holland’s definition of Jurisprudence
A formal science, as distinguished from a material science, is one which deals not with
concrete details but with the fundamental principles underlying them. Formal science is one which
concerns only the form and not its essence. A formal science is one which describes only the form
or the external side of the subject and not its internal contents. Jurisprudence is not concerned with
the actual material contents of law but with its fundamental conceptions. Jurisprudence in this view
should concern itself with the general portion of legal doctrine. Since Jurisprudence deals only in a
formal or abstract way with those relations of mankind which are generally recognized as having
legal consequences, Dr. Holland calls the jurisprudence as a formal science.
Dean Roscoe Pound defined Jurisprudence as, “the science of law.”
John Chipman Gray defined Jurisprudence as, “the science of law, the statement and
systematic arrangement of the rules followed by the courts and the principles involved in those
rules.”
William Lee defined Jurisprudence as, “Jurisprudence is a science which endeavours to
ascertain the fundamental principles of which law is the expression.”
4
CLC/AM/R/05

Sir Carleton Kemp Allen defined Jurisprudence as, “Jurisprudence is the scientific synthesis
of all the essential principles of law.”
George White Cross Paton defined Jurisprudence as, “Jurisprudence is a particular method of
study, not of law of one country, but of the general notion of law itself. It is a study relating to law.”
Divisions of Jurisprudence
Jeremy Bentham’s classification of jurisprudence
He classified the jurisprudence into two kinds. They are expositorial jurisprudence and
censorial jurisprudence. Expositorial Jurisprudence means the Jurisprudence which deals with the
law as it is and censorial jurisprudence means the jurisprudence which deals with the law as it ought
to be.
John Austin’s classification of jurisprudence
He classified jurisprudence into two kinds as General jurisprudence and Particular
jurisprudence.
General jurisprudence
Jurisprudence is the science which concerned with the exposition of the principles, notions
and distinctions which are common to all the systems of law. The proper subject of general or
universal jurisprudence is a description of such subjects and ends of laws as are common to all the
systems of law and those resembleness between difference systems which are bottomed in the
common nature of men or correspond to the resembling points in the several portions. It expounds
the fundamental principles and the broadest generalisations of two or more systems. It is the
province of general, abstract or pure jurisprudence to analyse and systematize the essential elements
underlying the indefinite variety of legal rules without special reference to the institution of any
particular country.
Particular jurisprudence
It is the science of particular law. It is the science of any system of positive law actually
obtaining in a specifically determined political society. Particular Jurisprudence confined only to the
study of any actual system of law or any portion of it. Particular jurisprudence takes the data from a
particular system of law.
Example for General and Particular Jurisprudence

Possession is one of the fundamental legal concepts recognized by all systems of law.
The function of General jurisprudence is to explain its characteristics, its legal value, mode of
its acquisition and extinction and analyzing the concept without reference to any particular legal
system.
Particular jurisprudence will also do the same thing but with reference to some particular
system of law.
John Salmond’s classification of jurisprudence
John Salmond, who was the judge of the supreme court of Newzealand, makes a distinction
between the use of the term jurisprudence in the generic and specific sense. Generic sense includes
the entire body of legal doctrines and it may called as theoretical or general jurisprudence. The
specific jurisprudence deals with a particular department of those doctrines.
5
CLC/AM/R/05

According to John Salmond, jurisprudence in its specific sense as the theory or philosophy of
law is divisible into three branches which may be distinguished as analytical, historical and ethical.
1) Analytical Jurisprudence:
It is the general or philosophical part of systematic legal exposition. This is division

of jurisprudence is also called as expository or systematic jurisprudence. The purpose of this
branch of study is to analyze and direct the law of the land as it exists today. This is the analysis
as to the principles of law without reference to their historical origin or ethical significance. The
analytical jurisprudence analyses the various constituent ideas of which the complex ideas of law
is made up.
2) Historical Jurisprudence:
It constitutes the general portion of legal history. Legal history is concerned with a
legal system in its process of historical development. It deals with the general principles of law
governing the origin and development of law. It traces the growth of law from its origin with a
view to find out the origin of our legal concepts and the general course of their evolution.
3) Ethical Jurisprudence:
It is the general or philosophical part of the science of legislation. It deals with the
law not as it is or has been, but as ought to be. It deals with the ideal of the legal system. It is
concerned with the purpose of which the law exists and the manner in which such purpose is
fulfilled.
Scope of Jurisprudence
There is no unanimity of opinion regarding the scope of jurisprudence. Jurisprudence has
been so defined as to cover moral and religious precepts also and that has created confusion. Austin
distinguished the law from morality and theology and restricted the term to the body of rules set and
enforced by the sovereign or supreme law making authority within the realm. Thus, the scope of
Jurisprudence was limited to the study of concepts of positive law and ethics and theology fall
outside the province of jurisprudence.
There is a tendency to widen the scope of jurisprudence. The present view is that the scope
of jurisprudence cannot be circumscribed or regimented. It includes all concepts of human order and
human conduct in State and society. Anything that concerns order in the State and society falls under
the domain of jurisprudence. The view of Lord Radcliffe is that, jurisprudence is a part of history, a
part of economics and sociology, a part of ethics and a philosophy of life. Karl Lelwellyn observes
the scope of jurisprudence as, “Jurisprudence is as big as law - and bigger.”
Significance and Utility or Value of Jurisprudence
Value of Jurisprudence can be seen by its utility and significance. It is sometimes said that
jurisprudence has no practical utility as it is an abstract and theoretical subject.
John Salmond does not agree with the view that jurisprudence has no practical utility.
According to him, there is its own intrinsic interest like other subjects of serious scholarship. Just
as a mathematician investigates the number theory not with the aim of seeing his findings put to
practical use but by reason of the fascination which it holds for him, likewise the writer on
6
CLC/AM/R/05

jurisprudence is impelled to his subject by its intrinsic interest. Researches in jurisprudence may
have repercussions on the whole of legal, political and social thought.
Jurisprudence has also practical value. One of the tasks of jurisprudence is to construct and
elucidate concepts serving to render the complexities of law more manageable and more rational. In
this way, theory can help to improve practice.
Jurisprudence has also educational value. The logical analysis of legal concepts sharpens the
logical technique of the lawyer. The study of jurisprudence can also help to combat the lawyer’s
occupational view of formalism which leads to excessive concentration on legal rules for their own
sake. Jurisprudence is often said to be the eye of law. It throws light on the basic ideas and the
fundamental principles of law. By understanding the nature of law its concepts and distinctions, a
lawyer can find out the actual rules of law. A study of jurisprudence helps legislators by providing
them a precise and unambiguous terminology. The study of jurisprudence enlightens students and
helps them in adjusting themselves in society without causing injuries to the interest of other
citizens. Jurisprudence helps the judges and the lawyers in ascertaining the true meanings of the
laws passed by the legislatures by providing the rules of interpretation.
7
CLC/AM/R/05

UNIT II
Schools of Jurisprudence
The division of schools of jurisprudence is based upon the fact that certain basic assumptions
about law characterize the jurists of each school and distinguish them from those of other schools of
juristic thought. A comprehensive basis of classification is provided by the attitude of the jurists
towards certain basic relations of law, e.g., relation of law to the State, relation of law to the society
and relation of law to certain ideals such as justice, pursuit of happiness etc.
On this basis Jurisprudence is divisible into following three major schools:
1. Analytical School of Jurisprudence
2. Historical School of Jurisprudence
3. Philosophical School of Jurisprudence
Analytical School of Jurisprudence

The chief exponents of this School in England are Jeremy Bentham, John Austin, Sir William
Markby, Sheldon Amos, Thomas Erskine Holland, John Salmond and Prof. H.L.A. Hart. This
School received support in the United States from Gray and Hohfeld and on the Continent of Europe
from Hans Kelsen and Korkunov.
John Austin is called the father of English Jurisprudence and the founder of the Analytical
School.
The Analytical School is known by the following different names.
It is called the Positive Schools because the exponents of this school are concerned neither
with the past nor with the future of law but with law as it exists i.e. with law ‘as it is’ (Positum).
The School was found dominant in England and is popularly known as the English Schoool.
The founder of this School was John Austin and hence it is also called the Austinian School.
This School treated law as an imperative or command emanating from the State and so for
this reason this school is known as Imperative School.
The Thought of Analytical Legal Positivism
The jurists of the Analytical School consider the most important aspect of law is its relation
to the State. Law is treated as an imperative or command emanating from the State. It takes for
granted the developed legal system and proceeds logically to analyse its basic concepts and classify
them so as to bring out their relations to one another. This concentration on the systematic analysis
of legal concepts has given this school the name of analytical school of jurisprudence. The first
concern of the jurists is to understand the structural nature of a legal system and for this purpose,
discussions of justice are not only irrelevant but also dangerously confusing. Such an approach to
law is commonly termed analytical and such writers are often styled Analytical Positivists. The
purpose of analytical jurisprudence is to analyse, without reference either to their historical origin or
development or their ethical significance or validity, the first principles of law. The main task of the
analytical school is the lucid and systematic exposition of the legal ideas pertinent to ampler and
mature system of law. It starts from the actual facts of law as it sees them today. One purpose of the
8
CLC/AM/R/05

Analytical School is to gain an accurate and intimate understanding of the fundamental working
concepts of all legal reasoning. The Analytical School takes law as the command of the sovereign.
It puts emphasis on legislation as the source of law.
According to John Salmond, a Book of Analytical Jurisprudence will deal with such subjects
as the analysis of the concept of law, analysis of the various concepts of idea of which the compled
idea of law is made up, the State, Soverignty and the administration of justice, legal sources from
which the law proceeds theough the theory of legislation, judicial precedents and customary law,
analysis of the scientific arrangement of law into distinct departments, analysis of the legal rights,
analysis of the principles of legal liability in civil and criminal cases and analysis of the other
relevant legal concepts.
Historical School of Jurisprudence
The chief exponents of this School are Montesquieu, Hugo, Burke, Herder, F.K. Von
Savigny, Puchta, Gierke and Sir. Henry Maine.
According to Sir Henry Maine, Montesquieu was the first jurist who followed the historical
method.
Sir Henry Maine is called the founder of the historic-comparative school of jurisprudence in
England.
F.K. Von Savigny is regarded as the founder of the Historical School of Jurisprudence.
The Historical School attaches importance of relation of law to the societal institutions in
which law exhibits itself. The historical jurisprudence deals with the general principles governing
the origin and development of law, and with the influences that affect the law. While the analytical
school confines itself to mature legal systems, the historical school concentrates its attention on the
primitive legal institutions of society. To the jurists of this school, the typical law is a customary
rule spontaneously evolved by historical necessity and popular practice. About the nature and
functions of the Historical School of law, G.G. Lee writes: “Historical Jurisprudence deals with law
as it appears in its various forms at its several stages of development… It takes up custom as
enforced by the community and traces its development. It seeks to discover the first emergence of
those legal conceptions which have become a part of the world’s common store of law, to show the
conditions that gave rise to them, to trace their spread and development, and to point out those
conditions and influences which modified them in the varying course of their existence…”
Philosophical School of Jurisprudence
The chief exponents of this School in England were Francis Bacon, Hobbes, Locke and
Blackstone, and on the Continent of Europe were Hugo Grotius, Immanuel Kant, Hegel, Fichte,
Kohler, Stammler, and Lorimer.
Hugo Grotius is regarded as the Father of Philosophical Jurisprudence.
The Philosophical School concerns itself chiefly with the relation of law to certain ideals
which law is meant to achieve. It is concerned with relation to the law to its certain ideals such as
justice, freedom of will and the pursuit of happiness. It investigates the purpose of law and the
measure and manner in which that purpose is fulfilled. The Philosophical Jurists regard law neither
as the arbitrary command of a ruler nor as the creation of historical necessity. To them, law is the
product of human reason and its purpose is to elevate and ennoble human personality. The
9
CLC/AM/R/05

Philosophical School is interested primarily in the “development of the idea of justice as an ethical
and moral phenomenon and its manifestation in the principles applied by the courts.”
The philosophical school regards the perfection of human personality as the ultimate
objective of law. The Science of Ethics which deals with the principles and moral considerations
affecting man’s conduct and constituting his criterion of right and wrong also sets for itself the goal
of making man virtuous and perfect. According to the jurists of this school, the proximate object of
jurisprudence is to secure liberty to the individual and its ultimate object is the same as that of ethics
which is the attainment of human perfection. It is in this way that philosophical jurisprudence
becomes the meeting point and common ground of ethics and jurisprudence.
Sociological School of Jurisprudence
In the beginning, society was governed by customs which had only a social sanction. Then
came the supremacy of priests. After that, the secular State emerged and dominated all institutions.
As a reaction, the importance of the individual was asserted by thinkers and philosophers. There
were evolutions and political changes. There was the Industrial Revolution. The necessity of
balancing the welfare of the society and individual was realized. Importance of the society should
be considered in the light of the individuals and vice-versa. There was a tendency towards
socialization. The approaches made from this point of view are called sociological approaches.
The sociological school of jurisprudence gained ascendancy in the first decade of the 20 th
century. This school devotes its attention to the actual circumstances which give rise to legal
institutions and which conditions their scope and operation. It is essentially concerned not with man
as an individual but with man-in-association. The whole theory of the sociological school is a
protest against the orthodox concept of law as an emanation from a single authority in the State. The
sociological jurists look upon law as a phenomenon. Law is a social function, an expression of
human society concerning the external relations of its individual members.
The chief exponents and the jurists of this school are August Comte, Montesquieu, Emile
Durkheim, Herbert Spencer, Leon Duguit, Gierke, Maurice Hauriou, Maxweber, Rudolf Von
Ihering, Eugen Ehrlich, Roscoe Pound, Karl Renner, Pashukanis, Parsons and Prof. Stone.
Montesquieu
He was a French Philosopher and forerunner of the sociological method in Jurisprudence.
He was the first to recognize and take account of the influence of social conditions on the legal
process. In his work, “The Spirit of Laws”, he wrote law should be determined by the characteristics
of a nation that, “law should be in relation to the climate of each country, quality of each soil, to its
situation and extent, to the principal occupations of the natives whether husband men, huntsmen or
shepherds they should have relation to the degree of liberty which the constitution will bear, to the
religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners and customs.”
He perceived the importance of history as a means of understanding the structure of society and also
drew attention to the part played by economic factors.
August Comte
10
CLC/AM/R/05

He was a French Philosopher and called as founder of the science of sociology. According to
Comte, the legitimate object of scientific study is society itself and not any particular institution of
Government. He emphasized the fact that men have ever been associated in groups and it was in the
social group and not in isolated individuals that the impulses originated which culminated in the
establishment of law and government. According to Comte, society is like an organism and it
can progress when it is guided by scientific principles which should be formulated by observation
and experience of facts excluding all metaphysical and similar other considerations.
Emile Durkheim
He was one of the earliest thinkers about the criminal process. His view was that all was the
measuring rod of any society. His formulations on the evolution of law are still worth. His
discussion of the meaning of repressive law is particularly useful to an understanding of the social
significance of crime and punishment. Emile Durkheim observes that, “Law reproduces the
principal forms of social solidarity.” There are two basic types of societal cohesions which he called
solidarity. They are Mechanical Solidarity and Organic Solidarity. Mechanical Solidarity to be
found in homogeneous societies and Organic Solidarity which was found in more heterogeneous and
differentiated modern societies which rest on functional independence produced by the division of
labour.
Rudolf Von Ihering
He developed his legal philosophy through an intensive study of the spirit of Roman Law.
He was an utilitarian. He found the necessity of law to serve social purposes. According to Ihering,
the purpose of human action is not the act itself but the satisfaction derived from it. For this he gave
an example, the debtor pays his debt in order to free himself from it.
According to Ihering, the purpose of law is the protection of interests. He defined interests as
the pursuit of pleasure and avoidance of pain. Individual interest is made partly of a social purpose
by connecting one’s own purpose with the interests of other people. By converging interests for the
same purpose, cooperation is brought about and commerce, society and the State result from it.
Ihering divides into the following three categories which are the totality of human wants: 1) Extra-
legal wants, these are the wants offered to man by nature, e.g. the produce of soil, 2) Mixed-legal
wants, these are the wants for conditions of life exclusive to man, promotion of life, e.g. labour etc.,
3) Purely-legal wants, these are the wants purely legal in nature, e.g. repayment of debt ordered by
the court in accordance with the law.
Dean Roscoe Pound
Roscoe Pound was responsible for the growth of the functional attitude in juridical science,
the attitude of looking to the working of law rather than to its abstract content and regarding law as a
social institution which it should be our endeavour to improve by conscious and intelligent effort
along lines which jurists shall determine as the most efficacious for achieving the ends and purposes
to be served. According to Pound, sociological jurisprudence should ensure that the making,
interpretation and application of laws take account of social facts. In order to achieve that end, there
should be a factual study of the social effects of legal administration, social investigations as
preliminaries to legislations.
Pound’s Theory of Social Engineering
11
CLC/AM/R/05

In his work, “Interpretations of Legal History”, Pound observes, “Law is the body of
knowledge and experience with the aid of which a large part of social engineering is carried on. It is
more than a body of rules.”
According to Pound, in order to achieve the purposes of the legal order, there has to be
recognition of certain interests, individual, public and social, a definition of the limits within which
such interests will be legally recognized and given effect to and the securing of those interests within
the limits as defined.
When determining the scope and subject matter of the system, the following five things have
to be done which are preparation of an inventory of interest and classifying them, selection of the
interests which should be legally recognized, demarcation of the limits of securing the interests so
selected, consideration of the means whereby laws might secure the interests when those have been
acknowledged and delimited, and evolution of the principles of valuation of the interests.
Pound likened the task of the lawyer to engineering and he repeated that analogy frequently.
The aim of social engineering is to build as efficient a structure of society as possible which requires
the satisfaction of the maximum wants with the minimum of friction and waste. It involves the
balancing of competing interests. For that purpose, interests were defined by Pound as claims or
wants or desires (or expectations) which men assert de facto, about which law must do something if
organized societies are to endure. It is the task of the jurists to assist the court by clarifying and
expatiating on the interests protected by law. For facilitating the tasks of social engineering, Pound
classified the various interests which are to be protected by law under three heads: 1) Private
interests, 2) Public interests and 3) Social interests.
Private Interests:
The private interests to be protected by law are the individual’s interests of personality.
These include physical integrity, reputation, freedom of volition and freedom of conscience. They
are safeguarded by the criminal law, law of torts, law of contracts and by limitations upon the
powers of the government to interfere in the matter of belief and opinion. Individual’s interests in
domestic relations include marriage, relations of husband and wife and parents and children and
claims to maintenance. Interests of substance include proprietary rights, inheritance and
testamentary succession, occupational freedom, freedom of association, freedom of industry and
contract, continuity of employment etc.
Public Interests:
Public interests are claims or demands or desires asserted by individuals involved in or
looked at from the standpoint of political life. There are two kinds of public interests: interests of
the State as a juristic person and interests of the State as a guardian of social interests. They include
the integrity, freedom of action and honour of the State’s personality, and claims of the politically
organized society as a corporation to property acquired and held for corporate purposes.
Social Interests:
Social interests are claims or demands or desires thought of in terms of social life and
generalized as claims of the social group. Social interests are said to include the following, social
interest in the general security, social interest in the security of social institutions, social interest in
12
CLC/AM/R/05

general morals, social interest in the conservation of social resources, social interest in general
progress and social interest in individual life.
Social interest in the general security embraces those branches of the law which relate to
general safety, general health, peace and order, security of acquisitions and security of transactions.
Social interest in the security of social institutions comprises domestic institutions, religious
institutions, political institutions and economic institutions. Divorce legislation may be adduced as
an example of the conflict between the social interests in the security of the institution of marriage
and the individual interests of the unhappy spouses. There is tension between the individual interest
in religious freedom and the social interest in preserving the dominance of an established church.
Social interest in general morals covers a variety of laws, e.g., laws dealing with prostitution,
drunkenness and gambling.
Social interest in the conservation of social resources covers conservation of social resources
and protection and training of dependants and defectives, i.e., conservation of human resources.
Social interest in general progress has three aspects: economic progress, political progress
and cultural progress. Economic progress covers freedom of use and sale of property, free trade,
free industry and encouragement of inventions by the grant of patents. Political progress covers free
speech and free association. Cultural progress covers free science, free letters, free arts, promotion
of education and learning and aesthetics.
Social interest in individual life involves self-assertion, opportunity and conditions of life.
According to Pound, the problem which juridical science faces is the evaluation and
balancing of these interests. For facilitating that process, Pound provided what he called the jural
postulates of civilized society. In the year 1919, he summarized the potulates as follows:
Every individual in civilized society must be able to take it for granted that-
(i) he can appropriate for his own use what he has created by his own labour and what he has
acquired under the existing economic order;
(ii) that others will not commit any intentional aggression upon him;
(iii)that others will act with due care and will not cast upon him an unreasonable risk of injury;
(iv) that the people with whom he deals will carry out their undertakings and act in good faith.
In the year 1942, Pound added to that list the following three new postulates:
(i) that he will have security as a job-holder;
(ii) that society will bear the burden of supporting him when he becomes aged;
(iii)that society as a whole will bear the risk of unforeseen misfortunes such as disablement.
These jural postulates are to be applied both by the legislators and the judges for evaluating
and balancing the various interests and harmonizing them.
Realists School of Jurisprudence:
The realist movement is a part of the sociological approach and it is sometimes called the
‘Left wing of the functional school’. It differs from the sociological school as it is little concerned
with the ends of law. The movement is called ‘realist’ as it studies law in its actual working and
rejects the traditional definition of law that it is a body of rules and principles which are enforced by
the courts. The realist approach concentrates on a scientific observation of law in its making and
13
CLC/AM/R/05

working. The advocates of this movement concentrate on the decisions given by law courts. They
also study the human factor in the judges and lawyers. They study the forces which influence judges
in reaching their decisions.
The view of realists is that they put too much emphasis on judges. To them law is what
judges decide. This is partly due to the fact that judges have played a very important part in the
growth of the American Constitutional Law. The organization of the judicial system in the United
States also played its part. The Supreme Court is the final authority not only to interpret law but also
to decide its validity. The existence of separate State Jurisdictions caused a multiplicity of laws and
decisions. All these made some jurists concentrate more on courts to know the actual working of
law and to study those factors which determine and influence it.
The approach of the realists is essentially empirical. Their view is that the decisions of the
judges are brought about by ascertainable facts. Some of the ascertainable facts are the personalities
of the individual judges, their social environments, the economic conditions in which they have been
brought up, business interests, trends and movements of thought, emotions, psychology etc.
Natural Law School
Justice may be divided into:
(i) Positive Justice and
(ii) Natural Justice.
Positive Justice = Principles of Law / Law of the Land

Natural Justice = Principles of Morality, Equity and Good Conscience.
Ex oequo et bono = in honesty and in right.
Natural Law also called as Divine Law (Jus Divindum), Law of Nature. It is also called as
Philosophical School. The idea of natural law has appeared in some or the other forms of during
early and modern period.
Jurists give different meaning to Natural Law in different ages.
Cicero says, “Natural Law is the Law of reason, as being established by that reason, by which the
world is governed and also as being addressed to and perceived by the rational nature of men”.
Aristotle and Thomasius thought it is the unwritten law (jus non scriptum) of nature in the hearts of
men. It is the universal and common law (jus commune, jus gestium) having universal validity,
same in all places, binding on all people.
Hookes states, “Eternal Law, as having existed from the commencement of the world, uncreated
and immutable”.
The Theory of Natural Law may be explained with reference to the following periods.
(i) Greek Period
(ii) Roman Period
(iii) The Christian Period
(iv) The Medieval Period
(v) The Modern Period
14
CLC/AM/R/05

Greek Period
Greeks are the first propounders of natural law. There were two trends of thoughts existed among
the Greek scholars.
1. The Basis of Law was Self-interest of the law maker and the only reason for obedience to law
was the self-interest in the subject (Law as a product of Expediency).
2. Law was guided by the uniform principles, which could give it stability. Socrates, Plato,
Aristotle, Zeno etc. had this trend of thought. Natural Law was both the way of living as well as
thinking.
Roman Period
It is the starting point of systematic study of western legal system and thought.
They classified law into 3 classes:
(i) Jus Civile (Civil Law)
(ii) Jus Genitum (Law of Nations)
(iii) Jus Naturale (Natural Law)
The Christian Period

Natural Law was considered as the Will of God and revealed to man through Holy Scriptures
(The Bible). All Laws, Government and Property were the product of Sin and so human laws are
contrary to law of God. Church is the exponent of divine law and could interfere and override the
state law and supremacy.
The Medieval Period
The Christian Religion influenced the idea of natural law in the medieval ages. St. Thomas
Aquinas made an attempt to harmonize the teachings of the church with those of natural laws. He
emphasizes that the man’s intellect and free will are closest to the image of god and according to his
wisdom. St. Thomas Aquinas divided the Law in two parts (i) Lex Eternal (Divine Law) and (ii) Lex
Naturalis (Human Law).
Lex Eternal = Divine Reason
Lex Naturalis = Human Reason
The Ultimate source of Human Reason is Divine Reason.
The Modern Period
The Renaissance, the reformation and the rise of national state marked the spiritual, social and
political revolution in the modern age. The principle of natural law attained a new subject matter to
the political philosophers The Development in the field of commerce and the colonization gave birth
to nationalism. New theories were propounded on sovereignty and “Reason” became the secularized
‘reason’ instead of ‘theological reason’.
15
CLC/AM/R/05

Grotius stated, “Natural Law is the dictate of right reason indicating that any act from its
agreement or disagreement with rational nature of man has in it a moral turpitude, consequently such
act is forbidden by God”. Grotius made it clear that, natural law would remain valid even if God did
not exist (rationalist enunciation of law).
Pufendrof, Leibnitz and Montesquieu further expounded the doctrine of natural law on the basis
of purely rational and secular in principle. Natural Law in 19 th Century. David Hume demolished the
law of nature and said all law is ‘human conventions’. Hence it became unpopular. This period
dramatically achieved development in physical sciences & social sciences through Darwin’s
hypotheses.
Natural Law in 19th Century
However the natural law was revived through Salmond’s reasoning of natural law.
(a) The desire to re-establish closer relation between law & morality.
(b) Dissatisfaction with command theory of Law (Austin’s definition of law).
c) The need for juristic basis for progressive interpretation of positive law where law could not
be applied.
d) The development of sociological theories and sciences.
e) The development of idea of relativity in modern jurisprudence (law according to time &
place).
f)
Kelson’s Pure Theory of Law
Hans Kelson (1881 – 1973) worked as a professor in Vienna University, hence it is also called as
Vienna School of Jurisprudence. He belonged to the 20 th Century. Hence he had an opportunity in
observing old theories and later developments in science and technology, political science,
economics, sociology and law. He belonged to Positivist School. He developed Austin’s Positivism
Theory in his own style and released his theory under the title “General Theory of Law and State”
in 1945 and named it as “The Pure Theory of Law”.
Important Characteristics of Pure Theory of Law

1. Is and Ought : Positivism theory differentiated “is” and “ought”. He gave the highest priority to
“Is” (ipso facto). He opined that, “A theory of law must deal with law as actually laid down, not as
it ought to be”.
2. Purity : A theory of Law must be free from ethics, sociology, ethics, history etc. Hence this
theory is named as pure theory of law.
16
CLC/AM/R/05

3. General Jurisprudence : He states that a theory of law should be uniform and it should be
applicable at all times and in all places. This is called “General Jurisprudence”. Where as
Particular Jurisprudence refers to Hindu Jurisprudence,
Islamic Jurisprudence etc..
4. Grund Norm : It means ‘basic’ or ‘fundamental’ or ‘base’. The Important principles are
‘norms’. The basis on which these principles are evolved are “Grund
Norms”.
Ex. Courts Impose Punishment on Wrong Doers
5. Normative Structure : Law is Normative in structure unlike physical sciences. All liberties are
within the normative structure.
6. Persons : There are Juristic Persons as well as Natural Persons. Kelson states that ‘whoever claim
their rights personally, they should be treated as persons’.
7. State : It is a legal process and system. As the state runs only through legal rules, process.
8. Public and Private Laws : Kelson states that there is no such division as public and private laws.
There can be only one legal process and system which controls sovereignty, government, state and
people.
9. International Law : Kelson considered International Law is greater than Municipal

Law in certain fields. Hence, the concept of “Global Village” prove kelson is right.
10. Precedents : Bentham criticized precedents, whereas kelson states that precedents are part and
parcel of legal process and system.
H.L.A. Hart’s Concept of Law
Herbert Lionel Adolphus Hart (1907) contributed several outstanding works in
Jurisprudence which includes “Concept of Law - 1961”. This theory helps in understanding Law,
Morality and Coercive Orders as different and related phenomenon. This Theory gave a bright new
understanding against the barren character of Austinian’s Legal Philosophy and established a new
form of law and society against the Austin’s analytical jurisprudence.
Hart’s Concept of Law is a System of Rules (Primary and Secondary Rules), the
Union of which explains the Nature of Law. Primary Rules are Duty Imposing Rules. Secondary
Rules are Power Imposing Rules. Rules concerned with what happens rather than what ought to be.
Rules are Imperative rather than descriptive. Hart rejects Austin’s Command Theory that Rule is a
kind of Command and Substitutes it to a System of Rules i.e. Primary and Secondary Rules. His
Theory explains that human conduct is obligatory where there is law. The Continuance of pre-
17
CLC/AM/R/05

existing laws cannot be explained on basis of command. Hart’s concept of primary and secondary
rules cannot be fulfilled without the content of natural law shared by law and morals. Hence Hart is
described as positive naturalist.
Contents of Jurisprudence
1) Sources
2) Legal Concepts
3) Legal Theory
Sources

Custom

Legislation

Precedent
Methods of Judicial Interpretation



Reasoning
Administration of Justice

Codification of Laws.
Legal Concepts

Rights

Titles

Property

Ownership

Possession

Obligations

Acts

Legal Personality

Intension

Negligence
Legal Theory

Law as a Dictate of Reason

Law as a Command of Sovereign

Law as practice of Court.

Law as a System of Rules.

Imperative Theory.
Growth of Jurisprudence
18
CLC/AM/R/05


Dark Age : Rome and Greece

Catholic Church – Theological Jurisprudence

Civil Law – Metaphysical Jurisprudence
UNIT III
Nature, Definition, Kinds & Classification of Law

Nature of Law
In Early Period, i.e., before the formation of state, law was based on beliefs and superstitions –
Quasi Law. After the formation of State, Customs and traditions forms as a part of Law. In England
it is called as Common Law. In India and Asian Countries Law is based on Religion. In Hindu
Society, Dharma and in Muslim Rule, Koranic Law.
In Middle Ages, St. Thomas Aquinas identified Law with religion and Morality. Christian
Thomasius and Immanuel Kant, differentiated Law (External Conduct) from Morality (Internal
Conduct). Hugo Grotius relied on Natural Law based on Social and Rational Nature of Men.
Austin Considered law as the formal commands of the sovereign and he terms law as the formal
science of law. Positivism, the Civil Law can exist even without the moral basis. It can even have a
conflict with natural law. Hans Kelsen defines positivist law as the “Sense” and “Will” of the People
which should be in accordance with “Grundnorms”.
Kinds of Law
Salmond referred the following kinds of Law.
1) Imperative Law
2) Physical or Scientific Law
3) Natural or Moral Law
4) Conventional Law
5) Customary Law
6) Practical or Technical Law
7) International Law and
8) Civil Law.
Imperative Law
19
CLC/AM/R/05

Austin was the chief exponent of the Imperative Theory of Law. Imperative law means, “a rule
which prescribes a general course of action imposed by some authority which enforces it by superior
power either by physical force or any other form of compulsion”.
Imperative Law is of two types,
1) Human Law and 2) Divine Law.
Human Law can further be of three kinds.
a) Civil law (state)
b) Law of positive morality (society)
c) Law of nations (states).
Physical or Scientific Law
Law of Nature, ex. Law of gravity, law of magnetic force etc.

Natural or Moral Law
Divine Law – Principles of right and wrong – based on religious or moral grounds.
Conventional Law
Outcome of the agreement with persons, groups etc.
Customary Law
Salmond Defines, “any rule of action which is actually observed by men, when a custom is
firmly established, it is enforced by the state as law because of their general approval by the people”.
Ex. Hindu Law, Muslim Law etc.
Practical or Technical Law
It refers to a set of rules and regulations which help in the easy and efficient execution in the real
world.
International Law
It is also called as Law of Nations. The term international law is coined by Jeremy Bentham in
1780. Since States are Sovereign and are not subordinate to any other authority, the law regulating
their relations “inter se” is only an international law, that is a law between, and not a supra national
law or law above the states.
International law is merely a positive morality
Austin’s View:- The Obtaining between nations is not a positive law for every positive law is set
by a given sovereign to a person or persons in a state of subjection to its author.
Holland’s View:- It is impossible to regard these international rules as being in reality anything
more than the moral code of nations.
International law is Law Strict Sense
20
CLC/AM/R/05

Austin’s contrary view based upon his defective definition of law:- If we accept Austin’s
view of Law as a command then international law is not a law at all.
Oppenheim’s View:- A body of rules for human conduct within a community which by
common consent of this community shall be enforced by external power.
Criticism by Salmond:- According to Salmond, Law is a body of rules applied by the courts in
the administration of Justice. To what extent the actual practice of law of nations can be enforced by
the states by the courts?
Practice of the United States
In United States, there is a provision in Article VI of the American Constitution,
“This Constitution, and the laws of the United States which shall be made in pursuance
thereof; and all Treaties made or, which shall be made under the authority of United States, shall be
bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
Thus, International Law having its source in a treaty to which the United States is a party is
definitely regarded as a part of the law of the United States.
Limitations to this principle are,
1. The courts give effect to only those provisions which are self-executing, i.e. such as can be
applied by the courts without additional legislation by congress.
Foster vs Neilson
2. When congress subsequently enacts a statute in conflict with a treaty provision, the courts
will give effect to the statute, though there is a violation of international law.
Even when there is no specific treaty in which United States is a party, the courts in the united
states apply the customary rules of international law as a part of the law of the land.
The Paquete Habana and Lola Case [(1899) 175 US 677]
Two fishing boats of spain with spanish flag – seized of in cuba by us warship – US Supreme
Court held capture as unlawful – unarmed honest pursuing & peaceful catching – exempt from
capture as prize of war.
Practice of the United Kingdom
In UK, ipso facto i.e. part of the land is not accepted.
Reg vs Keyn (1876) 2 Ex D 63 (Franconia Case)

21
CLC/AM/R/05

The Argument held that English Courts had Jurisdiction under International Law over a foreigner
for criminal acts done within three-mile maritime belt of the English coast. And over “high seas”
only for punishing pirates. This was rejected by the court. Hence led to the passing of the Territorial
Waters Jurisdiction Act, 1878 which gave jurisdiction to courts with three-mile maritime belt.
Position of Prize Law
It is branch of international law administered by the British Courts without reference to the
adoption in the legislature. This prize law is administered by the Admiralty Courts (Navy).
Zamora (1916) 2 AC 77, 91
Zamora a swedish vessel carrying cargo of copper from New York to Stockholm
– captured by British cruiser in 1915 – placed under custody of Prize Court – Prize Court is also
bound by the Acts of the British Parliament – bound to give effect to rules of law as understood in
international law – thus in England Prize Law is to be treated as part of municipal law.
Practice in India
Birma vs State (AIR 1951 Raj 127)

Birma was arrested and extradited by Dholpur magistrate to United Provinces under a treaty of
extradition entered between British Government and Dholpur State. The Petitioner contended under
Article 21 of Constitution of India that, his personal liberty could not be taken away except
according to procedure established by law.
The Government’s Contention of Treaty could be regarded as law was rejected.
Justice Ranawat observed that unless international law is not a law unless expressly made by
legislative authority.
View of Salmond
Prize Law is a Law in Strict Sensu :
With reference to Salmond’s definition, Prize Law is regarded as a “Law in Srtict Sensu”. It
satisfies the test as it is administered in Prize Courts.
International Law is a Conventional Law :
The Rest of the International Law is considered as a conventional law
because it does not satisfy the Salmond’s test for civil law. It is a law in strict sensu if
it is enforced by the courts, however salmond states that international law is a special law who agree
to be bound by it. Hence it is called as conventional law.
22
CLC/AM/R/05

International Law is not Customary Law :

Salmond rejects the view that International Law is not a Customary Law. International
Custom is not a International Law. It serves as an evidence to the international agreements which is
true source of International Law.
Civil Law
In Jurisprudence, when the word “Law” is used, it is used in this context i.e. civil law.
1. It is Enforced by State
2. It is territorial in nature
3. Derived from roman word ‘jus civile’.
Dr. Sethna defines civil law as
“The body of statutes, ordinances, rules made by the government by virtue of powers given
to it by the legislature, and judicial decisions based on positive morality, public opinion, customs and
conventions, enforced through the machinery of judicial process, and meant for regulating the rights
and duties of citizens inter se, and the state and the citizens, so as to secure the greatest good of the
greatest member”
Characteristics of Civil Law
1. Civil law means positive law.
2. It is uniform and established by judicial precedents.
3. It is constant and stable.
4. It is forcefully executed by the state.
5. It is enjoyable by people who adopt it.
6. It is territorial in nature.
7. It creates legal rights.

8. Infringement attracts negative sanctions.
Classification of Law
Prof. Holland classifies Law into the following –
1. Private and Public Law.
2. General and Special Law.
3. Antecedent and Remedial Law.
4. Substantive and Procedural Law.
5. Law in rem and in personam.
23
CLC/AM/R/05

Private and Public Law

Law which regulates and governs within people is called private law and within people and state
is called public law.
Public Law can be subdivided into
(a) Constitutional Law, and
(b) Administrative Law.
Constitutional Law
Hibbert defines,
“the body of set of rules governing the relation between the sovereign and his subjects and
the different parts of the sovereign body”.
Dicey defines,
“Constitutional Law includes all rules which directly or indirectly affect the distribution or
exercise of the sovereign power of the State. Hence it includes all rules which define the members of
the sovereign power, all rules which regulate the relation of such members to each other, or which
determine the mode in which the sovereign power or the members thereof, exercise their authority”.
Hence from these definitions we come to a conclusion that Constitutional Law deals with the
fundamental and far-reaching principles governing the structure of the State.
Austin’s View :
According to Austin, Law is a command of the Sovereign and Sovereign himself is not
bound by law as one cannot be bound by his own commands. Constitutional Law however purports
to control sovereign and Austin concludes that it is not positive law but mere positive morality.
Willoughby’s Criticism:- Willoughby points out that “Constitutional provisions does not
purport to bind the State but the Government. This vital distinction Austin did not grasp”.
Whereas in rigid Constitutions the sovereign is undoubtedly cramped by constitutional
limitations.
Salmond’s View:- Salmond says that, “Law is the body of principles applied by the court in the
administration of Justice”. The principles of constitution relating to the structure and operation of
sovereign are enforced by the courts. Thus constitutional law is a law in strict sense.
Administrative Law
24
CLC/AM/R/05

Administrative Law is the law which defines the organization, powers and duties of the
administrative authorities. Ivor Jennings defines it as “the law relating to the administration. It
determines the organization, power and duties of administrative authorities”.
Dr. Holland differentiates the Administrative Law with the Constitutional Law. Constitutional
Law deals with various organs of sovereign power while administrative law deals with those organs
are with motion.
According to Dicey, Administrative Law determines,
The Constitution and the relations of those organs of society which are charged with the care
of those social interests which are the object of public administration, by which the term is meant
with different representatives of society among which the state is the most important and the relation
of the administrative authorities towards the citizens of the state.
General and Special Law
• General Law means territorial law, general or ordinary law of the land.
• According to Salmond, General Law consists of Legal Rules which are recognized by the
courts as a matter of course. Special Laws are legal rules which are not recognized and
applied by the courts as a matter of course but have to be specifically proved and brought to
the notice of the court by interested persons.
Special Law
Special Law can be classified into,
• Local Law – Local customary Law or Local enacted law ex. Madras City
Improvement Trusts Act, 1950.
• Foreign Law
• Conventional Law
• Autonomic Law – established by private persons to which sovereign power lends its
authority.
• Martial Law – Military Law.
• International Law
Common Law & Equity Law
25
CLC/AM/R/05

Earlier in England, there are two kinds of Courts namely : Equity Courts ( Courts of
Chancery) and Common Law Courts. Equity Courts used to decide cases applying the
principles of Justice, Equity and Good Conscience. The Common Law Courts used to decide
cases basing on the principles / rules evolved by the judges during judicial pronouncements.
Hence, the Common Law is also called as “Judge-Made”
•
Law. The Equity Courts and Common Law Courts were merged with the passing of the
Judicature Act, 1875. In India, almost all laws are originated from British Law.
UNIT IV
State and Sovereignty
State
The term State is derived from the Latin word “Status” which means “standing” that is position
of person or body of persons. It is difficult to give a precise definition of state. Certain Well known
definition of State is defined by various Jurists. They are:
Definition

Sir John Salmond defines State as, “An Association of Human Beings established for the
attainment of certain ends by certain means, the ends being defense against external enemies
and the maintenance of peaceable and orderly relations within the community itself”.

Grotious has defined State as “the complete union of freeman who join themselves for the
purpose of enjoying law and for the sake of public welfare”.
The Elements of State


A State is a community of considerable number of persons, occupying a territory
permanently, and independent of external control and having an organised government to
which habitual obedience is rendered by the inhabitants within its jurisdiction.

Population
26
CLC/AM/R/05


Territory

Government

Sovereignty

Origin of State
The Theories with regard to origin of State are,


The Force Theory

The Divine Theory

The Social Contract Theory

The Natural Theory

The Historical or Evolutionary Theory.
Functions of State

The Primary Functions include, maintenance of law and order within its defined territory.
(Constituent Functions)

The Secondary Functions include Welfare activities like legislation, taxation, etc. (Ministrant
Functions)
Relationship between Law and State


State is Superior to law and makes it – Analytical / Logical school.

Law is anterior to State – Historical / Natural law School

Law and State are the same – Theory propounded by Kelson
Classification of State

Unitary State
27
CLC/AM/R/05


Federal State

Features of Federal State

Federal Contract

Division of Sovereign Power

Rigidity of Constitution

Supremacy of the Constitution
Sovereignty
Sovereignty is the chief attribute of a state. The Sovereignty means, “Supremacy” or “Right to
demand Obedience”.
Sovereignty can be classified into
(i) Internal Sovereignty
(ii) External Sovereignty.
Evolution of the concept of Sovereignty

Machiavelli developed the idea of State Absolutism during the middle ages i.e. during
reformation and renaissance. State as an independent unit free from church or natural law. Bodin
referred Sovereign in his book, “De la Republique”. He States that Ruler is the Source of all Laws.
28
CLC/AM/R/05

UNIT V
Sources of Law
Legislation as a Source of Law
Legislation as a source of law is explained by Roman Lawyers as Jus Scriptum. Jus non
Scriptum includes the Customary Law. Jeremy Bentham and Austin
Signifies that Legislation signifies a form of Law making. The term is referred on the basis of
Evolution.
Supreme and Sub-Ordinate Legislation
Supreme Legislation is something which cannot be invalidated by any other legislative
authority. Sub-ordinate Legislation lacks this feature and is subject to the control of the
Superior Legislative Authority.
Forms of Sub-Ordinate Legislation

(a) Colonial
(b) Executive
29
CLC/AM/R/05

(c) Judicial
(d) Municipal
(e) Autonomous Legislation
Direct and Indirect Legislation

The Framing of Laws by the Legislature is direct legislation. The Declaration of Legal
principles by other sources to whom law-making power is confined by the legislature is an
instance of indirect legislation.
Delegated and Conditional Legislation
When a legislature confers law making power upon some other body, the legislative
power is said to be delegated. When the Legislature enacts Law and gives to some other body
the power of determination is called as Conditional Legislation.
Judicial Interpretation of Statue Law
Interpretation = The Particular way in which the meaning is understood.
Grammatical Interpretation = The Meaning of the Legislator is to be sought in the actual
words used by him, which is understood in their ordinary and natural meaning. It is also
called as literal rule of interpretation.
Golden Rule of Interpretation = Golden Rule of Interpretation allows a Judge to depart from
a word’s normal meaning in order to avoid an absurd result.
Mischief Rule of Interpretation = It is a narrower application to the Golden Rule. The Main
aim of the Rule is to detect the defect and mischief in the statute as a remedy.
Logical Rule of Interpretation = It involves going behind the Language used in the statute for
the ascertainment of its meaning and is restored to when grammatical interpretation fails to
meet the case.
Equity of a Statute = It is a rule of Statutory Construction which says Statute should be

interpreted according to the legislator’s purpose and intent even if it goes beyond the literal
meaning of the text.
Rule of Cases Omissus = A situation omitted or not provided by the statute is therefore
governed by common law.
30
CLC/AM/R/05

Rule of Ejusdem Generis = The Words of the Statute should be understood in their own
context. When general words are used in a context it should be read in par in which the
context deals explicitly or implicitly.
Precedent
Precedent means a judgment or a decision of the court cited as an authority in deciding
similar set of facts. Salmond gives two meanings to precedent.
(i) Loose Meaning – reported, cited and followed. Prevailed upto 19 th Century in England.
(ii) The Strict Meaning – gives authority and is followed. Prevailed from 19 th to 20th Century.
Authority of Precedents in English Law

The Judicial precedents were given a high respect in English Law by virtue of their
power, skill and professional reputation. Salmond states that, this was possible by the
combination, and concentration of justice in the royal courts and standardization of the
publication of law reports
Authority of Precedents in Indian Law
Our system has adopted English Law. The Privy Council contributed to a greater extent
by its authoritative influence of its decisions. As the privy council followed the principles of
Equity, Justice and Good Conscience in India. Presently, the privy council is replaced by the
Supreme Court of India. Article 141 of the Constitution of India states, “Law declared by
Supreme Court to be binding on all Courts”.
Authoritative and Persuasive Precedents

Authoritative Precedent is a one which comes from the superior court and is followed
in subordinate courts. Ex. Supreme Court under Article 141 of Constitution of India –
Legal Source

Persuasive President is one which judges are under no obligation to follow. Ex.
Foreign Judgments – Historical Source.
Original and Declaratory Precedents


Original Precedent is a one which creates and applies a new rule. Very few are
Original Precedents.

Declaratory Precedent is one which is merely the application of an already existing
rule of law. There are numerous declaratory precedents.
31
CLC/AM/R/05

Circumstance in which the Binding force of precedent is weakened
1. Abrogated Decisions – Cancelled Decisions

2. Affirmation or Reversal on Different Ground.
3. Ignorance of Statute
4. Inconsistency with earlier decision of higher courts
5. Inconsistency with earlier decision of same rank.
Maxims with reference to Precedents

Ratio Decidendi – reasons or proper grounds for proper decision.
Donogue vs Stevenson
Ratio Decidendi in this case are:

1. A – the defendant was the manufacturer of a ginger beer.
2. There was a decomposed body of a dead snail in the bottle which caused ill-health
and A is responsible.
3. There was a contract between A and his retailer to supply the goods. Even if there is
no contract, then also A is liable as A violated his duty of care.
4. The distributer was unaware as he trusted the manufacturer and sold it in a bona fide
intension.
5. Except the plaintiff and his girlfriend no one else did not observe the decomposed
body of dead snail.
6. The health of plaintiff’s friend spoiled because of drinking the ginger beer.
Obiter Dicta
Obiter = by the way
Dicta = sayings
An obiter dictum is a statement made by a judge in the course of his judgment which may
not be precisely relevant to the issue before him. It has no binding authority and is the by-
product of original judgment and remarks and opinion of the judges.
Stare Decisis
Stare decisis = see the decisions.
Stare decisis is a principle of law which become settled by a series of decision generally
binding on courts and should be followed in similar cases. This helps the courts to dispose
the cases in early, efficient and decent manner and also reduces the expenses and increases
the convenience of the courts.
32
CLC/AM/R/05

Custom as a Source of Law

Important Factors in which custom acts as a source of Law
1. The Custom arose from the principles of Natural Justice.
2. Salmond Quotes, “Custom is to Society what law is to State”. This means State has
the power to make laws and to enforce them, whereas custom is the external and
visible sign of national conscience.
3. Stability and Certainty
4. Custom – Religion
5. Certain Customs Stronger than Law.
Essentials of a Valid Custom

1. Reasonableness
2. Conformity with State Law
3. Observance as of Right
4. Immemorial Antiquity.
5. Opinio juris et necessitatis : General Practice accepted as law.
6. Certainity
7. Consistency
Kinds of Custom

Legal Custom = According to Salmond, Legal Custom is something which is
operative per se and has binding force of rule of law. It has immemorial antiquity. Its
legal authority is absolute.
33
CLC/AM/R/05


Local Custom : It prevails in some defined locality only and constitutes a source of
law.

General Custom : It is observed by all the members and prevails throughout the
country.

Conventional Custom = Salmond states that, Conventional Custom is one whose
authority is conditional on its acceptance and incorporation in agreements between the
parties to be bound by it. An Usage is also called as conventional custom. It does not
have a binding force unless expressly agreed by the parties.
34
CLC/AM/R/05

UNIT VI
Administration of Justice
Meaning
Salmond gives the meaning of Administration of Justice as, “The Administration of
Justice is the maintenance of right within a political community by means of the physical
force of the State.”
Kinds of Justice
Advantages of Administration of Justice

• Uniformity and Certainty
• Protection against Arbitrary Decisions
• Collective Wisdom
• Actus Curiae neminem gravabit = The act of the court harms no one
35
CLC/AM/R/05

• Legal Aid
Dis - Advantages of Administration of Justice
• Rigidity
• Conservatism
• Formalism and Technicality
• Complexity
• Expensive
• Delayed Justice
• Chances to Escape
Theories of Punishment under Criminal Justice Administration
• Deterrent Theory – Warning
• Preventive Theory – Death
• Reformative Theory
• Retributive Theory – tit for tat
• Compensation.
36
CLC/AM/R/05

UNIT VII
Juristic Concepts
Rights and Duties

• Salmond Quotes, “Right, like wrongs and duties, are either moral or legal. A moral or
natural right is an interest recognized and protected by a rule of morality – an interest
the violation of which would be a moral wrong, and respected for which a moral duty.
A
legal right, is an interest recognized and protected by a rule of law – an interest the violation
of which would be a legal wrong done to him whose interest it is, and respect for which is a
legal duty”.
• Rights and Duties
• Pallock Quotes, “A Right is a freedom allowed and power conferred by Law”.
• Buckland Quotes, “A legal right is an interest or an expectation guaranteed by law”.
• Green Quotes, “Rights are powers which it is for general well-being that the
individual should possess”.
• Characteristics of a Right
• According to Salmond, every legal right has five characteristics. They are :
1. It is vested in a person who may be distinguished as the owner of the rights.
2. It avails against a person, upon whom lies the correlative duty.
3. It obligates the person bound to an act or omission in favour of the person entitled.
• Characteristics of a Right
4. The act or omission relates to something, which may be termed the object or subject –
matter of the right.
5. Every legal right has a title, i.e., certain facts or events by reason of which the right
has become vested in its owner.
• Right in a Wider Sense

37
CLC/AM/R/05

The Legal Right is a Wider Sense are four distinct kinds.

1. Rights
2. Liberties
3. Powers
4. Immunities.
It’s Correlatives are:

1. Duty
2. No-Rights
3. Liabilities
4. Disabilities
• Right in a Wider Sense
Dr. William arranged these rights in the following table.

• Relationship between Right and Duty
According to Dicey, “Duty is a species of Obligation. The Breach of duty is imprisonment or

Fine”.
1st Theory : Right and Duties are correlatives
This theory is
supported by paton, salmond, gray,keeton, etc. According to this theory, a right is an interest
in respect of which there is a duty and violation of which is wrong. Ex. Duty towards Master,
Child towards Parents, Citizen towards country.
• Relationship between Right and Duty
2nd Theory : Right and Duties are not correlatives

Austin, Allen,
etc. are supporters of this theory. Austin divides duties into two types,
(a) Absolute Duties : Complete and Unconditional Duties without any Corresponding
Right. Ex. Duties towards State, Duties owned to God, Duties owned to lower
animals, etc.
(b) Relative Duties : They are similar to those duties which are correlative to a
corresponding right as explained in the 1st Theory.
• Classification of Rights
38
CLC/AM/R/05

Salmond classifies rights to 7 ways :

1. Legal Rights with material objects – land, house, etc.
2. Legal Rights with immaterial objects – trademarks, copyrights, etc.
3. Legal Rights of one’s own person – right to speak, health, liberty, etc.
4. Legal Rights of reputation – defamation, etc.
• Classification of Rights
5. Legal Rights of Services – advocate – client, doctor –patient, etc.
6. Legal Rights of Personal Rights : wife – husband, brother – sister, etc.
7. Legal Rights Pertaining other matters : Mortgage, Debenture, Share, etc.
• Kinds of Rights
1. Perfect and Imperfect Rights
2. Positive and Negative Rights
3. Rights in rem and Rights in personam
4. Proprietary and Personal Rights
5. Rights in re propria and Rights in re aliena
6. Principal and Accessory Rights
7. Primary and Sanctioning Rights
8. Legal and Equitable Rights
9. Vested and Contingent Rights.
Titles
• Salmond says, “Every right involves a title or source from which it is derived. The
title is the de facto antecedent of which right is the de jure consequent”. When law
confers a right upon a person which means certain facts are true of him and these
facts are title of the right.
39
CLC/AM/R/05

• Fact
• Section 3 of Indian Evidence Act, 1872 defines Fact.
Fact means and includes,

(1) anything, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.
• # Physical Fact & Psychological Fact.
• Titles
• Titles means Vestitive Facts. Vestitive Facts means “Vesting of certain facts in a
person”.
• Investitive Facts
• Investitive Facts are Facts which confer Rights, which are creative in nature. It is
divided into original and derivative in nature. Catching fish, writing a book are
examples of original titles. Purchasing a fish, purchasing a book from the publishers
are examples of derivative titles. The Investitive facts are positive in character.
• Divestitive Facts
• These Facts cause deprivation of rights. They are destructive in nature. It can be
divided into Alienative facts and Extinctive facts. Eating a fish, burning a book are
examples of extinctive facts. Selling a fish, selling copies of books are examples of
Alienative facts. The Divestitive facts are negative in character.
Person
• Gray defines, “In legal theory, person means any entity to which rights and duties
may be attributed”. Persons can be classified into natural and legal persons.
• Natural Person
• Natural Person is a real and a living Human being. He has characteristics of power of
thought, speech and choice. He performs his functions and also the function of the
legal persons. He is also the legal person.
• Legal Person
40
CLC/AM/R/05

• Legal Person is a being whom law regards as capable of rights and duties. Legal
Persons are fictious, juristic and artificial. All Legal persons are not natural persons.
There are different varieties of legal persons, Ex. Corporations, Companies,
Universities, Societies, etc.
• Legal status of the Lower Animals
• Animals are not treated as natural persons, they do not posses any rights or duties.
They are objects just like other things, viz. buildings, carts, books.
• According to “distrained damage feasant” , when an animal caused an injury to men

it is detained unless the owner of it pays compensation.
• According to Scienter Rule (The Knowledge Rule) Animals are classified into 1)
Dangerous by nature (ferae naturae), 2) Harmless by nature (mansuetae naturae)
• Legal status of Dead Persons
• Dead Person does not have any right.
• In Tort : “Actio personalis, moriture cum persona”. The personal right of action dies
with the person.
• In Criminal : The proceedings stops when the Accused is dead.
• In Civil : After the death of the party to suit the rights of the legal heir are protected
and not the dead person. In case of mortgage or a debt, the properties of dead man are
sued by the creditors. Similarly the estate of the dead person goes according to his
will and to his legal heirs is no will prevails else go to state (Escheat).
• Legal status of Unborn Persons
• An Unborn Person is treated as a legal person. A child in a mother’s womb is legal

person. The main condition is that the unborn person should come into existence
before the expiry of the prior estate.
Liability
• Liability means legal responsibility. i.e., it is the state of a person who is held
responsible for his acts by the law and justice.
• Liability is of two kinds :

41
CLC/AM/R/05

(a) Civil Liability – arises out of contracts (Rights in Personam)
(b) Criminal Liability – against the person and society (Rights in Rem)
• Tortious Liability
• The term “Tort” has been derived from the latin term “Tortum” which means “to
twist”, “crooked conduct”, “a wrong”, etc.,
• Essential Elements of a Tort :
1. Breach of some duty by the defendant (legal duty).
2. The Plaintiff must have a remedy of legal damages from the defendant.
• Legal Damages
• Liquidated Damages – calculated before its breach
• Unliquidated Damages – not assessed before such harm occurs.
• Injuria Sine Damno – Legal injury without damage. Compensation has to be paid.
Ex. Trespass, Defamation.
• Damni sine Injuria – Damage without Legal Injury. Need not pay compensation. Ex.
Competition between Rivalries.
Negligence
• MENS REA
• The term “Mens rea” is based on a famous English maxim of Criminal Law “Actus
non facit reum, nisi mens sit rea” which means “The act itself does not constitute
guilt unless done with the guilty mind”.
• Intentional wrongs – Level of Mens rea for liability.
• Wrongs of Negligence – Mens rea not seen.
• Wrongs of Strict Liability – no need for Mens rea
• Mis-Statements
• Decit or Fraud – Highly Liable, damages are calculated by the plaintiff.

42
CLC/AM/R/05

• Negligent Mis-Statements – is liable for damage
• Innocent Mis-Representation – not liable for damage.
• Jus Necessitatis
• Jus Necessitatis is an abstract phrase of the maxim “Necessitatis non habet legem”
which means “Necessity has no laws”. There is no liability when the act is done
based on this doctrine. Ex. Section 81 of IPC, 1860.
• Negligence, Remoteness of Damage, Nervous Shock, Strict Liability, Vicarious

Liability and Mistake of Fact – Inevitable Accident, Culpable Accident.
Ownership
Austin defines, “Ownership means a right which avails against everyone who is subject to
the law conferring the right to put thing to user to indefinite nature”.
Analysis of Austin’s Definition:
1. User of Indefinite Nature
2. Right to transfer
3. Permanent
4. Heritable.
• Ownership
Essential Characteristics of Ownership :

1. Possession
2. Use
3. Consume, Destroy and Alienate
4. Perpetual
5. Heritable
6. Residuary.
Ownership is obtained by Original and Derivative methods. Ownership can be classified as

sole and co-ownership.
43
CLC/AM/R/05

Possession
Maine defines, “Possession is the physical detention coupled with the intention to hold the
thing detained as one’s own”.
Salmond defines two essential elements of possession :
1. Animus Possidendi – Intention to possess
2. Corpus Possessionis – Property to possess.
Possession can be classified into De facto and De jure Possession

• Kinds of Possession
1. Immediate and Mediate Possession – Direct and Indirect Possession.
2. Corporeal and Incorporeal Possession – Tangible and Intangible Possession
3. Representative Possession – Servant Possession
4. Concurrent Possession – possession held by 2 or more persons.
• Kinds of Possession
5. Derivative Possession – bailor bailee, pledger pledgee
6. Constructive Possession – posession given for benefit of the owner. Ex. Tenant
7. Adverse Possession – Unlawful Possession in the absence of rightful owner.
8. Duplicate Possession – possessed by 2 or more persons. Ex. Partnership
• Property
The Term Property is a synonym to the right of Ownership.

• Modes of Acquisition
Salmond Propounded that there are four modes in which a property can be acquired. They
are:
1. Possession
2. Prescription
3. Agreement and
4. Inheritance.
44
CLC/AM/R/05

Obligations
Salmond states, an obligation is a duty. It is a bond of legal necessity which binds two or
more individuals. Ex. Debtor and Creditor.
Obligation can be divided into to kinds.
1. Sole Obligation – one debtor and one creditor.
2. Solidary Obligation – community of interests.
Solidary Obligation can be classified into (i) Several (ii) Joint and (iii) Joint and Several.
• Sources of Obligations
1. Contractual Obligation - Agreement
2. Delictal Obligation - Tortious
3. Quasi-Contractual Obligation – Constructive Contracts
4. Innominate Obligation - Nameless
Faculty Name: A. PREM KUMAR

Signature:
45

Juris

Uploaded by

Copyright:

Available Formats

Juris

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Juris

Uploaded by

Copyright:

Available Formats

CLC/AM/R/05

The Central Law College

Nature and Definition of Jurisprudence

Jurisprudence is a name given to certain type of Investigation into Law. Investigation of an

In France = “la philosophie du droit”

The Central Law College

Jurisprudence and history

Jurisprudence and Ethics

The Central Law College

The Central Law College

The Central Law College

Example for General and Particular Jurisprudence

The Central Law College

It is the general or philosophical part of systematic legal exposition. This is division

The Central Law College

The Central Law College

Analytical School of Jurisprudence

The Central Law College

The Central Law College

The Central Law College

The Central Law College

The Central Law College

The Central Law College

Positive Justice = Principles of Law / Law of the Land

The Central Law College

The Christian Period

The Central Law College

Important Characteristics of Pure Theory of Law

The Central Law College

9. International Law : Kelson considered International Law is greater than Municipal

The Central Law College

Methods of Judicial Interpretation

The Central Law College

Nature, Definition, Kinds & Classification of Law

The Central Law College

Physical or Scientific Law

Law of Nature, ex. Law of gravity, law of magnetic force etc.

The Central Law College

Reg vs Keyn (1876) 2 Ex D 63 (Franconia Case)

The Central Law College

Birma vs State (AIR 1951 Raj 127)

The Rest of the International Law is considered as a conventional law

The Central Law College

International Law is not Customary Law :

Dr. Sethna defines civil law as

7. It creates legal rights.

The Central Law College

Private and Public Law

The Central Law College

Common Law & Equity Law

The Central Law College

State and Sovereignty

The Elements of State

The Central Law College

The Theories with regard to origin of State are,

Relationship between Law and State

The Central Law College

Evolution of the concept of Sovereignty

The Central Law College

Legislation as a Source of Law