Jurisprudence

1. Discuss the value of jurisprudence

Value of Jurisprudence:

The value of Jurisprudence can be summarized as follows:

1. The Philosophy of law is the basis for legal rules

2. It has great advantage in the study of legal system
3. The Knowledge of law is essential while making law
4. Jurisprudence is concerned with what and how the law should be
5. Jurisprudence has educational value
6. It provides the rules of interpretation
7. It helps in ascertaining the true meanings of laws
8. The legal concepts sharpens lawyer’s logical technique
9. It makes the lawyer to bring theory and life into focus
10. It analyses, clarifies, clears overlapping of legal rules
11. It provides interdisciplinary approach in the social context.

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Definition of law

The term “Law’ denotes different kinds of rules and Principles. Law is an instrument which regulates
human conduct/behavior. Law means Justice, Morality, Reason, Order, and Righteous from the view
point of the society. Law means Statutes, Acts, Rules, Regulations, Orders, and Ordinances from
point of view of legislature. Law means Rules of court, Decrees, Judgment, Orders of courts, and
Injunctions from the point of view of Judges. Therefore, Law is a broader term which includes Acts,
Statutes, Rules,

Regulations, Orders, Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees,
Judgment, Orders of courts, Injunctions, Tort, Jurisprudence, Legal theory, etc.

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.

Generally the term law is used to mean three things:

First it is used to mean “legal order”. It represents the regime of adjusting relations, and ordering
conduct by the systematic application of the force of organized political society.

Secondly, law means the whole body of legal Percepts which exists in a politically organized society.

Thirdly, law is used to mean all official control in a politically organized society. This lead to actual
administration of Justice as contrasted with the authoritive material for the Guidance of Judicial
action. Law in its narrowest or strict sense is the civil law or the law of the land.

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Jurisprudence

The term ‘Jurisprudence’ was derived from the Latin word ‘Jurisprdentia’ which means “the
knowledge of the law” or “the study of law”. The origin of the practice of studying law in the form of
Jurisprudence started in Rome at the beginning.

The term Jurisprudence has at different times been used in different senses; sometimes as
synonyms of law; sometimes as a philosophy of law; and sometimes as the science of law. Presently,
Jurisprudence is aptly termed as the “Legal Theory”.

According to Salmond - Jurisprudence is the name given to a certain type of investigation into a law,
an investigation of an abstract, general and theoretical nature which seeks to lay bare the essential
principles of law and the legal system.

Nature of jurisprudence

The nature of Jurisprudence is similar to science, it is not an art. In fact, it is a progressive science.
Jurisprudence merely does not connote the understanding or grasp over the law. It covers a field
much wider than this.

Jurisprudence does not contain any set ideals and postulations, nor does it have any practical
application. It is just the bare tenets of the law. It has not been acquired from any authentic and
factual source. Salmond puts that Jurisprudence is the subject different from all other subjects of
law. Subjects like Law of Contract, Tort and Evidence consist of a set of rules derived from
authoritative sources and are applied to factual situations in order to solve practical problems.
However, Jurisprudence does not consist of a set ordinances and precepts; it is not derived from any
authoritative sources and is without any practical application. In other legal subjects, we look for a
rule relevant to a given situation whereas, in Jurisprudence, we ask what it is for a rule to be a legal
rule and what distinguishes law from morality, etiquette and other phenomena. In this sense,
jurisprudence comprises the philosophy of law.

Paton has rightly said regarding the nature and scope of jurisprudence, that, modern Jurisprudence
treads on the fields of social science, and philosophy; it gets deep into the history in order to create
the symmetry of a garden out of luxuriant chaos of the clashing judicature. He has also said that
Jurisprudence is the specific procedure of study of the prevalent notions of law; it is not the law of
any specific country.

Julius Stone has very beautifully put forward the nature of Jurisprudence by saying, “It is a chaos of
approaches to the chaos of topics chaotically delimited”.

Scope of jurisprudence

1. It has both, the theoretical value as well as practical value at the same time.
2. It gives, to general prudent person, the understanding of the nature of law.
3. It helps in and makes easy the study of the actual meaning of the law.
4. It has educational value.
5. It is often denoted as the ‘eye of law’.
6. It throws light on the basic ideas and the Fundamental Principles of law in a given society.
7. It helps judges and lawyers in ascertaining the meaning of words and expressions in statutes.

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Schools of Jurisprudence
Jurisprudence analyses conceptions of law. It also seeks to figure out what the basic concepts of law
are. It not only analyses the already defined laws but also analyses and sets the foundation for new
rules. It is the product of Jurists ‘and Philosophers’ thought. They have the right to view, analyse and
comment about the legal system. As such, it can be viewed as an analytical exercise that does not
have immediate practical application. It sets the tone for legislative change.

Jurisprudence binds laws to other fields, such as psychology, politics, economics etc. The scale
constantly shifts. It is not derived from any legislative act or state assembly. Lord Tennyson calls it,
Lawless subject of law. Various concepts like Origin of law, need of the law, the utility of the law are
studied by various Jurists. This study of concepts of law is called Jurisprudence.

Jurisprudence offers answers to multidimensional legal questions. It helps in overall growth of

society. It enhances the capacity of the lawyer to justify rational reasoning. It blesses or hastens a
lawyer’s skill with a sense of philosophy, ethics and morality which helps them move forward in their
discipline. There are also occasions when there are loopholes in the rules; Judges choose the path of
Jurisprudence at those periods. Jurisprudence is the theoretical foundation of the law, and without
it; it is not possible to enforce the law in effect.

Schools of Jurisprudence

1) Analytical or Imperative School (Positivism)

a) Bentham’s concept of Law

b) Austinian Concept of Law
c) Hart’s Concept of Law
d) Salmond’s Concept of Law

2) Philosophical school or Natural law school

3) Historical School
4) Sociological School
5) Realist School

1) Analytical or Imperative School (Positivism)

The analytical school is constructive ‘in its approach to social legal issues. It focuses on things as they
are and not what they should be. The positivists’ main concern is the statute, which is currently
considered positum, and not the ideal Law. Legislation, judicial precedents and common law are the
most relevant legal sources.

Analytical school’s motto is “Ubi civitas ibI lex” i.e. “where there is State, there will be no anarchy”;
State is a necessary evil.

The main proponents of this school are: Bentham, Holland, Austin, Salmond, etc:

a) Bentham’s concept of Law:-

Bentham (1748-1832), the founder of Positivism, should be considered the father of analytical
positivism, and not Austin, as is generally assumed (Austin owes much to Bentham, in fact). He was a
codified law (Legislation) fighter. The purpose of Bentham’s work was to ensure the indispensable
implementation of a civil code.

Bentham differentiated expository jurisprudence from censorial jurisprudence (i.e., what the law
should be). His definition of law is imperative, i.e. law is the assembly of signs, statements of will
conceived or embraced in a state by a sovereign.
According to him, the role of law must be to achieve these ends, i.e. providing food, creating wealth,
fostering equality, and preserving security. Bentham’s philosophy of hedonism or pain and
satisfaction principle has been questioned on the basis that suffering and pain alone cannot be the
only measure of the law’s adequacy.

b) Austinian Concept of Law:

John Austin (1790-1859) was a professor at the University of London. He applied empirical method:
Law should be carefully examined and evaluated, and the underlying theory should be discovered
and his area of analysis limited only to the Positive Law (Jus positivism).

Law, so-called simply and strictly law, set by political superiors to inferiors. Thus, the school he
founded is called by different names, logical, positivistic and analytical positivism. Austin is believed
to be the founder of English jurisprudence.

Austin defined law as a rule set for an intelligent being’s guidance by an intelligent being having
power over him. According to him, so-called proper law includes: law of God, laws of man and rules
of positive nature.

According to him every rule, properly named, must have three elements, command, sanction and
sovereign elements. According to him, law is a sovereign’s order, which mandates his subjects to do
or refrain from such actions. If the order is not obeyed, an implicit threat of a punishment occurs.

c) Hart’s Concept of Law:

Professor Hart (1907) can be regarded as the leading representative of British positivism in the
present day. He wrote an important book “The Law’s Definition”, questioning the theory of Austin.
According to Hart, Law consists of laws that are broad-based and non-optional in nature, but at the
same time appropriate for formalization, regulation and adjudication. He said law is a set of social
rules that acquire the character of legal laws (laws arising from social pressure). Law is a set of laws
which can be publicly ascertained. In Hart’s opinion, law is analogous to a legal structure.

According to Hart, there are two types of rules where the primary rule establishes norms of conduct
or imposes duties (i.e. international law), while the secondary rule is the rule under which the
primary rules may be created, added, omitted or changed. The secondary rules are public or private
(e.g. Laws, Constitution) rules which impart power. From these the rules of recognition are derived
and provide authoritative criteria for the identification of primary rules of obligation.

d) Salmond- He said that Jurisprudence is Science of Law. By law he meant law of the land or civil
law. He divided Jurisprudence into two parts:

1. Generic- This includes the entire body of legal doctrines.

2. Specific- This deals with the particular department or any portion of the doctrines. ‘Specific’ is
further divided into three parts:

1. Analytical, Expository or Systematic- It deals with the contents of an actual legal system
existing at any time, past or the present.
2. HistoricalIt is concerned with the legal history and its development
3. Ethical- According to him, the purpose of any legislation is to set forth laws as it ought to be.
It deals with the ‘ideal’ of the legal system and the purpose for which it exists.

2) Philosophical school or Natural law school

The school of philosophy or ethics is concerned primarily with the relationship of law to certain
principles the law is intended to achieve. It seeks to examine the reason for which it has passed a
specific law. It has no historical or analytical substance to it. This school’s most notable jurists are
Grotius (1583-1645), Immanuel Kant (1724-1804), and Hegel (1770-1831).These jurists do not
recognize law either as a ruler’s arbitrary order, or as the development of historical necessity. The
law is for them the product of human reason and its aim is to uplift and ennoble human personality.

3) Historical School

Law so closely touches real life that seeing the action of laws in their social setting is only normal.
The Functional Approach to Law (Historical and Sociological Schools) emphasizes actual social
circumstances as giving rise to law and legal structures, and is concerned not with the person but
with the associated man. The historical school arose as a response to legal theories promoted by
logical positivists (as they failed to meet people’s needs) and the thinkers of natural law. This
school’s motto is “Ubi societas ibi lex”, that is to say, “where there is culture, there is law.”

4) Sociological School

Auguste Comte was the first to use the term sociology, and is considered the father of sociology
research by some jurists. The approach used by Comte may be called scientific positivism. He pleads
for applying scientific method to sociological research. Society is like an organism and if it is driven
by scientific principles it will advance.

Herbert Spencer introduced the organic theory of society in a scientific analysis. He applied sociology
to the evolutionary pattern of society.

Duguit was influenced by Durkhiem who took inspiration from Comte himself. Durkhiem’s key
argument, on which Duguit focused himself, was that he made a distinction between two kinds of
men’s needs in society.

1. There are certain individual needs that are addressed by mutual assistance and
2. The needs of individuals are varied and met by the exchange of services.

Therefore the most critical aspect of social stability is the division of labor. He called it Unity with
society. This social cohesion grows through the creation of free individual activities.

5) Realist School

Sociological Jurisprudence in America formed an extreme wing under the realist school name. They
are concerned with researching the law as it operates and functions which means examining the
social forces that make a law on the one hand and the social consequences on the other. Instead of
abstracting logical deductions from general rules and the inarticulate conceptual premises
underlying a legal system, they focus more on what the courts can do.

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2. Explain law as command of sovereign

Definition of Law

“If a determinate human superior, not in the habit of obedience to a like superior, receive habitual
obedience from the bulk of a given society, that determinate superior is sovereign in that society,
and that society (including the superior) is a society political and independent. Furthermore, every
positive law simply sand strictly: so-called, is set, directly or circuitously, by a sovereign person or
body to a member or members of the independent political society wherein that person or body is
sovereign or supreme.”

The Imperative Theory of Law was given by John Austin, an American legal philosopher who has
been a huge influence on modern-day understanding of Law. His ideas about Law form the basis of
defining and understanding law. Sure, his ideas have been refuted and challenged by a lot of
contemporary philosophers, but they still remain relevant and remain a focal point for the
understanding of Law.

Imperative Theory of Law in its simplest terms can be defined as “command of the sovereign backed
by sanction”. Imperative theory says that law is whatever the political sovereign of a certain state
says law is. This law needs to be backed by legitimate sanction that is punishment or penalty for
violation.

Austin’s Theory of Sovereignty Explained

The definition of law according to Austin was, “Law is a command of the sovereign backed by a
sanction.” Breaking this definition into its fundamentals: –

 Command, of
 Sovereign, which if not followed attracts
 Sanction.

Now in order to fully understand Austin’s theory of Legal positivism, let us explain these elements in
a concise and comprehensive manner.

Command: Commands are expressions of desire given by superiors (sovereign) to inferiors (general
public). There are commands which are laws and which are not, Austin distinguishes law from other
commands by their generality. Laws are general commands, unlike commands given on parade
grounds and obeyed there then by the troops.

Observation: From the above definition we can conclude that Austin’s definition of commands gives
the sovereign authority status of ultimate supreme, and imply that the authority of the sovereign is
absolute, which is the opposite of the constitutional framework which prevails in India, and for that
matter in any peaceful democracy. This definition expresses that the sovereign, that is, the
person/people in power is politically superior, but in democratic countries, it is not true. Every
citizen has the same right same that of a President/Prime Minister/Chief Justice.

Sanction: This term is derived from Roman Law. According to Salmond “Sanction is the instrument of
coercion by which any system of imperative law is enforced. Physical force is the sanction applied by
the state in the administration of justice.

Idea of the Sovereign

According to Imperative theory of law, there are three conditions a person needs to meet to be
considered as Sovereign in a state:

1. The Sovereign’s power must be unlimited and indivisible.

2. The Sovereign must be clearly located and easily identifiable.
3. The commands of the Sovereign must be considered Law.
The Sovereign must make it his duty to consciously formulate laws, which must be backed by
sanction, to serve as “motives for compliance”. These sanctions must be coercive or alluring so as to
make people obey them.

The Sovereign therefore, is a dynamic entity consisting of a legislative part as well as a judicial one.
Physical presence of the Sovereign is not necessary, laws can be implemented and acted upon by the
Sovereign’s agents, which may be the Police, the Judiciary or the Bureaucracy. Therefore, while the
Sovereign may physically reside in an individual, its functions may be carried out by proper
machinery with a definite hierarchy.

Therefore, the Sovereign is more an idea, an idea which is used as a source of legitimacy for the
entire legal system in a state.

Historical Context-Austin places the notion of sovereignty at the basis of his theory of law. Austin
borrowed from the European experience he had .The sudden break-up of the Roman Empire after
thousands of year of peace full rule made people realize that peace can be maintained only through
a single unified authority with infinite power of command at its disposal.

Moreover Austin wrote his works at a time when England was in need of vast legislative reforms. He
had spent considerable years at German universities, as a lawyer he was trained on Coke Institutes,
Blackstonian commentaries and chaotic other haphazard legal records available, this would have
caused a deep dis-satisfaction with the form of English Law.

He attributed this chaos to loose thinking and did not regard natural law as a useful tool to bring in
sound changes and since his aim was designed to search for a coherent system of law he divorced
law from morals, ethics religion and other social norms. Keeping in mind this factual context in which
he was writing, now we shall discuss his ideas of sovereignty For Austin laws are commands of
sovereign supported by sanction. .The word law presupposes a command that obliges a person to a
course of conduct, being a command it must issue from a determinate person with the threat of
displeasure if not obeyed.

Austin's concept of sovereignty has been discussed in his book ' Province of Jurisprudence
Determined. He uses the concept of sovereignty to define law and the content of jurisprudence. In
his own words:

"The matter of jurisprudence is positive law, law simply and strictly so called or laws set by political
superiors to political inferiors. A law, in the most general acceptance in which the term is employed
may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being
having power over him. Of the laws set by men to men, some are set by political superiors,
sovereigns; by persons exercising supreme government, in independent nations or independent
political societies [this is the subject matter of positive science of law".

According to Austin the superiority which is styled sovereignty and the independent political society
that sovereignty implies is distinguished from other superiority and other societies by the following
characteristics-

1.The bulk of the given society are in a habit of obedience to a determinate and common superior,
that common superior could either be an individual or a certain body aggregate of persons.

2. This individual or body of individuals is not in habit of obedience to a determinate individual,

though laws set by opinion (laws improperly so called according to Austin) may affect the conduct of
this body but there is no determinate person or aggregate of person to whose command this
individual renders habitual obedience.

To define it in words of Austin "If a determinate human superior not in a habit of obedience to a
superior receives habitual obedience from the bulk of a given society that determinate superior is
sovereign that society, independent political society."

Limits of the sovereign-.Since every law in an independent political society is set directly or indirectly
by a sovereign person to a person in a state of subjection to its author, therefore it follows from the
nature of sovereign that the power of a monarch is incapable of legal limitation. If a monarch was
bound by the commands of another superior he cannot be the sovereign. The power of the
sovereign imposing restraints would be free from fetters of positive law.

According to Austin even though sovereign bodies have attempted to oblige themselves or to oblige
their successors to their sovereign powers the position that they are incapable of any limitation will
hold true universally. He clearly states that the laws imposed by sovereign on themselves are merely
"rules of positive morality", they are merely principle that they adopt as guidelines, sovereign is not
constrained to observe it by a legal or political sanction, for if the sovereign was legally bound to
observe it, the sovereign would be in a state of subjection to a higher superior or sovereign.

Rationale behind obeying a sovereign - According to Austin the purpose for which the sovereign
exists is the greatest possible advancement of human happiness, of the people of the community
which the deity has commanded it to rule. From this proper purpose for which sovereign exists,
Austin infers the cause of habitual obedience which he says is bottomed in the principle of utility. If
the enlightened masses thought that sovereign accomplished its proper purpose, this would be their
motive to obey.

If they deemed the government to be faulty a fear that the evil of resistance might surpass the evil
of obedience would be their inducement to summit to the sovereign, for they would not persist in
obedience to a government which they deemed imperfect if they thought a better government
might probably be got by resistance. But Austin takes into account also those who are not
adequately informed or enlightened, he says that such people render obedience as a consequence
of custom, they pay obedience as they are in a habit of obeying, here prejudice (prejudice here
refers to opinion and sentiments which have no foundation in the principle of general utility) and
not utility is the factor that is responsible for obedience.

The habitual obedience arises from a perception by the bulk of the community of the utility of the
government or a preference of any government to anarchy. Thus according to him the general cause
of permanence of government is that the general masses were desirous of escaping to a state of
government from a state of anarchy. Thus they submit freely or voluntarily to a sovereign.

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3. Write a note on international law as law

International laws are a set of rules, agreements and treaties that are binding between countries.
Countries come together to make binding rules that they believe will benefit the citizens. It is an
independent system of law existing outside the legal framework of a particular state. The modern
international law system is a product of only the past four hundred years bearing witness to the
influence of various writers and jurists of sixteen to eighteenth century, who formulated some of its
most fundamental principles.
The existence of international law is the result of increased interstate engagement. It mainly aims to
maintain international peace and security among different states. It also helps in:

 promotion of friendly relations among the member states (members of the International
community, for example, United Nations),
 providing for basic humanitarian rights,
 to solve International problems through international cooperation,
 to refrain the state from using threat or force over the territory of any other state to provide for
right to self-determination to people, and
 to use peaceful methods to settle international disputes are few of its functions.

Subjects of International Law

It is referred to as entities who have a legal personality, with certain rights and duties under the
international legal system.

State is considered to be the primary and original subject of international law. However, it also
regulates the actions of other entities:

Individuals – Common people of any state are also believed to be the subject of international law.

International Organizations – It is an association of states, established by a treaty between two or

more states. International Organizations too have a legal personality and are considered to be the
subject of international law. For example, the United Nations.

Multinational Companies – They own and operate their corporate entities in at least one other
country aside from the place where it was incorporated, therefore it is established in more than one
nation.

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4. Describe law as system of rules

For Hart, ‘law’ is equivalent to ‘legal system’. According to him, legal system (law) is a system of
rules comprising ‘primary rules’ and ‘secondary rules’.

These rules are ‘social’ in two senses:

Firstly, in as much as they regulate the conduct of the members of the society, i.e. they are guides to
human conduct and standards of criticism of social conduct;

Secondly, in as much as they derive from human social practices. Apart from these rules, there are
other social rules also, for example, rules of morality.

The union of these two rules is the essence of his concept of law. Hart describes ‘primary rules of
obligation’ as rules that impose duties or obligations on individuals, such as the rules of the criminal
law or the law of tort. They are binding because of practices of acceptance which people are
required to do or to abstain from certain actions.

On the other hand, secondary rules are those which confer power, public or private, such as the law
that facilitate the making of contracts, wills, trusts, marriages, etc. or which lay down rules governing
the composition of powers of courts, legislatures and other officials bodies. Primary rules are
concerned with actions (that individuals must do or must not do) involving physical movement or
change whereas the secondary rules provide for operations which lead not merely to physical
movement or change, but to the creation or variation of duties or obligations.

Thus, the secondary rules are ancillary to and are concerned with the primary rules themselves. That
is to say, the secondary rules specify the way in which the primary rules may be conclusively
ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.
Secondary rules are chiefly procedural and remedial, and embrace not only the rules governing
sanctions but also go far beyond them. Furthermore, these rules also extend to the rules of judicial
procedure, evidence and the rules governing the procedure for new legislation.

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5. Discuss the questions of law and fact.

Question of law & Question of Fact

The responsibility of court is basically to give answers to all the questions coming inside the court
hall. Now to find the answer there are two options. One is laws and the second one is the facts. The
answers that are from the help of law is called question of law and the answers that are from the
facts are called question of facts.

Question of Law

The question of law is related to interpretation and the judiciary does it. For example, there are
many laws in every country. The judiciary decides which law to apply and which to exclude. This is
question of law. When the judiciary wants to interpret a law then the question of law comes. So,
question of law is related to interpretation.

Questions of law relate to things such as what law applies to a particular case or controversy, how
the law applies in a case, what evidence is and is not both relevant and/or admissible, and what
instructions to give to a jury. In a criminal case involving chemical evidence, like a breath test in a
drunk driving case, or ballistics evidence is a murder case, this evidence can be suppressed by the
judge if an interpretation of existing law suggests that the evidence should not be admitted at trial.
The validity of an arrest, and the admissibly of a confession, the admissibility of evidence, these are
all legal questions. Traditionally, questions of law may only be resolved by a judge.

In jurisprudence, a question of law (also known as a point of law) is a question which must be
answered by applying relevant legal principles, by an interpretation of the law. Such a question is
distinct from a question of fact, which must be answered by reference to facts and evidence, and
inferences arising from those facts.

All questions of fact are capable of proof or disproof, by reference to a certain standard of proof.
While questions of fact are resolved by a trier of fact, which in the common law system is often a
jury, questions of law are always resolved by a judge, or an equivalent.

Question of Law:

According to Salmond, the term question of law is used in three distinct, thought related senses.

I. Questions Authoritatively Answered By Law:

In first sense, it means a question, which the Court is bound to answer in accordance with a rule of
law. All other questions are questions of fact. It excludes the right of the Court to answer the
question as he thinks fit.
Illustration:

Whether the holder of a cheque has been guilty of unreasonable delay in giving notice of dishonor is
a question of law to be determined in accordance with certain fixed principles (sec. 138) laid down in
the Negotiable Instruments Act, 1881.

II. Interpretation of Statutory Provision:In the second sense, it means a question as to what the law
is on a particular point. This arises in cases where a rule of law is ambiguous and requires
determination. Once the provision has been authoritatively interpreted by the judge, it becomes a
judicial precedent and a settled question of law.

III. Questions To Be Answered By Judges:

In the third sense, all question whose answers given by the judges and not the jury are questions of
law.

1. It is answered by fixed rules of law.

2. It is answered by judges.
3. It is called the Point of law.
4. It can’t be converted. It is a constant thing.
5. Example: What is murder, dacoity, theft, etc. All these are explained in IPC.

Question of Fact

A question of fact can only be resolved by a jury or by a judge on a bench trial, meaning a trial
without a jury present. A typical question of law in a drunk driving case is whether the prosecutor
has proved a person is intoxicated because the officer testifies that they failed one or more field
sobriety tests, had slurred speech or bloodshot eyes. In a self-defense case where a murder has
occurred a question of fact might be whether the accused had an honest and reasonable belief that
there was imminent risk of death, serious bodily injury or sexual assault. To make either
determination the jury are said to be “judges of the facts.”

In law, a question of fact (also known as a point of fact) is a question which must be answered by
reference to facts and evidence, and inferences arising from those facts. Such a question is distinct
from a question of law, which must be answered by applying relevant legal principles. The answer to
a question of fact (a "finding of fact") is usually dependent on particular circumstances or factual
situations.

The term question of fact is used also two different senses:

I. Wider sense
II. Narrow sense

I. Wider Sense:

In a Wider or general sense, all questions which are not questions of law are questions of fact.

According to Salmond:

A question of fact means any question

i. Which is not previously determined by a rule of law.

ii. Other than question as to what the law is.
iii. Which is to be answered by the jury and not by the judge.
II. Narrow Sense:

In a narrow sense, question of fact means only those questions which are not subject to judicial
discretion. [Judicial Discretion is the power or right to make official decisions using reason and
judgment to choose from among acceptable alternatives. It is the Power of a court to act or not to
act, as it deems fair under the circumstances, and as provided under the rules of law. It refers to the
inherent powers of the judge to pass a judgment without interference of the rules laid in the statues
or law books.]

1. For question of law, the court actually finds the answer with help of rules available under
different laws and legislations. When the court fails to do so, it seeks help from the higher courts.
Sometimes, after judgment, the victim goes to higher courts for better judgment. But not all the
problems can have answered in the law itself. In that time, the court uses facts or evidence as
help. It is called the question of facts. One important aspect of question of fact is that it is only
bothering about the evidence of proof available. It doesn’t consider on what kinds of opinion is
available. There is only opportunity for the matter of facts.
2. Questions other than particular law is question of fact.
3. It is answered by the parties.
4. It is called Point of fact.
5. It can be converted into a question of law.

Example: In the question of law, we saw what is murder, but here in the question of law, we get to
whether the person is a murderer or not in light of the evidence.

Who decides if a jury will be empaneled to “decide fact questions?

As with any other crime in Michigan, if you are charged with intoxicated driving, then you have an
absolute right to a jury trial. You have this right regardless of whether the intoxication is allegedly
caused by alcohol, marijuana, or some other drug. You have this right because both the Michigan
and United States Constitutions indicate that a person accused of a crime has an absolute right to a
trial by jury.

Because this right is yours and no one else’s, it will be up to you, not your lawyer, to decide if you
want a trial in your case. However, in making this decision you will need to discuss your case with
your lawyer, and then decide if you should plead guilty or whether a trial is in your best interest. As
part of this discussion, it may be helpful for you to understand the role a jury plays in a trial; and that
role is to be the finders of fact. In a jury trial, this principle is set forth in standard Michigan Criminal
Jury instruction 3.1 as follows:

Duties of Judge and Jury

As jurors, you must decide what the facts of this case are. This is your job, and nobody else’s. You
must think about all the evidence and then decide what each piece of evidence means and how
important you think it is. This includes whether you believe what each of the witnesses said. What
you decide about any fact in this case is final.

Difference between Question of Law and Fact in a nutshell:

(i) Relation:

Question of law is purely related with the law.

Question of fact is not related with the law.

(ii)As to Proof:

There is no need to prove question of law.

Question of fact is needed to prove.

(iii)As to conversion:

Question of law cannot be converted into question of fact.

Question of fact may be converted into question of law.

(iv) Duty of Judge:

In a question of law, is the duty of the Court to ascertain the law and decide to case accordingly.

In a question of fact, it is the duty of the Court to weigh the evidence and then come to its
conclusion.

(v) As to Authoritatively Answered:

Every question which has been authoritatively answered by the law is a question of law.

Every question which has not been determined before and authoritatively answered by the law is a
question of fact.

(vi) Example:

In case of filing an appeal, delay explained is question of fact. On the other hand, whether such a fact
is entertainable or not is a question of law.

To illustrate the difference:

Question of fact: Did Mr. and Mrs. Jones leave their 10-year-old child home alone with their baby for
4 days?

Question of law: Does leaving a baby with a 10-year old child for 4 days fit the legal definition of
child neglect?

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6. State the need for administration of justice and explain the secondary functions of court of
law.

Need for administration of justice

A man by nature is a fighting animal and is moved by his own interest and passions. So without a
common power to keep him right on track in the society, it is very difficult for individuals to live
peacefully in a society. A society where the state power is never called into actual exercise, it is very
difficult to attain the civilization in the society.

Administration of justice is important for the following reasons.

1. Necessary for uniformity.

2. Necessary for protection of rights.
3. Necessary for peace and stability.
4. Necessary for integration of society.
5. Necessary to check injustice.
 6. Necessary to educate people.
7. To promote welfare.
8. To promote equity.

Secondary Functions of Courts of Law

1. Petitions of right
2. Declarations of right
3. Administrations
4. Titles of right

Hitherto we have confined our attention to the administration of justice in the narrowest and most
proper sense of the term. In this sense it means, as we have seen, the application by the state of the
sanction of physical force to the rules of justice. It is the forcible defence of rights and suppression of
wrongs. The administration of justice properly so called, therefore, involves in every case two
parties, the plaintiff and the defendant, a right claimed or a wrong complained of by the former as
against the latter, a judgment in favour of the one or the other, and execution of this judgment by
the power of the state if need be.

We have now to notice that the administration of justice in a wider sense includes all the functions
of courts of justice, whether they conform to the foregoing type or not. It is to administer justice in
the strict sense that the tribunals of the state are established, and it is by reference to this essential
purpose that they must be defined. But when once established, they are found to be useful
instruments, by virtue of their constitution, procedure, authority, or special knowledge, for the
fulfilment of other more or less analogous functions. To these secondary and non-essential activities
of the courts, no less than to their primary and essential functions, the term administration of justice
has been extended. They are miscellaneous and indeterminate in character and number, and tend to
increase with the advancing complexity of modern civilisation. They fall chiefly into four groups.

Petitions of right

The courts of law exercise, in the first place, the function of adjudicating upon claims made by
subjects against the state itself. If a subject claims that a debt is due to him from the Crown, or that
the Crown has broken a contract with him, or wrongfully detains his property, he is at liberty to take
proceedings by way of petition of right m a court of law for the determination of his rights in the
matter.

The petition is addressed to the Crown itself, but is referred for consideration to the courts of
justice, and these courts will investigate the claim in due form of law, and pronounce in favour of the
petitioner or of the Crown, just as in an action between two private persons. But this is not the
administration of justice properly so called, for the essential element of coercive force is lacking. The
state is the judge in its own cause, and cannot exercise constraint against itself. Nevertheless in the
wider sense the administration of justice includes the proceedings in a petition of right, no less than
a criminal prosecution or an action for debt or damages against a private individual.

Declarations of right

The second form of judicial action which does not conform to the essential type is that which results,
not in any kind of coercive judgment, but merely in a declaration of right. A litigant may claim the
assistance of a court of law, not because his rights have been violated, but because they are
uncertain. What he desires may be not any remedy against an adversary for the violation of a right,
but an authoritative declaration that the right exists.
Such a declaration may be the ground of subsequent proceedings in which the right, having been
violated, receives enforcement, but in the meantime there is no enforcement nor any claim to it.
Examples of declaratory proceedings are declarations of legitimacy, declarations of nullity of
marriage, advice to trustees or executors as to their legal powers and duties, and the authoritative
interpretation of wills.

Administrations

A third form of secondary judicial action includes all those cases in which courts of justice undertake
the management and distribution of property. Examples are the administration of a trust, the
liquidation of a company by the court, and the realisation and distribution of an insolvent estate.

Titles of right

The fourth and last form includes all those cases in which judicial decrees are employed as the
means of creating, transferring, or extinguishing rights. Instances are a decree of divorce or judicial
separation, an adjudication of bankruptcy, an order of discharge in bankruptcy, a decree of
foreclosure against a mortgagor, an order appointing or removing trustees, a grant of letters of
administration, and vesting or charging orders. In all these cases the judgment or decree operates,
not as the remedy of a wrong, but as the title of a right.

These secondary forms of judicial action are to be classed under the head of the civil administration
of justice. Here, as in its other uses, the term civil is merely residuary; civil justice is all that is not
criminal.

We have defined the law as consisting of the rules observed in the administration of justice. We
have now seen that the latter term is used in a double sense, and the question therefore arises
whether it is the strict or the wide sense that is to be adopted in our definition of the law. There can
be no doubt, however, that logic admits, and convenience requires, the adoption of the wider
application.

We must recognise as law the sum total of the rules that are applied by courts of justice in the
exercise of any of their functions, whether these are primary and essential or secondary and
accidental. The principles in accordance with which the courts determine a petition of right, decree a
divorce, or grant letters of administration, are as truly legal principles as those which govern an
action of debt or a suit for specific performance.

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7. Write a note on reformative theory.

Reformative Theory of punishment

The idea of the Reformative Theory is hypothesis. As per this hypothesis, the object of discipline
ought to be the change of the crook, through the strategy for individualization. It depends on the
humanistic rule that regardless of whether a wrongdoer perpetrates a wrongdoing, he doesn’t stop
to be a person. In this way, an exertion ought to be made to change him/her during the time of
his/her detainment. For example, he may have executed bad behaviour under conditions which may
never happen again. Hence an effort should be made to transform him during the hour of his
confinement. The object of order should be to accomplish the moral difference in the liable party.
He ought to be told and perform some craftsmanship or industry during the hour of his confinement
with the objective that he may have the alternative to start his life again after his conveyance from
jail.
The Main Purpose Reformative Theory:

The reason for this hypothesis of discipline is to make the criminal languish over his bad behaviour.
Here the motivation behind the discipline is profoundly customized and rotates around the mental
outlet of the person in question or his family. The primary reason might be accomplished to parole
and probation, which have been acknowledged as current procedures of improving the guilty parties
all around the globe. Consequently, the backers of this hypothesis legitimize imprisonment not
exclusively to separate hoodlums and kill them from society. Not many of the advanced reformative
procedures of discipline are essentially concocted for the treatment of guilty parties as per their
mental attributes, for example, probation, parole, uncertain sentence, exhortation and pardon. The
reformative techniques have demonstrated to be valuable in the event of adolescent misconduct,
first wrongdoers and ladies. Sex cases additionally appear to react well to the reformative strategy
for discipline. All the more as of late, the reformative hypothesis is in effect widely utilized as a
technique for treatment of intellectually denied wrongdoers.

Criticism:

1. Reformative theory anticipates better framework and offices in jail, legitimate co-appointment
between various control and diligent exertion on their part to shape criminals. It requires gigantic
ventures which poor nation can’t bear the cost of.
2. A great many guiltless individuals who have high respects for law are finding hard to get
fundamental courtesies hypothesizes moral avocation for giving better offices inside jail.
3. Also, the soundness of the hypothesis is more towards motivators for the commission of
wrongdoing instead of counteraction.
4. Transformation can work out on those individuals who can be improved, there are individuals
who can’t be changed like bad-to-the-bone lawbreaker, profoundly instructed and proficient
hoodlums.
5. This theory disregards possible wrongdoers and people who have submitted wrongdoing
however not inside the arms of law. Further, it ignores the cases of survivors of violations.
6. Degenerate social ecological is liable for wrongdoing yet not person duty, is the way of thinking of
reformative which is difficult to process. In any case, it is out of line to excuse the honourable
idea of reconstruction as a complete disappointment. All know about the occasions where
untalented, uninformed and evidently hopeless lawbreakers have created aptitudes in jail, which
have changed them into profoundly valuable people.

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8. Write a note on purposes of punishment.

Punishments are imposed on the wrong doers with the object to deter them to repeat the same
wrong doing and reform them into law- abiding citizens. A Punishment is a consequence of an
offense. Punishment generally is provided in Criminal Law. It is a social control.

According to Salmond’s: Crime is an act deemed by law to be harmful for the society as a whole
though its immediate victim may be an individual.

Specific and General Deterrence

Deterrence prevents future crime by frightening the defendant or the public. The two types of
deterrence are specific and general deterrence. Specific deterrence applies to an individual
defendant. When the government punishes an individual defendant, he or she is theoretically less
likely to commit another crime because of fear of another similar or worse punishment. General
deterrence applies to the public at large. When the public learns of an individual defendant’s
punishment, the public is theoretically less likely to commit a crime because of fear of the
punishment the defendant experienced. When the public learns, for example, that an individual
defendant was severely punished by a sentence of life in prison or the death penalty, this knowledge
can inspire a deep fear of criminal prosecution.

1. Incapacitation
2. Rehabilitation
3. Retribution
4. Restitution

Incapacitation

Incapacitation prevents future crime by removing the defendant from society. Examples of
incapacitation are incarceration, house arrest, or execution pursuant to the death penalty.

Rehabilitation

Rehabilitation prevents future crime by altering a defendant’s behavior. Examples of rehabilitation

include educational and vocational programs, treatment center placement, and counseling. The
court can combine rehabilitation with incarceration or with probation or parole. In some states, for
example, nonviolent drug offenders must participate in rehabilitation in combination with
probation, rather than submitting to incarceration (Ariz. Rev. Stat., 2010). This lightens the load of
jails and prisons while lowering recidivism, which means reoffending.

Retribution

Retribution prevents future crime by removing the desire for personal avengement (in the form of
assault, battery, and criminal homicide, for example) against the defendant. When victims or society
discover that the defendant has been adequately punished for a crime, they achieve a certain
satisfaction that our criminal procedure is working effectively, which enhances faith in law
enforcement and our government.

Restitution

Restitution prevents future crime by punishing the defendant financially. Restitution is when the
court orders the criminal defendant to pay the victim for any harm and resembles a civil litigation
damages award. Restitution can be for physical injuries, loss of property or money, and rarely,
emotional distress. It can also be a fine that covers some of the costs of the criminal prosecution and
punishment.

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9. Discuss the nature of legislation as a source of law.

The term “legislation” refers to the act of making laws. “Legis” means law, and “Latum” means
making, hence it implies law-making. Legislation is the way of making laws in which the competent
authority is responsible for drafting and enacting laws in a specific state. It is also stated to be a
rigorous concept of law-making because there is only one body charged with the task of law-making,
and there is little space for any changes because the laws are codified and airtight, leaving a very
small range of adjustment.

In a broader sense, it refers to all sources of law, as well as every act that has the impact of adding to
or changing the law. It is possible to say that a judge has exercised legislative power and that the
judicial decision is also legislation when he establishes a new principle in a judicial decision. In all
countries, it creates new laws, adjusts existing laws, and repeals existing laws.

The main reason behind the legislation is regarded as an important source of law i.e., the legal rule
enshrined by the legislature was recognized by the State as law and legislation have the authority
and force over the State. That’s the reason, Dias said that deliberate law-making by an authoritative
power, i.e., the State is called the Legislation provided that authority is duly recognized as the
Supreme power by the Courts.

According to him legislation as a source of law can be used in three different senses, such as:

1st Sense or Strict sense: Legislation is the source from where the rules of law declared by
competent authority are framed;

2nd Sense or Widest sense: Legislation includes all methods of law-making either be direct or
indirect.

3rd Sense: legislation includes every expression of the will of the legislature whether making law or
not.

Definitions

According to Salmond: “Legislation is that source of law which comprises in the assertion of lawful
standards by a competent specialist.”

According To Austin: “Legislation is the command of the sovereign or the superior authority which
must be followed by the common masses backed by sanctions”.

According to Gray: “Legislation implies the formal expression of the administrative organs of the
general public.”

Types of Legislation

Legislation can have numerous reasons, for instance, to direct, to approve, to endorse, to give, to
authorise, to allow, to proclaim, to confine and to annul. Therefore in enacting any legislation and
the rule of law, the welfare of the citizens must be kept in mind and therefore, it is must be adopted
in the best interests of the citizens.

Some different types of legislation are as follows.

Supreme Legislation

The Supreme legislation is the legislation adopted by the sovereign intensity of the state. In this
manner, some other authorities which are the organ of the state cannot control or check it. It is
considered incomparable as well as lawfully powerful. An established piece of this rule can be found
in Dicey’s book, ‘The Law of the Constitution‘.

There is no legitimate restriction on its capacity. Indian parliament is likewise preeminent. Even
though there are different constitutional amendments upon its capacity, it isn’t subject to any other
administrative authorities inside the state. Therefore the sovereign jurisdiction of the state can’t be
revoked, cancelled or constrained by some other authoritative organ of the state.

Subordinate Legislation
Subordinate legislation will be legislation by some other authority than the Supreme specialist in the
state. It is made under the powers designated by the Supreme authority. Such legislation owes its
reality, legitimacy, and continuation to the Supreme expert. It can be cancelled and abrogated
anytime by the power of the sovereign authority and therefore, it must offer an approach to
sovereign legislation. Subordinate legislation is liable to parliamentary control. Five unique types of
subordinate legislation can be distinguished.

These are as follows.

1. Colonial Legislation
2. Executive Legislation
3. Judicial Legislation
4. Municipal Legislation
5. Autonomous Legislation
6. Delegated Legislation

Colonial Legislation

The nations which are not autonomous, and are under the control of some other state have no
Supreme capacity to make law. Such countries can be in different classes such as colonies, domains,
secured or trust regions and so forth. The laws made by them are subject to the Supreme legislation
of the state under whose control they are. Therefore it is subordinate legislation.

England has had numerous colonies and territories. The laws made by them for the self-government
are subject to modification, nullification or supersession by the legislation of the British Parliament.
As the colonies are free, accomplished freedom and practically all the British domains have an
unlimited power for legislation, hence sooner rather than later, we might have this class of
subordinate legislation no more in existence.

Executive Legislation

At the point when legislative powers are delegated by the designated official to an executive, it is
called executive legislation. Even though the significant capacity of the official is to execute the laws
and carry on the organisation, he/she is continuously dependent on some subordinate enactment
powers. Today, for all intents and purposes of each law sanctioned by the lawmaking body contains
assignment statements giving law-making powers by the official to the executive in order to enhance
the statutory arrangements.

Judicial Legislation

Powers delegated to the judicial system to make and implement their own laws to maintain
transparency in the judicial system of the country. This will also ensure that there is no involvement
of any other organ of the government in the governance of the judicial system of the state.

Municipal Legislation

Municipal bodies are offered powers to make bye-laws concerning their neighbourhood matters.
Bye-law made by a neighbourhood body works inside its individual area. In India, such municipal
bodies are Municipal corporations, Municipal Boards, Zila Parishads, and so on. There is a move for
allowing extensive powers to Panchayats. Along these lines, there is a plausibility of extension of this
sort of subordinate enactment in our nation. Balwant Rai committee appointed by the Parliament
gave some parliamentary reforms needed in the Panchayat system of the country. The
recommendations were later on incorporated in the Constitution by 73rd Amendment.
Autonomous Legislation

At the point when the Supreme authority gives powers upon a gathering of people to administer on
the issues depended to them as a gathering, the law made by the last is known as the autonomous
law and the body is known as a self-ruling body. A railway is an independent body. It makes bye-laws
for the guideline of its organisation, and so on. A college is likewise a self-governing body. Even some
universities in India have been granted the status of autonomous bodies.

Delegated Legislation

Delegated (subordinate or subsidiary) Legislation alludes to those laws made by people or bodies to
whom parliament has delegated law-making powers. Where Acts are made by Parliament, a
Principal Act may cause arrangement for Subsidiary Legislation to be made and will to indicate who
can make laws as such under that Act. Delegated Legislation can just exist in connection to an
empowering or parent Act.

Delegated Legislation contains the numerous regulatory subtleties essential to guarantee that the
arrangements of the Act will work effectively. It might be directed by Government Departments,
Local Councils or Courts. Guidelines and Statutory Rules are the most widely recognised types of
Delegated Legislation. They are made by the Executive or a Minister which apply to the overall
public. By-laws, and once in a while Ordinances are made by a Local Government Authority which
also applies to the general population who live around there. Principle and Parent Act regularly
depict methodology to be followed in Courts if there is any flaw in a delegated law.

Legislation as a Source of law- Historical and Analytical School

1. Thoughts of Analytical Positivist School

Jurists of this School lay stress on legislation as a source of law. They believe that the only way to
make law is through legislation. They are vehemently opposed to judges having the power to enact
laws. They also claim that customs are just sources of law, not the law itself.

2. Thoughts of Historical School

This school’s jurists were indifferent about legislation. They believe that making laws through
legislative action is impossible. Legislators’ sole purpose is to collect customs and offer them a better
form.

Advantages and Disadvantages of Legislation as Source of Law

Some of the Advantages of Legislation as Source of Law are:

1. Abrogative Power – It has the authority to amend or repeal existing laws that are not under the
control of several sources. Also, Legislation has both a constitutive and an abrogative function.

2. Effectiveness – Legislation allows for a more efficient division of labor by separating the two
functions of making and enforcing the law. As a result, efficiency improves.

3. Declaration – It establishes that legal concepts will be known before they are enacted. Justice
requires that laws be known before they are implemented and enforced by the courts, yet the ease
legislation operates retrospectively, applying to facts that occurred before the law was enacted. In
its application, statute law is rarely retrospective.
Then legislation passes the test of a court of justice’s interpretation of the statute. If any changes to
the adopted law are suggested, they are disclosed and public input is sought.

4. Reliance on Unintentional Legislation – Because the legislation is self-contained and emerges as

the authoritative source of law, it does not have to withstand scrutiny until the initial case of
legislation.

5. Incomparable in Form – Legislation is superior in form because it is brief, clear, easily accessible,
and understandable, whereas valuable case law must be extracted from a mountain of dross. Before
the ratio is decided or case law can be discovered, one must read the entire judgment. As Salmond
puts it, ease law is “gold in the mine,” a few grams of precious metal for every tonne of useless
material, whereas statute law is “coin of the realm,” ready for immediate use.

6. Provision for future cases – Legislation can make rules for cases that have not yet occurred. As
soon as a defect is brought to the legislature’s attention, it can fill a vacancy or settle a dispute in the
legal system.

Some of the Disadvantages of Legislation as a Source of Law:

There is no source of law that is perfect and completely complete in its form and sense; every source
of law has some flaws and gaps, which are as follows in the case of legislation.

1. Rigid and inflexible – The law in the legislation is rigid and is inflexible and un-adaptive. Therefore,
in extreme cases, injustice occurred with the victims.

2. In light of Hypothesis – Legislation, for the most part, is based on speculative certainty, taking into
account the current environment and surroundings, in which established law is frequently observed
to be blemished in its application to the perplexing issues that arise in real life through piecemeal
solutions arising from commonsense exigencies and convenience.

3. Lack of clarity – It is commonly stated that statute laws are frequently drafted in ambiguous
language, with numerous loopholes. It opens the door to a plethora of possible interpretations.
There are numerous errors and omissions made while connecting the law, which makes little sense
to the average person.

4. Lack of judicial discretion – The judge must implement the law in its current form and adhere to it.
The law is applied as written. Other aspects such as social, economic, and other circumstances must
also be considered by the judge while resolving the case, but this aspect was not found in written
form anywhere, due to which it may be found difficult for the judges to pronounce the judgment as
the law written and ignoring the merit of the case and other aspects of the case.

5. Arises conflict – Individual rights are abridged by some legislation, which is subjected to Judicial
Review. For example, Citizenship Amendment Act, 2020, Farms Act, 2020 was reviewed by the
Judiciary.

The abridged form of legislation leads to a constitutional amendment and it may arisea
disagreement between the legislative and the judiciary.

Conclusion

In conclusion, we can say that legislation is a very important source of law in the modern era. In
comparison to other legal sources, it appears to be more authoritative. To facilitate understanding,
legislation has been further classified into several types. In terms of delegated legislation, it has
become a requirement for modern society.
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10. What is ratio decidendi? State how it is determined?

Ratio decidendi literally means ‘reason for deciding’. In the judicial context, it is the reason which is
cited for arriving at a decision in a case. Such reason is not the law that is getting attracted in the
contemporary case but is the necessary notion which helps the court arrive at a particular decision.
It is this part of the precedent which has to be followed by the courts in subsequent decisions but
not the general observations of the court. There is a dispute of law involved with respect to the
reasoning given by the judgment and not a dispute of fact. As the facts cannot be similar in other
cases, the observations pertinent to the facts made by the judge cannot be binding in the other
cases though the similar laws are attracted. But the reasons for arriving at a decision are binding. In
case there are multiple reasons for deciding in a manner, all those reasons will be binding in the
subsequent cases.

In the case of B. Shama Rao v. UT of Pondicherry, it was observed that any of the decisions of a court
which is binding as a precedent is not because of the end result or the order of that decision but
based on the reasons and principles referred to in such a decision. The ratio in deciding a case
would evolve from the interpretation of a statute, principles of natural justice, and the common law
principles. In the case of multiple judges deciding a case, the reasons cited by the majority of them
will have an effect of precedent on further cases. But if the judges agree with the judgment or order
but not with the ratio for arriving at such a decision, such judgment or order does not carry an
obligation to be followed as a precedent. Though it is difficult to pick a ratio from a judgment, the
primary duty of judges while arriving at a decision is to determine a ratio, and the court’s duty while
citing a case as precedent is to identify what is the ratio in such a case. Ratio decidendi can be
determined by prioritizing the material facts and leaving the unimportant facts behind. Another way
to identify ratio is to narrow down the precedents which could be applicable in determining the
case. Even in this method, due importance must be given to the majority opinions and the crux of
the cases. Rather than these general techniques, certain specific tests are laid down by the jurists
such as Halsbury, Wambaugh, Goodhart, and Julius Stone.

These tests are used to this day to correctly determine the ratio of a case.

Descriptive ratio

The descriptive ratio is the rationale or the reason which helped the court to arrive at a decision. It is
the original ratio and is used as an aid in future cases

Prescriptive Ratio

On the other hand, the prescriptive ratio is the way in which the descriptive ratio is used as a
precedent in a future case. No case is totally similar to the facts or the law. Due to this reason, there
arises a problem in the application of the principle as it is laid down in a future case. Hence, the
descriptive ratio is slightly altered by using the level of generality so as to apply it as a prescriptive
ratio.

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11. Write a note on interpretation of enacted law?

Interpretation meaning
The term has been derived from the Latin term ‘interpretari’, which means to explain, expound,
understand, or to translate. Interpretation is the process of explaining, expounding and translating
any text or anything in written form. This basically involves an act of discovering the true meaning of
the language which has been used in the statute. Various sources used are only limited to explore
the written text and clarify what exactly has been indicated by the words used in the written text or
the statutes.

Interpretation of statutes is the correct understanding of the law. This process is commonly adopted
by the courts for determining the exact intention of the legislature. Because the objective of the
court is not only merely to read the law but is also to apply it in a meaningful manner to suit from
case to case. It is also used for ascertaining the actual connotation of any Act or document with the
actual intention of the legislature.

According to Salmond, “Interpretation” is the process by which the court seeks to ascertain the
meaning of the legislature through the medium of authoritative forms in which it is expressed.

 In law, interpretation refers to exposing the true sense of the provisions of the statutes and to
understand the exact meaning of the words used in any text.
 Interpretation refers to the linguistic meaning of the legal text.
 In the case where the simple meaning of the text is to be adopted then the concept of
interpretation is being referred to.

Need for interpretation

1. The ambiguity of the words used in the statute: Sometimes there will be words that have more
than one meaning. And it may not be clear which meaning has to be used. There could be
multiple interpretations made out of it.
2. Change in the environment: We all know that society changes from time to time and there may
be new developments happening in a society that is not taken into consideration, this lacks the
predictability of the future event.
3. Complexities of the statutes: usually statutes are complex and huge, it contains complicated
words, jargon and some technical terms which are not easy to understand and this complexity
may lead to confusion.
4. When legislation doesn’t cover a specific area: Every time when legislations are out it doesn’t
cover all the area it leaves some grey areas and interpretation helps in bridging the gaps
between.
5. Drafting error: The draft may be made without sufficient knowledge of the subject. It may also
happen due to the lack of necessary words and correct grammar. This makes the draft unclear
and creates ambiguity in the legislature.
6. Incomplete rules: There are few implied rules and regulations and some implied powers and
privileges which are not mentioned in the statute and when these are not defined properly in
the statute this leads to ambiguity.

Rules of interpretation of statutes

Strict Interpretation

Strict interpretation means each word in the statute should be interpreted by the letter and not with
respect to the spirit behind the statute. A judge has to apply the text only as it is written in the
statute when there is clear meaning of the text there will be no scope for any further investigation
regarding the same. Here in strict interpretation, the courts will use the literal rule of interpretation.
Liberal Interpretation

Liberal or beneficial interpretation means the interpretation of the statute should be made liberally
in order to get a wider and enhanced meaning to it. Here judges have all the powers and authority to
interpret the laws according to the case requirements and in this rule, there will be no compulsion to
follow only the letter of the law, they can go beyond the meaning of the text and interpret. The
courts will use the golden rule of interpretation or the Mischief rule of interpretation.

Literal Rule

The literal rule basically looks into what the law says, not what the law means. It considers the
original meaning of the word. Here judges cannot come up with the words and interpret according
to the case basis. When the language used is simple and the words have only one meaning to it at
that time judges will use this literal rule of interpretation.

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12. Explain the kinds of legal rights.

The standard of permitted action within a certain sphere are called rights. In other words, a right is
any action of a person which law permits. Legal rights is different from a moral or natural right in the
sense that it is recognized & protected by law, whereas the latter may/may not be recognized &
protected by law. We shall now, discuss the types of rights in detail.

Kinds of Legal Rights

In simple words, the court of law can enforce legal rights against persons and also against the
government. A legal right is an interest accepted and protected by law. Also, any debasement of any
legal right is punishable by law. Legal rights affect every citizen. Legal rights are equally available to
all the citizens without the discrimination of caste, creed & sex.

1. Perfect & Imperfect Rights

2. Positive & Negative Rights
3. Real & Personal Rights
4. Proprietary & Personal Rights
5. Public & Private Rights
6. Inheritable & Uninheritable Rights
7. Right in repropria & Right in realiena

1. Perfect & Imperfect Rights

The perfect right has the following features:

1. It is recognized by law.
2. It is enforceable by law. So, in the case of breach of this right, a person may go to court for
enforcing this right.

Thus, all fundamental rights, viz. Right to equality, right to religion, etc. are perfect rights as these
are enforceable by law.

The imperfect right has the following features:

1. It is recognized by law.
 2. It is not enforceable by law. This means that a person cannot go to court for the breach of
imperfect right.

All the time-bound claims or debts come under the category of imperfect rights.

2. Positive & Negative Rights

The basis of distinguishing right as positive or negative is the nature of correlative duty it carries with
it. Under Positive rights, the person has to perform some positive duty to fulfill this right.

Negative rights prevent a person to do some act, that is it corresponds to a negative duty. Example:
Right to life under article 21 of the Indian constitution is a negative right because it prevents a
person to kill another person.

3. Real & Personal Rights

Real right or right in- rem corresponds to the duty imposed upon the people in general. It is available
against the whole world in general. Example: Tort or crime is a real right.

Personal right or right in-persona is available against a particular person & it corresponds to duty the
duty imposed upon a particular person. Therefore, the personal right generally arises out of
contractual obligation. Example: breach of contract is a personal right.

4. Proprietary & Personal Rights

A proprietary right is available with respect to a property that is it relates to the owner & his assets.
The assets must have some monetary value. Example: the right to ownership of property, Right to
patent, Right to goodwill, etc.

A personal right is related to a person’s life i.e. his reputation or standing in the society. These rights
promote a person’s well-being in society & have no economic value. Example: Right to life.

5. Public & Private Rights

The rights which are vested in a person by state or govt. or constitution is called public rights.
Example: Right to vote, Right to use public parks, etc.

Private rights are connected with private individuals or persons. Example: A contract entered into by
two people gives rise to private rights to them.

6. Inheritable & Uninheritable Rights

Inheritable rights can be passed from one generation to another, i.e. this right survives even after
the death of its owner. Example: A son is a legal heir to the property of his father after his death.

Uninheritable rights die with the death of its owner. Example: All personal rights are uninheritable
rights.

7. Right in repropria & Right in realiena

A person possesses Right in repropria with respect to his own property. He can use, dispose of,
destroy, modify or exclude others from his property. Thus, this right gives a person, absolute
ownership over the property.

Right in realiena is the right in the property of another person. Example: Right of way over the
neighbor’s field. So, it is not an absolute right.
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13. What is legal right? Describe the Hohfields concept of right in wider sense.

A legal right is an “interest which is protected and recognized by the rule of law. It is an interest
which has its duty and disregard of which is wrong”.

According to Gray: A legal right is “that power which the man has, to make a person or persons to do
or restrains from doing a certain act or acts so far as the power arises from society imposing a legal
duty upon the person or persons. He states that the “right is not the interest itself, it is the means to
enjoy the interest secured”.

In the case of State of Rajasthan vs Union of India, the Supreme Court stated that “Legal rights in the
strict sense are correlatives of legal duties and legal rights are defined as the interests which the law
protects by imposing duties on other persons. But the legal right in the strict sense means right is the
immunity from the legal power of another. Immunity is no subjection at all”.

Hohfields Concept of Right

According to Hohfeld, the term “rights” should be limited to only that which exists in relation to
duty. Rights and responsibilities are intertwined ideas, and when one is violated, the other is always
violated as well.

Wesley Newcomb Hohfeld was born in California in 1879 and died in 1918. He graduated from the
University of California and then became the editor of the Harvard Law Review while at Harvard Law
School, where he graduated in 1904. Hohfeld taught at Stanford Law School for a short time before
moving to Yale Law School, where he remained until he died in 1918.

Hohfeld’s analysis continues to be a significant contribution to our current understanding of the

nature of rights. A chair at Yale University is named after Hohfeld to honour his enduring
importance. Hohfeld’s theories are still relevant today, even after a century has passed since his
death and traces of his theories are also evident in the Indian legal justice system.

Hohfeld’s analysis

A ‘right’, according to Hohfeld, is a legal interest that imposes a correlative duty. “If X has a right
against Y to keep off the latter’s land, the correlative (and equivalent) is that Y has an obligation
toward X to stay off the place”, Hohfeld says. In the same way that a ‘privilege’ imposes a
comparable and correlative no-right, power imposes a correlative liability and immunity, resulting in
handicap. The contrast between a right and a privilege is particularly important in this regard.

He points out that the term ‘right’ was frequently used to refer to a variety of other legal interests
such as powers, privileges, and immunities. This issue was so common that Hohfeld was able to
obtain enough court support in his article to acknowledge it. As a solution, Hohfeld proposes
separating rights, privileges, powers, and immunities, all of which he considers to be separate legal
interests. Surprisingly, he tries to make this distinction based on the legal duties that these interests
place on another organisation. Hohfeld’s definition methodology is based on the usage of
correlatives and opposites.

Because the most fundamental legal relationships are sui generis, attempts at formal definition are
inevitably unsatisfying, if not completely futile. As a result, the most promising course of action
appears to be to display all of the numerous relations in a scheme of ‘opposites’ and ‘correlatives’,
and then to demonstrate their unique breadth and application in real examples.
Hofeld’s analysis is majorly based on Salmond’s earlier system. According to Salmond, there are
three categories of rights:

Rights in the strict sense, which are defined as interests protected by the law by imposing its duties
with respect to the rights upon other persons,

Liberties are defined as “interests of unrestrained activity”,

Powers “when the law actively assists me in making my will effective”.

Jural relations

Hohfeld’s dissatisfaction with the premise that all legal relations may be reduced to rights and duties
led to the eight fundamental legal concepts. This was identified as the most significant impediment
to understanding and successful resolution of legal challenges. His notion of jural relations can be
explained through the below-mentioned table:

The vertical arrows connect jural correlatives, or ‘two legal positions that entail each other,’ whereas
the diagonal arrows connect jural opposites, or ‘two legal positions that deny each other.’

Rights and duties

Hohfeld did not devote much attention to the relationship between rights and duties. According to
him, the term ‘rights’ is mistakenly applied to something that may be a privilege, a power, or
immunity in some cases, but is not a right in the strictest sense. The correlative (and equivalent)
‘obligation’ provides a method for limiting the word ‘right’ to its specific and most appropriate
meaning. Legal rights are always accompanied by legal obligations. This pair of phrases convey the
same legal relationship but from two different perspectives. Hohfeld used the example of X having a
right against Y to keep off of X’s land. The invariable corollary of this is that Y has a duty to X to keep
off X’s territory. According to Hohfeld, the word ‘claim’ is the most accurate and adequate synonym
for the word ‘right’ in terms of meaning. If necessary, state coercion is used to enforce a valid right
or claim.

Being granted or having a legal right (or a claim, according to Hohfeld) entails legal protection from
other people’s interference or refusal to provide aid or recompense in connection with a certain
action or state of things. A person who is supposed to refrain from interfering or give aid or
remuneration has a responsibility to do so. A legal position deriving from the imposition of
responsibility on someone else is known as a right or claim.

Privileges and no-rights

The term liberty is preferred by the majority of future jurists over the phrase privilege. These two
terms occupy the same structural position in Hohfeld’s theory, notwithstanding Hohfeld’s
preference for the term privilege. Privileges are permissions to act in a given way without being held
liable for the harm caused to others who, at the same time, are unable to ask the authorities to
intervene. “To the degree that the defendants have privileges, the plaintiffs have no rights”, Hohfeld
said. There can’t be a conflict between rights (claims) and privilege. The correlation of this legal
relationship demonstrates that the person against whom liberty is asserted has no right to the
conduct to which liberty pertains. This does not, however, rule out the possibility of him interfering
with the action.

Hohfeld agreed that under legal systems, liberties that are not accompanied by responsibilities
imposed on others to avoid interference with legal action exist, and that there are often strong
political reasons for doing so. When someone is granted legal liberty, he relieves legislators of the
burden of imposing a duty on others. When deciding whether or not to apply the above
requirements in a specific circumstance, a rational legislator may take advantage of political
concerns.

For example, the fundamental rights mentioned in Part III of the Indian Constitution, are in fact the
‘privileges’ mentioned by Hohfeld as they provide that the State has a correlative ‘no-right’ to
interfere in the exercise of these freedoms.

Powers and liabilities

The first two pairs of legal positions (right/duty and liberty/no-right) are first-order relations, while
the following two pairs (power/liability and immunity/disability) are second-order relations. Some
first-order relations are directly applied to human behaviour and social interactions without the use
of any second-order relations. All second-order relations, on the other hand, are applied directly to
human entitlements and only indirectly to human behaviour and social interactions.

According to Hohfeld, a jural relationship can be modified in two ways: by facts that are not under
the volitional control of one or more people, or by facts that are under the volitional control of
human beings. He defined powers in terms of the second group of circumstances, in which a person
with the dominant volitional control has the legal authority to change jural relations in a specific
way. This relationship is held between two people with respect to certain actions or conditions of
events, similar to other jural interactions. Hohfeld gave several instances of legal powers, including
property-related powers (property abandonment and ability to transfer property), contractual
obligation-creating capabilities, and the establishment of an agency relationship. Susceptibility to
someone exercising power is defined as liability. Deference to a shift in a person’s entitlement isn’t
always unpleasant. A promisee, like an inheritor, may profit from an entitlement conferred by a
promisor.

When it comes to liability, Hohfeld brought up the issue of those who work in ‘public callings’ like
innkeepers. Rather than the common perception that innkeepers have a duty to all other parties,
Hohfeld stressed that an innkeeper has liability and that travellers have a correlative authority. As a
result, travellers have the legal authority to bind an innkeeper to accept them as guests by
submitting an acceptable tender. If jurists conflated Hohfeldian powers with rights, there would be a
lot of uproars. Simmonds gives an example of how power can be linked with a duty not to exercise it,
such as when a nonowner has the authority to transfer title to a bona fide purchaser but will commit
an infraction while doing so. If we use the word ‘right’ to define the power, we must declare that the
non-owner has the right to sell the property.
Immunity and disability

Immunity refers to the state of not being able to have one’s rights altered by another. A lack of
power to change legal entitlements is defined as a disability. The basic difference between powers
and immunities is the same as the general contrast between rights and privileges. A right is an
affirmative claim against someone else, whereas a privilege is someone’s exemption from someone
else’s right claim. Similarly, power is someone’s affirmative control over a specific jural relation
about another, whereas immunity is someone’s independence from another’s legal power or control
over some jural relations.

For example, if A enjoys immunity against B, B is limited in his or her ability to exercise powers
relating to the immunity’s covered entitlements. Immunity rights are a common occurrence in
constitutional texts. As a result, if the people are guaranteed freedom of speech by the Constitution,
the legislature cannot wield any power in this regard. While the legislature is disabled, the people
have immunity rights to freedom of speech.

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14. Discuss the concept of personality with special reference to the unborn person.

According to Salmond – “A person is any being whom the law regards as capable of rights and bound
by legal duties.” The term ‘person’ is further classified into two terms i.e., natural person and
legal/artificial person.

We live in a world where we hear the words ‘rights’ and ‘duties’ on a daily basis. Rights are
understood as the means that provide certain kinds of privileges to a person and duties are
understood as the obligations that a person needs to fulfill. Prima facie, rights and duties look the
same for everyone but when we take a closer look, we notice that rights and duties differ at various
levels based on the entities they are dealing with.

For example, when someone breaches your rights you can approach the court, similarly, you can
also make someone do their lawful duty in case of default. This is all fine in the case of human beings
but what stand do entities such as an unborn child and environmental resources have in the eyes of
law? Can they be given rights, status, and ownership similar to that of a person? Let us know about
the legal status of a person, an unborn child, and the environmental resources through this article.

The legal status of an unborn child

As already mentioned, an individual is considered a natural person from the time of his birth till his
death. Such a natural person is capable of bearing rights and duties, thus he has a legal personality.
Generally, a natural person before birth and after death does not have a legal personality. So, for a
natural person to have rights and duties, he must be alive. However, the law faces an issue when it
comes to the case of an unborn child. The subjects such as medicine and theology establish that an
unborn child is a living entity.

As per legal fiction, a child in its mother’s womb is considered as already born. When he is born
alive, he will attain legal status. In usual terms, the law only gives attention to living natural persons
but in the case of an infant ventre sa mere (a child in its mother’s womb), the law makes an
exception. A child in its mother’s womb is capable of acquiring certain rights and inheriting property,
but it all depends on whether the child is born alive or not. An unborn child is considered a person
during partition. Damages can also be claimed by such an unborn child for the injury sustained while
in its mother’s womb.

The legal understanding of the concept of person' or personality' revolves around possession of
rights and capacity to discharge legal duties. Hence, natural persons, that is, human beings are the
prime claimants of legal personality. Legal personality of natural persons begins at birth and
extinguishes with death with the result that pre-birth, post death stages are devoid of any legal
persona.

Understanding absence of personality in the pre-birth stage poses problems as the unborn being
understood as incapable of exercising any legal rights and not being duty bound towards anybody,
gets a raw deal when it comes to tortious acts committed towards it. There are crimes committed
against them that are not recognised as such and hence make punishment impossible.

For law, the problem is complicated by other disciplines like theology and medicine maintaining the
unborn to be living' entity. A natural person must be a living human being, i.e., must not be a
monster and must be born alive to be ranked as a person in law. The exception to this rule is that of
an infant en ventresa mere (child in womb), who is supposed to be born for many purposes. A child
in its mother's womb can acquire certain rights and inherit properly, but the rights are contingent on
his being born alive. He is counted as a person for purposes of partition. Such a child can claim
damages for injury sustained while in its mother's womb.

A pregnant woman condemned to death is respite as of right till the delivery of the child. A child not
yet conceived cannot be deemed to be a person, although provision may be made for such beings
contingently coming into existence by vesting property in trustees for them. The creation of
proprietary rights in favour of unborn persons is governed by the rule against perpetuity.

That rule provides that you cannot postpone vesting of an estate beyond a longer period than the
lifetime of the transferee or transferees existing at the date of the transfer and the minority of the
ultimate unborn beneficiary. The contingent rights of unborn persons become vested on birth or at
the end of such period not exceeding that prescribed by the rule against perpetuity, as may be fixed
by the person granting the rights to unborn persons.

Indian laws dealing with an unborn child

Indian Penal Code, 1860

Section 315 – This section of the IPC states that inflicting prenatal injury on a child possessing the
capability of being born and where such injury affects it from being born amounts to an offence of
child destruction.

Criminal Procedure Code, 1973

Section 416 – This section of the CrPC states that in case any woman who is sentenced to death is
found to be pregnant, an order to postpone the execution must be passed by the High Court, or if it
deems it fit, the execution can be reduced to life imprisonment.

Transfer of Property Act, 1882

Section 13 – This section of the said Act states that a property can be transferred for the benefit of
an unborn person through the means of trust.

The Indian Succession Act, 1925

Section 114 – This section provides for the creation of prior interest before the unborn child is made
the owner of the corporeal or incorporeal property. However, no property will be deemed to be
vested in the unborn child until he is born alive as per the Act.

Under Hindu Law, an unborn child is deemed to be a living person for certain purposes. The rights of
an unborn child that is in the womb of its mother are dealt with by Section 20 of the Hindu
Succession Act, 1956. As per Mitakshara Law, in a Hindu Undivided Family, an unborn child will have
an interest in coparcenary property. Under Mohammedan Law a gift in the name of a person who
does not exist is void.

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15. Write a note on corporate personality.

Corporate Personality is the creation of law. Legal personality of corporation is recognized both in
English and Indian law. A corporation is an artificial person enjoying in law capacity to have rights
and duties and holding property.

Corporate personality is the fact stated by the law that a company is recognized as a legal entity
distinct from its members. A company with such personality is an independent legal existence
separate from its shareholders, directors, officers and creators. This is famously known as the veil of
incorporation.

As a result of corporate personality, a company has perpetual succession. It simply means the
company is everlasting and will continue to do business until it is properly wound up. As a separate
legal person, a company will not be affected by changes such as death, transfer of shares or
resignation of any members but will continue to exist despite the number of times the changes of
membership occur. Even if all the members die, it will not influence the privileges, immunities,
estates and possessions of a company.

Corporate personality is the fact stated by the law that a company is recognized as a legal entity
distinct from its member. A company with such personality is an independent legal existence
separate from its shareholder, directors, officers and creditors.

The creditors of the company can recover their money only from the company and they cannot sue
individual members. In the same way, the company is not in any way liable for the individual debts
of its shareholders/members and the property of the company is only used for the benefit of the
company.

It enjoys certain rights and duties such as the right to hold property, right to enter into contracts, to
sue and be sued in the name of the company. The rights and liabilities of the members are different
from the company.

In short, corporate/legal personality, which the company acquires on incorporation, confers legal
personality and independent status to the company.

A corporation is distinguished by reference to different kinds of things which the law selects for
personification. The individuals forming the corpus of corporation are called its members. The
juristic personality of corporations pre-supposes the existence of three conditions:

1. There must be a group or body of human beings associated for a certain purpose.
2. There must be organs through which the corporation functions, and
 3. The corporation is attributed will by legal fiction. A corporation is distinct from its individual
members

It has the legal personality of its own and it can sue and can be sued in its own name. It does not
come to end with the death of its individual members and therefore, has a perpetual existence.
However, unlike natural persons, a corporation can act only through its agents. Law provides
procedure for winding up of a corporate body. Besides, corporations the banks, railways,
universities, colleges, church, temple, hospitals etc. are also conferred legal personality. Union of
India and States are also recognized as legal or juristic persons.

In certain cases, the corpus of the legal person shall be some fund or estate which reserved certain
special uses. For instance, a trust – estate or the estate of an insolvent, a charitable fund etc..; are
included within the term ‘legal personality’.

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16. Distinction between possession and ownership.

Most of us often confuse the terms ‘ownership’ and ‘possession’ and use them as synonyms.
However, in law, both these terms have distinct legal definitions that are quite distinguished. Let us
learn about ownership and possession in jurisprudence and the difference between the two.

Ownership

As per Salmond ownership can be described as the relation between a person and any said object
which forms the subject matter of this said ownership. Ownership also consists of a complex web of
many rights all of which are rights in rem, and not merely rights against persons.

So ownership is actually the sum total of the rights of possession, the right of disposition and even
the right of destruction. There are six essential characteristics of ownership as per the law. They are
as follows,

 The owner has the absolute right to possession. It is immaterial if the owner in actual possession
of the object, as long as he has the right of possession.
 The owner has the liberty or the right to use and enjoy the benefits of the said object. No one
can interfere with his right to use the object he owns.
 Ownership also means that the owner has the right to exhaust the object while using it.
 And he also has the right to destroy or alienate the object. This means he can destroy or dispose
of the object during his lifetime or via his will. This right is sometimes restricted by law.
 Ownership is also for an indeterminate duration. Possession or the right to use is for a limited
period, but the ownership of an object is for an indeterminate period of time.
 And finally, ownership is residuary in character. So for example, if the owner leases the object, or
gives it for use, etc. he still remains the owner.

Possession

Salmond defines possession (in legal terms) as the continuous exercising of a claim, to the exclusive
use of an object or a thing constitutes possession of the object. In simpler words, if a person has
apparent control of an object and apparent power to exclude others from the use of the object, then
we can say he has possession.
Now it is a de facto relation between a man and an object. So a man can possess a thing he doesn’t
own. Say for example the possession of a property that he has leased from someone (who will be
the owner). And the opposite is also true. One can own some object and not possess it.

Ownership Possession

Possession is more the physical control of

Ownership involves the absolute rights and
an object. The possessor has a better claim
legitimate claim to an object. It means to own
to the title of the object than anyone,
the object by the owner.
except the owner himself.

Ownership is the right of the owner against

the world indefinite in point of the user, As per the definitions, it is the continuous
unrestricted in point of disposition or exercise of a claim to exclusively possess
destroying and unlimited in point of duration and use the object/thing.
over a thing

Ownership itself gives the owner the right to However, it does not indicate the right to
possession. ownership.

The transfer of ownership is a technical and Transfer of possession is fairly easier and
long process and involves conveyance less technical.

Ownership is essentially a bundle of rights, all It is not a right, just a prima facie evidence of
rights in rem. ownership

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17. Write a note on general custom.

According to Austin, “custom is a standard of direct which the sovereign watch suddenly and not in
the compatibility of law set by a political superior. According to Halsbury law “A custom is a specific
principle which has existed either really or hypothetically from time immemorial and has received
the power of law in a specific territory, though in spite of or not steady with the general precedent-
based law of the community”.

Customs are the earliest sources of law and form the basis of the English Common Law system as we
see it today. They can be described as cultural practises which have become definite and backed by
obligation or sanction just by virtue of widespread practise and continue presence.

Customs exist in every society and form an integral part of the societal values and obligations. It’s a
habitual course of conduct not only having importance in social life but also the legal jurisprudence.
The voluntary observance of customary rules by the general population makes it more adaptable in
society. Its legal utility can be understood by examining its validity based on judicial tests laid down
by scholars and courts. Custom as a source of law has been studied by different schools of
jurisprudential thought explaining various views of the exponent jurists.

Law has acquired its present form by developing throughout many years and centuries. The origin of
law can be traced back to various sources from which it derives its validity. The term sources of law
may refer to the practices and authorities from which the laws derive their force making it binding.
Sources of law form a very important part of legal Jurisprudence. The legal definition of Source of
Law provided by Merriam-Webster is something (as a constitution, treaty, custom, or statute) that
provides the authority for judicial decisions and legislation.

The sources of law can be classified into two heads that is formal sources and informal also known as
material sources. The former type contains sources from which law derives its validity like the will of
the sovereign, the will of people, will of the state, and judicial decision of courts. According to
Salmond, Material sources are those sources from which law derives its matter. The material sources
are further divided into Legal material sources and Historical Material sources.

The legal sources are authoritative sources recognized by the law itself which include Legislations,
Judicial Precedents, Customs, and Treaties. And the historical sources are unauthoritative sources
that lack formal recognition and binding value. These are mere historical significance and help us in
understanding the development of law. It includes religion, morality, opinion of jurists and scholars,
beliefs, and local traditions.

Customs mean practices that governed the general code of conduct and every way of acting,
thinking, and believing in people in primitive times. It was usually and widely accepted by particular
communities, localities, or society as established ways of doing things at a particular time. Custom is
defined variously by several jurists and sociologists. In the sociological view, custom may be defined
as a cultural idea that describes a regular, patterned behaviour, regarded as a characteristic of life in
a social system. The ways of greeting people, manners of worshipping god are considered some
examples of customs persisting in a society. These cultural norms differ from society to society and
hold great importance.

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18. Explain the theory of strict liability.

Rule of Strict Liability

The strict liability principle is an extremely important concept under the law of torts. The basis of
this principle basically lies in the inherent harm that some activities can inflict. For example, leaking
of poisonous gasses, as it happened in the Bhopal Gas Tragedy, will attract this rule.
The underlying principle of compensation in torts generally depends on the extent of precautions a
person takes. Hence, if he takes abundant precautions to prevent some harm, the law may exempt
him from paying damages. This principle, however, does not apply to strict liability.

Under the strict liability rule, the law makes people pay compensation for damages even if they are
not at fault. In other words, people have to pay compensation to victims even if they took all the
necessary precautions. In fact, permissions allowing such activities often include this principle as a
pre-condition.

Rylands v. Fletcher

The rule of strict liability originates from the famous English case of Rylands v. Fletcher. According to
the facts of this case, the defendant owned a mill and wanted to improve its water supply. For this
purpose, he employed a firm of reputed engineers to construct a reservoir nearby.

The problem occurred when the reservoir was so full one day that the water from it started over-
flowing. The water flowed with so much force that it entered the plaintiff’s mine and damaged
everything.

The engineers, who were independent contractors of the defendant, were clearly at fault. This is
because they were negligent in constructing the reservoir. This is exactly what the defendant also
said for avoiding his liability.

The court, however, disagreed and explained the strict liability rule. It said that when somebody
keeps something on his property for his benefit, it should not escape and affect others. In case it so
escapes, the owner of that thing must compensate the victim even if he was not negligent.

Rule of Absolute Liability

The Supreme Court applied a stricter version of the rule of strict liability in the case of MC Mehta v.
Union of India (1987). In this case, harmful Oleum gas had escaped from a factory owned by Shriram
Foods & Fertilizer Industries. The gas had caused a lot of damage to people and industries nearby.

The Supreme Court held that, despite being so stringent, the strict liability rule was inadequate in
modern times. This is because scientific advancements have made modern industries even more
dangerous and hazardous. Hence, the court laid down the absolute liability rule in this case.

According to the absolute liability rule, no exceptions of strict liability shall apply in certain cases.
Therefore, the people who cause damage will have unlimited liability to compensate victims
adequately. Courts in India have applied this rule in many cases to create deterrence.

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19. Write a note on duty of care and solidary obligation.

20. Explain the nature of obligation and discuss the kinds of obligations.

Duty of Care

It is one of the essential conditions of negligence in order to make the person liable. It means that
every person owes, a duty of care, to another person while performing an act. Although this duty
exists in all acts, but in negligence, the duty is legal in nature and cannot be illegal or unlawful and
also cannot be of moral, ethical or religious nature.
In the case of Stansbele vs Troman (1948), A decorator was engaged to carry out decorations in a
house. Soon after The decorator left the house without locking the doors or informing anyone.
During his absence, a thief entered the house and stole some property the value of which the owner
of the house claimed from the decorator. It was held that the decorator was liable as he was
negligent in leaving the house open and failed his duty of care.

In tort law, a duty of care is a legal obligation which is imposed on an individual, requiring adherence
to a standard of reasonable care while performing any acts that could foreseeably harm others. It is
the first element that must be established to proceed with an action in negligence. The claimant
must be able to show a duty of care imposed by law which the defendant has breached. In turn,
breaching a duty may subject an individual to liability. The duty of care may be imposed by operation
of law between individuals who have no current direct relationship (familial or contractual or
otherwise) but eventually become related in some manner, as defined by common law (meaning
case law).

Duty of care may be considered a formalisation of the social contract, the implicit responsibilities
held by individuals towards others within society. It is not a requirement that a duty of care be
defined by law, though it will often develop through the jurisprudence of common law.

What is obligation?

Obligation is a legal bond between two individuals which control each other not in all respect but
just to perform any particular action. Obligation is that part of law which creates right of one person
over another. Right of one person is duty of another.

Definition of obligation -

Although it is hard to define term Obligation some eminent Jurists defined obligation. Definitions of
Obligation are as follows -

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.

Nature of Obligation

1. a contract;
2. unlawful damage;
3. unjustified enrichment;
4. a public promise to pay;
5. other bases provided by law
6. negotiorum gestio; ( Negotiorum gestio ([nəˌgō.shē-ˈȯr-əm-ˈgestēˌō], Latin for "management of
business") is a form of spontaneous voluntary agency in which an intervenor or intermeddler,
the gestor, acts on behalf and for the benefit of a principal (dominus negotii), but without the
latter's prior consent.)

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.

What is Solidary Obligation -

In solitary obligation, there are two or more debtors owe the same thing to the same creditor. that
means there are two or more creditors entitled to the same obligation or two or more debtors
under the same liability. A solidary obligation, or an obligation in solidum, is a type of obligation in
the civil law jurisprudence that allows either obligors to be bound together, each liable for the whole
performance, or obligees to be bound together, all owed just a single performance and each entitled
to the entirety of it. In general, solidarity of an obligation is never presumed, and it must be
expressly stated as the true intent of the parties' will. Contractual solidary obligations are frequently
created by insurance policies or co-signing a loan. A common example of a solidary obligation
created thorough operation of law is vicarious liability such as respondeat superior.

Kinds of solidary obligations -

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.

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21. Discuss the different sources of obligations.

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.

Important 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.

There are three senses in which the term “obligation” is used. In the first place, it is a synonym for
legal duty. In the second place, used in a narrower sense, it means duty corre-sponding to a
proprietary right in personam. And in the third place, it is a vinculum juris or bond of legal necessity
between two or more parties, i.e., duty from one point of view and right from another. But in all
cases obligations pertain to proprietary rights. Obligation differs from liability in that the former
refers to a duty laid upon a person which he ought to do, while the latter refers to do something
which a person must do because he has failed to do what le ought to have.

1. Contractual Obligations
2. Delictal Obligations
3. Quasi-contractual obligations
4. In nominate Obligations

(1) Contractual Obligations:

Contractual obligations are those which are created by contract or agreements which create rights in
personam between the parties, e.g., contract of sale and purchase, leases and guarantee. The rights
so created are generally proprietary in nature, but sometimes they may not be proprietary though in
personam. 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 e.g., promise of marriage.

(2) Delictal Obligations:

Delictal obligations arise from torts. Salmond defines a tort as a “civil wrong for which the remedy is
an action for damages and that is not solely the breach of a contract or the breach of trust or any
other merely equitable obligation.” 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:

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.

Quasi-contractual obliga-tions are enforced by the law on equitable principles. Both in Roman law
and English Law there are certain obligations which are not in truth contractual, but which the law
treats as if they were. They are contractual in law, but not in fact. The Romans termed them
obligations quasi ex contract, while English lawyers call them quasi- contracts or implied contracts.
Salmond says, “It is a fictitious exten­sion of the sphere of contract to cover obligations which do not
in reality fall within it.” Most of these quasi- contracts or obligations quasi ex contract fall in either of
the two following classes:
(i) All debts in general are contractual in origin, and most debts are obligations ex contracts in fact,
but some have a different source. The liability of the judgment-debtor to the judgment-creditor is
held to be contractual. A judgment creates a debt, although it is non-con-tractual, and yet the law
treats it as falling within the sphere of con-tract. Similarly, where pays money to B under a mistake,
B is liable to pay back the money to A. Here, although there is no promise by B to A to pay the
money, yet the law implies a promise.

(ii) All these cases in which a person injured by a tort is allowed by the law to waive the tort and sue
in contract instead. Such obliga-tions being in truth delictal are allowed to be treated as contractual
at the plaintiff’s option. Thus, if A obtains money from B by fraudulent misrepresentation, B may sue
him either in tort for damages for the deceit, or may waive the tort and sue on a fictitious contract
for the return of money.

(4) In nominate Obligations:

In nominate obligations are those obligations which fall in none of the three classes noted above. In
this class fall the obligations of trustees towards their beneficiaries. In nomited 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

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22. Uses and purposes of incorporation.

Incorporation of a company refers to the process of legally forming a company or a corporate entity.
Advantages of incorporation of a company are limited liability, transferable shares, perpetual
succession, separate property, the capacity to sue, flexibility and autonomy. Incorporated businesses
offer many more advantages over sole proprietorship companies or partnership companies. Let us
explore the advantages of incorporation of a company in detail.

Advantages of Incorporation of a Company (Uses and Purposes)

1. Creates a Separate Legal Entity

2. Company has Perpetual Succession
3. Can own Separate Property
4. Capacity to sue and be sued
5. Easier access to Capital
6. Corporate Personality
7. Limited Liability
8. Transferable Shares
9. Flexibility and Autonomy

Creates a Separate Legal Entity: This states that a company is independent and separate from its
members, and the members cannot be held liable for the acts of the company, even when a
particular member owns majority of shares. This was held in the case of Salomon v Salomon & Co.
Ltd. (1897) AC 22. Salomon transferred his business of boot making, initially run as a sole
proprietorship, to a company (Salomon Ltd.), incorporated with members comprising of himself and
his family. The price for such transfer was paid to Salomon by way of shares, and debentures having
a floating charge (security against debt) on the assets of the company. Later, when the company’s
business failed and it went into liquidation, Salomon’s right of recovery (secured through floating
charge) against the debentures stood prior to the claims of unsecured creditors, who would, thus,
have recovered nothing from the liquidation proceeds. The claims of certain unsecured creditors in
the liquidation process of Salomon Ltd., where Salomon was the majority shareholder, was sought to
be made personally liable for the company’s debt. Hence, the issue was whether, regardless of the
separate legal identity of a company, a shareholder/controller could be held liable for its debt, over
and above the capital contribution, so as to expose such member to unlimited personal liability. The
House of Lords held that, as the company was duly incorporated, it is an independent person with its
rights and liabilities appropriate to itself, thus, making Salomon & Co. Ltd liable, and not Salomon.

Company has Perpetual Succession: The term perpetual succession means continuous existence,
which means that a company never dies, even if the members cease to exist. The membership of a
company changes from time to time, but that has no effect on the existence of the company. The
company only comes to an end, when it is wound up according to law, as per the provisions of the
Companies Act, 2013. Re Noel Tedman Holdings Pty Ltd (1967) Qd R 56 stated that a company’s
member may come and go but this does not affect the legal personality of the company

Can own Separate Property: Since a company is termed as a separate legal entity in the eyes of law,
it can hold property in its own name and the members cannot claim to be the owner of the
company’s property(s). The Supreme Court, in the case of Bacha F. Guzdar v CIT Bombay stated that
a company being a legal person, in which all its property is vested and by which it is controlled,
managed and disposed of a member cannot, ensure the companies property on its own name. In
Macaura v. Northern Assurance Co. Ltd., a shareholder of a timber company, held all shares of the
company but one. He also insured the timber (asset of the company) on his own name, which was
destroyed in fire. When he sought compensation, it was held that they were not liable to pay any
money to the shareholder, in lieu of the timber since he did not own the timber and that timber,
which the company owned was not insured.

Capacity to sue and be sued: The Company has the capacity of suing a person or being sued by
another person in its own name. A company, though can be sued or sue in its own name, it has to be
represented by a natural person and any complaint which is not represented by a natural person is
liable to be dismissed in the same way in which an individual complaint is liable to be dismissed in
the absence of the complainant.

Easier access to Capital: Raising capital is easier for a corporation, since a corporation can issue
shares of stock. This may make it easier for your business to grow and develop. If the in the market
for a bank loan, that’s another reason to incorporate, since n most cases, banks prefer and easily
lend money to incorporated business ventures.

Corporate Personality: An incorporated company is a legally recognised entity that exists separately
from its owners and shareholders, which is different from partnership companies. Section 34(2) of
the Companies Act, 1956 states that from the date of the incorporation of the company, the
subscribers to the memorandum and other members shall be a body corporate by the name
contained in the memorandum, capable of exercising all the functions of an incorporated company
and having perpetual succession and a common seat.

Limited Liability: The Companies Act provides that in event of a company being shut down, the
members of the company are solely liable to contribute to the assets and liabilities of the company.
It is in accordance with the Companies Act – Section 34(2). However, in the case of companies that
have been incorporated, none of its members is legally bound to contribute to anything more than
the nominal value of shares held by the member which still remain unpaid. The advantage of having
limited liability for its members is one of the major reasons for setting up an incorporated company.

Transferable Shares: Section 82 of the companies act states that ‘The shares or other interest of any
member in a company shall be movable property, transferable in the manner provided by the
articles of the company. This leads to the investment of funds in shares. It is done so that members
can members can encash shares at any given time upon their will. It also serves the purpose of
providing liquidity to the investors. They can sell shares, anytime they are willing to, on the open
market or the stock exchange.

Flexibility and Autonomy: The Company has an autonomy and independence to form its own policies
and further, implement them. However, they are subject to the general principles of law, equity and
a good conscience. In accordance with the provisions that are mentioned in the Companies Act,
Memorandum and Articles of Association.

Disadvantages of Incorporation of a Company

1. Cost
2. Double Taxation
3. Loss of Personal “Ownership”
4. Required Structure
5. Ongoing Paperwork
6. Difficulty Dissolving
7. Lifting of Corporate Veil

Cost – The initial cost of incorporation includes the fee required to file your articles of incorporation,
potential attorney or accountant fees, or the cost of using an incorporation service to assist you with
completion and filing of the paperwork. There are also ongoing fees for maintaining a corporation.

Double Taxation – Some types of corporations such as a C Corporation, have the potential to result
in “double taxation.” Double taxation occurs when a company is taxed once on profits, and again on
the dividends paid to shareholders.

Loss of Personal “Ownership” – If a corporation is a stock corporation, one person doesn’t retain
complete control of the entity. The corporation is governed by a board of directors who are elected
by shareholders.

Required Structure – When you form a corporation, you are required to follow all of the rules
outlined by the state in which you filed. This includes the management of the corporation,
operational requirements and the corporation’s accounting practices.

Ongoing Paperwork – Most corporations are required to file annual reports on the financial status of
the company. The ongoing paperwork also includes tax returns, accounting records, meeting
minutes and any required licenses and permits for conducting business.

Difficulty Dissolving – While perpetual existence is a benefit of incorporating, it can also be a

disadvantage because it can require significant time and money to complete the necessary
procedures for dissolution.

Lifting of Corporate Veil – From the juristic point of view, a company is a legal person distinct from
its members [Salomon v. Salomon and Co. Ltd. (1897) A.C 22]. This principle may be referred to as
the ‘Veil of incorporation’. The courts, in general, consider themselves bound by this principle. The
effect of this Principle is that there is a fictional veil between the company and its members. That is,
the company has a corporate personality which is distinct from its members. But, in a number of
circumstances, the Court will pierce the corporate veil or will ignore the corporate veil to reach the
person behind the veil or to reveal the true form and character of the concerned company. The
rationale behind this is probably that the law will not allow the corporate form to be misused or
abused. In those circumstances in which the Court feels that the corporate form is being misused, it
will rip through the corporate veil and expose its true character and nature.

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23. Discuss the natural law theory. State the criticism of the theory.

Natural law is the moral theory of jurisprudence and often states that laws should be on the basis of
ethics and morals. This law also states that law should focus on what is ‘correct’. Natural law was
found by humans on their disposition of reasoning and choosing between good and bad. Hence, it is
said that this law plays a significant role in establishing moral and ethical standards.

Natural law is a philosophy of law that focuses on the laws of nature. Moreover, this school of
jurisprudence represents the belief that there are laws common to all societies. This is irrespective
of whether they are written down or can officially enact.

This school of thought tells us that law is both – rational and reasonable. Moreover, natural law
proposes that laws are more of a logical progression from morals. Therefore, actions that are
morally wrong will be against the law. But also, actions that are morally right can’t truly and justly be
against the law. Natural law exists regardless of what laws are enacted.

There is no unanimity about the definition and exact meaning of Natural Law. In jurisprudence the
term ‘Natural Law’ means those rules and principles which are supposed to have originated from
some supreme source other than any political or worldly authority. It is basically a priori method
different from empirical method, the forms, accepts things or conclusions in relation to a subject as
they are without any need or enquiry or observation while empirical or a posteriori approach tries to
find out the causes and reason in relation to the subject matter. It symbolizes Physical Law of Nature
based on moral ideals which has universal applicability at all places and terms. It has often been
used either to defend a change or to maintain status quo according to needs and requirement of the
time.

For example, Locke used Natural Law as an instrument of change but Hobbes used it to maintain
status quo in the society. The concepts of ‘Rule of Law’ in England and India and ‘due process’ in USA
are essentially based on Natural Law. Natural Law is eternal and unalterable, as having existed from
the commencement of the world, uncreated and immutable. Natural Law is not made by man; it is
only discovered by him.

Natural Law is not enforced by any external agency. Natural Law is not promulgated by legislation; it
is an outcome of preaching of philosophers, prophets, saints etc. and thus in a sense, it is a higher
form of law. Natural Law has no formal written Code. Also there is neither precise penalty for its
violation nor any specific reward for abiding by its rules. Natural Law has an eternal lasting value
which is immutable. Natural Law is also termed as Divine Law, Law of Nature, Law of God, etc. Divine
Law means the command of God imposed upon men.

Natural Law is also 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 of nature of man. It is also
the Universal or Common Law as being of universal validity, the same in all places and binding on all
peoples, and not one thing at Athens. Lastly in modern times we find it termed as “moral law” as
being the expression of the principles of morality.

The Natural Law denies the possibility of any rigid separation of the ‘is’ and ‘ought’ aspect of law and
believes that such a separation is unnecessarily causing confusing in the field of law. The supporters
of Natural Law argue that the notions of ‘justice’, ‘right’ or ‘reason’ have been drawn from the
nature of man and the Law of Nature and, therefore, this aspect cannot be completely eliminated
from the purview of law. It has generally been considered as an ideal source of law with invariant
contents.

Criticisms of the Natural Law theory

1. One of the difficulties for natural law theory is that people have interpreted nature differently?
Should this be the case if as asserted by natural law theory, the moral law of human nature is
knowable by natural human reason?

2. How do we determine the essential or morally praiseworthy traits of human nature? Traditional
natural law theory has picked out very positive traits, such as "the desire to know the truth, to
choose the good, and to develop as healthy mature human beings”. But some philosophers, such as
Hobbes, have found human beings to be essentially selfish. It is questionable that behaviour in
accordance with human nature is morally right and behaviour not in accord with human nature is
morally wrong. For instance, if it turns out that human beings (at least the males) are naturally
aggressive, should we infer that war and fighting are morally right?

3. Even if we have certain natural propensities, are we justified in claiming that those propensities or
tendencies should be developed? On what grounds do we justify, for example, that we ought to
choose the good?

4. For Aquinas, the reason why nature had the order it did was because God had put it there. Other
thinkers, such as Aristotle, did not believe that this order was divinely inspired. Does this alleged
natural moral order require that we believe that there is a God that has produced this natural moral
order? Evolutionary theory has challenged much of the basis of thinking that there is a moral natural
order, since on evolutionary theory species has developed the way they have out of survival needs.

5 It is doubtful that one can infer moral principles forbidding adultery, rape, homosexuality, and so
forth, either from biological facts about human nature or from facts about the inherent nature of
Homo sapiens.

6. Critics of natural law theory say that it is doubtful, however, that the inherent nature of Homo
sapiens establishes laws of behaviour for human beings in the same way as it may establish laws of
behaviour for cats, lions, and polar bears. It is especially difficult because so much of human
behaviour is shaped by the environment, that is, by deliberate and non-deliberate conditioning,
training, and education.

7. Two philosophers (Aquinas and Aristotle) integral to the theory have different views about god’s
role in nature, which confuses the issue, especially when trying to decipher if the theory relies on the
existence of god.

8. The intrinsic nature of humans as it pertains to establishing laws of behaviour may not be the
same for animals, which presents difficulties within the theory.

9. Human behaviour may be solely reliant upon the environment that one is exposed to, which
includes social classes, education and upbringing, this opposes the theory.
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24. Discuss the purpose of criminal justice in the light of various theories of punishment.

Main objectives of the criminal justice system

1. To prevent the occurrence of crime.

2. To punish the transgressors and the criminals.
3. To rehabilitate the transgressors and the criminals.
4. To compensate the victims as far as possible.
5. To maintain law and order in the society.
6. To deter the offenders from committing any criminal act in the future.

What Is Punishment?

Punishment is the penalty on someone as a result of their wrongdoing.

Crime is against society. Police aid in preventing the crime by arresting the criminals and forwarding
them to court, where they are punished according to the law. The result of crime is punishment. The
main aim of punishment is to reform the criminals and convert them into good Samaritans (a person
who voluntarily offers help or sympathy in times of trouble) and law-abiding citizens. According to
research, there are several theories of punishment. Let us see the essential ones.

There are eight important kinds or theories of punishment. They are:

1. Deterrent Theory of Punishment

2. Retributive Theory of Punishment
3. Preventive Theory of Punishment
4. Reformative Theory of Punishment
5. Expiatory or Compensatory Theory of Punishment
6. Incapacitation Theory of Punishment
7. Utilitarian Theory of Punishment
8. Multiple Approach Theory

1. Deterrent Theory of Punishment

The word ‘deter’ means to prevent. Here, deterrent theory refers to refraining from doing a
particular act. The main goal behind using this theory is to restrain criminals from committing a
crime. In such theories, punishments awarded are severe in nature which creates a fear not only in
the criminal’s mind but also in the mind of others. This theory is still prevalent in some Islamic
countries.

In other words: The object of this theory is not only to prevent the wrongdoer from doing a wrong
subsequently but also to make him an example for society and other people who have criminal
tendencies.

Locke is the supporter of the deterrent theory and said that “every commissioner of crime should be
made a ‘bad bargain’ for the offenders.”

Drawbacks of the Deterrent Theory of Punishment

1. Punishment fails to create fear in the mind of criminals once the punishment is over.
2. This type of punishment fails to create fear in the mind of hardened criminals.
3. Arouses sympathy in the mind of the public for criminals.
Example of the deterrent theory of punishment: Post Nirbhaya judgment, still rape cases are on the
rise.

2. Retributive Theory of Punishment

The word ‘retribute means to give in return the same thing that has been received. To payback. It is
also known as Vengeance Theory. It is based on the principle – tit for tat. This theory is against the
principle of Mahatma Gandhi.

There was a belief that if the offender is subjected to the same torture as he had done to the victim,
then it makes the offender realise what he has done.

In other words: This theory proposes tit for tat, eye for an eye, tooth for a tooth. The punishment
has to be proportional to the crime committed. The believers of this theory say that criminals must
suffer pain. Retributive theory is the most ancient theory of justice.

Drawbacks of the Retributive Theory of Punishment

1. It exasperates (irritate and frustrate intensely) the offender.

2. There is no relief for the offence committed by the offender.
3. This type of punishment reflects the wild character of justice.
4. Punishment may not be revengeful always.

Example of the retributive theory of punishment: Rape in return for rape may not be a punishment
for the offender.

3. Preventive Theory of Punishment

The main aim of this theory is to prevent crime. When the criminals are kept in jails, they are kept
out of society. The object of this theory is to prevent or disable the offenders from repeating the
offence by giving them punishment. A supporter of preventive theory is Paton.

Examples of the preventive theory of punishment include death, life imprisonment, forfeiture of
property etc.

Drawbacks of the Preventive Theory of Punishment

Fails to fulfil the aim of juvenile offenders and offenders who have committed the offence for the
first time.

Case Law: Dr Jacob vs the State of Kerala: The apex court stated that punishment should be
deterrent, retributive, preventive, expiatory, compensatory, incapacitation and utilitarian theory.
Preference for one theory over the other is not a good policy to award punishment.

4. Reformative Theory of Punishment

This theory focuses on reforming the criminals and bringing the criminals back to society as good
and law-abiding citizens. This is based on the Gandhian principle: Hate the sin, not the sinner.

This theory was successful to some extent in the case of juveniles. Some work or craftsmanship is
imposed on the offender during his period of confinement with the aim that he will start a new life
after his punishment is over.
Example of the reformative theory of punishment: Ankit, a prisoner, has learned pottery during his
stay in jail. After his release from jail, he started a pottery business, earned his livelihood and lived
happily.

Drawbacks of the Reformative Theory of Punishment

1. If this theory is applied to criminals, the prison will no more remain as a prison rather
become a dwelling house.
2. This theory fails to meet its objective on criminals who are habitual offenders.
3. If a good citizen is punished for what he has not done, this theory may have adverse effects.

5. Expiatory or Compensatory Theory of Punishment

The theorists of this theory say that the object of the punishment is self-realization. If the offender,
after committing an offence, realizes his guilt, then he must be forgiven.

In other words: This theory relies on compensation to the victim for the loss caused by the accused.
In this way, the offenders are made to realise the same sufferings they have caused to the victim.

Example of the expiatory or compensatory theory of punishment: Sukant, who injured Bikash,
undergoes imprisonment where he was made to work and sell his outcomes. The money earned is
provided to Bikash to compensate for his treatment.

Drawbacks of the Expiatory or Compensatory Theory of Punishment

1. Oversimplification of the motive of the crime.

2. Too idealistic
3. Too impracticable in modern society.

Case Laws:

1. DK Vasu vs State of West Bengal: A victim who is guaranteed fundamental rights of the
Constitution must be compensated as he is guaranteed the right to personal life and
liberty under Article 21 by the Constitution, which was violated by the officer of the State.

2. State of Gujarat vs High Court of Gujarat: The court has raised serious concerns where the victim
is paid from the daily wages that are earned by the criminal during his confinement and demanded
comprehensive legislation for the same.

6. Incapacitation Theory of Punishment

This theory puts the criminals into the state of being incapacitated to prevent the offence. A fear
also grows in the mind of the criminals and future generations before attempting to commit future
crimes, thus preventing it.

Incapacitated means deprived of strength or power.

Example of the incapacitation theory of punishment: Capital punishments and life imprisonment.

According to a report by Chicago University, such a theory succeeded in eliminating twenty per cent
of the crime.

7. Utilitarian Theory of Punishment

This theory applies discouraging methods on criminals to prevent crimes such as crippling or
disablement, etc. This theory provides both affirmative and negative results. Such punishments are
considered to be very harsh in nature.

Example of the utilitarian theory of punishment: Death penalty for murder convict.

8. Multiple Approach Theory

If a single theory fails to meet the objective, then a combination of theories is the choice. Hence the
court should make a judicious approach while selecting theories of punishments.

Conclusion

The very purpose of awarding punishment is to avoid crime in society. The root cause of crime must
be found and addressed to reduce the crime in society, with some of the root causes being
unemployment, education etc.

Some heinous crimes like rape, murder etc., where punishment cannot fulfil the damage caused, in
such cases, the victims must be awarded compensation with fair and speedy justice. The court
should think from every aspect while awarding punishment because a hundred accused may go off,
but an innocent should not be punished.

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25. Explain the circumstances destroying or weakening the binding force the precedent.

Once a decision is overruled by any subsequent ruling, it loses all its binding authority. But there are
certain other circumstances which also destroy or weaken the binding force of judicial precedent in
the partially or totally they are as follows:-

1. Ignorance of statute:
2. Inconsistency between earlier decisions of higher court
3. Inconsistency between early decisions of the court of the same rank
4. Precedent sub silentio
5. Decision of equally divided court
6. Dissenting judgments
7. Erroneous decisions
8. Abrogated decisions
9. Affirmation or reversal on a different ground

1) Ignorance of statute:

A precedent is not binding if it be rendered in ignorance of any statute or any other rule having the
force of statute. It is also not binding if the court had the knowledge of the existence of the statute
but it failed to appreciate its relevance to the matter in hand due to negligence or ignorance.

2) Inconsistency between earlier decisions of higher court:

A precedent loses its binding force completely if it is inconsistent with the decision of a higher court.
Thus the court of appeal in “Young V/s. Bristol Aeroplane Corporation Limited (1944) KB 718 (729)”
observed that it is bound to follow its own previous decisions as well as those of court of co-ordinate
jurisdiction. However the court is bound to refuse to follow a decision of its own, which do not
expressly overruled, cannot, in its opinion, stand with the decision of the House of Lords or if it finds
that there is inconsistency between its earlier decisions.
3) Inconsistency between early decisions of the court of the same rank:

A court is not bound by its own earlier decisions which are conflicting with each other the conflict
may arise due to inadvertence, ignorance or forgetfulness in not citing earlier decision before the
court. In such a case the earlier decisions are not binding on the court.

4) Precedent sub silentio

A decision is said to be sub silentio when the point of law involved in it is not fully argued or not
perceived by the court. The decision in “Gerard vs worth of Paris limited (1936) 2 ALL ER 905 (CA)” is
a good illustration to explain a Precedent sub silentio. In this case an employee who was discharged
by the defendant company obtained damages for his wrongful dismissal against the company. He
applied for a grainshee order on a bank account of the company which was in the name of
liquidator. The only point argued was priority of claimant debt and the court of appeal granted the
order. The question whether a grainshee order could be properly made on a account standing in the
name of liquidator was never argued or considered by the court. Therefore when this very point was
argued in a subsequent case before the court of appeal the court held itself not bound by the
previous decisions as the point was sub silentio in the previous case.

5) Decision of equally divided court:

There may be cases where the judges of the appellate court are equally divided. In such a case
practice is to dismiss the appeal and hold that the decision appealed against is correctly decided. But
this problem does not arise now a days because benches are always constituted with an even
number of judges. In India, however, where the judges in a Division Bench of a High court are equally
divided, the practice is to refer the case to a third judge who is decision shall be treated as final
unless it is set aside by the Supreme Court.

6) Dissenting judgments:

Most judicial decisions are an unanimous. But at time few judges may write or even note a dissent in
the case in which they disagree with the majority. However, while judges are free to differ on judicial
matter and interpretation of law in a case in hand but there is always an effort on the part of the
majority to minimise or even eliminate dissent. The dissenting judgment do not in any way
undermine the authority or authenticity of law because they provide scope to correct errors of law
due to blindly following the doctrine of precedent. For instance, just take the question whether and
to what extent freedom under the constitution should be interpreted to allow ‘live in relationship’
which has cropped up as a crucial social problem in India in recent decades. The society copes up,
manages and out grows with such problems but rarely solves it. There is always a scope for dissent
when such questions come up for adjudication before the higher Courts. Judges decide such issue on
basis of their own life experiences and there is always an scope of possibility that a dissenting note
of a particular judge may become a ratio in a case in future due to overruling of case wherein such
dissent was recorded.

7) Erroneous decisions:

The decisions which are founded on misconceived principles or in conflict with the fundamental
principles of law lose their binding force totally.

8) Abrogated decisions:

A decision cease to be binding if statute inconsistent with it is subsequently enacted. So also it

ceases to be binding if it is reversed, overruled or abrogated. If a decision is wrong or irrational, it
may be abrogated by a subsequent enactment or decision of a higher court.(This is expressed in latin
maxim: “cessante ratione legis cessat ipsa lex”)

9) Affirmation or reversal on a different ground:

When higher court either affirms or reverses the judgment of the lower court on a ground different
from that on which the judgment rests, the original judgment is not deprived of all the authority but
the subsequent court may take a view that a particular point which the higher court did not touch, is
rightly decided.

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26. Discuss the functions and purposes of law.

Law is an instrument which manages human lead/conduct. Law implies Justice, Ethical quality,
Reason, Order, and Righteous from the view purpose of the general public. Law implies Statutes,
Acts, Rules, Regulations, Orders, and Ordinances from perspective of council. Law implies Rules of
court, Decrees, Judgment, Requests of courts, and Injunctions from the perspective of Judges.
Hence, Law is a more extensive term which incorporates Acts, Statutes, Rules, Guidelines, Orders,
Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees, Judgment, tort,
Jurisprudence, Tort, Law, Legal theory, and etc.

The main functions of law in a society

1. Maintenance of law and order in society

2. Protection of Fundamental Rights
3. Control of Political System
4. The regulations of economic activity
5. Regulations of human relations
6. International relations

1. Maintenance of law and order in society

Laws are directives that govern and regulate human behaviour and code of conduct to ensure order.
They are made for people within a territory to abide with. Laws are also responsible for keeping
peace of a country intact. Many countries possess a very diverse population. If the same law is
applied throughout the population, irrespective of their diversity, different needs and differences in
opinions, it would cause conflicts.

Hence, laws are drafted to cater the needs of different parts of the society and help in maintaining
peace in the country. For example, in a secular country like India, the constitution leaves certain
subjects, like marriage, under people's respective religion. These laws are called Personal laws.

2. Protection of Fundamental Rights

There would be no use of any law that does not work towards protecting and securing the rights of
people. Law is in place to maintain order and benefit the society. They are written to cater to
people's needs and interests. In cases of crimes, laws punish violators in order to ensure that the
basic rights of the people are protected and further set examples to ensure security. Thus, one of
the most fundamental function of law is to promote and protect human rights

3. Control of Political System

Law and politics have an obvious relationship. One of the major governmental functions is to draft
and amend laws in the interest of the people. However, the political system is also subject to law
and has to perform its duties according to law and be responsible for its consequences. Thus, law
also governs and controls the political system by predetermining their duties, the structure of the
system and who qualify to be a part of it.

4. The regulations of economic activity

Law also sets the rules and regulations that must be followed while performing economic activities
such as sale, trade, labour and investment. Law is needed to have valid and legal business deals and
agreements. Laws such as sales tax, income tax, GST and customs law are also responsible for
government revenue that are used as funds for investing in the development of the country. Hence,
law is also responsible for governing the economic sector and its counterparts to ensure ordinance.

5. Regulations of human relations

Human relations, such as contracts, agreements, families and marriages also come under the
purview of law. Law plays the function of keeping human behaviour and relations in a check. Thus, it
automatically influences human relations by restricting unacceptable behaviour, for example
adultery. It is also responsible for clarifying the correct procedure of entering legal relationships, its
legality and validity. Cases in marriage, like divorces, are needed to be approved by the law and
registered in order to be valid. Hence, law holds control over the regulation of human relations.

5. International relations

Law is responsible for conducting and making international relations. It plays an important role in
forming economic, diplomatic and strategic relations with other nations. Visa law is also responsible
for allowing people from other countries to enjoy the services provided by that nation. Laws are also
used against policies and demands of other nations, and protect and promote the nations interests.

Purposes of Law

Through the law, the information is passed on to the citizens every day in many various ways. Also, it
is reflected in many branches of law. For example, contract law states that agreements need to
exchange services, goods, or anything that is of value. Thus, it includes everything from purchasing a
ticket to the trading options on the derivates market.

Furthermore, property law defines the duties and rights of people towards the property. This
includes real estate along with their possessions. Also, it includes intangible property like shares of
stock and bank accounts. Various offenses against state, federal, or local community in itself
appeared as a subject of criminal law.

1. Maintaining Order
2. Establishing Standards
3. Resolving Disputes
4. Protecting Liberties and Rights

1. Maintaining Order

This law is considered as an offshoot to establishing the standards. Some resemblance is necessary
for a civilized society. Therefore, the same is reflected in the law. Furthermore, the law when it is
enforced provides consistency with the society’s guidelines.
Furthermore, wildlife management laws were passed so that the game can be conserved and it
protects the future generations for years to enjoy.

2. Establishing Standards

This law is a guideline to the minimum accepted behaviour in society. There are some activities that
are a crime for a society to determine it will not tolerate certain behaviours that may damage or
injure the person or their property. For example, it is a crime to injure a person without any sort of
justification. Thus, doing so can constitute a crime of assault.

3. Resolving Disputes

Disputes are not avoided in a society that has been comprised of people with different wants, needs,
values, etc. Also, the law provides a formal means to solve the disputes which are the court system.

4. Protecting Liberties and Rights

The constitutions and the statutes of India provide for various rights and liberties in its states. Also,
one function of the law is to protect various rights and liberties from unreasonable or violations
intrusions by organizations, persons or government. Thus, if someone believes that the freedom of
speech has been prohibited by the government may pursue the remedy by bringing the case in the
courts.

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27. A trust is curious instance of duplicate ownership where the powers of management and
rights are separated. Explain.

Trust and Beneficial Ownership

Trust ownership is an instance of duplicate ownership. Trust property is that which is owned by two
persons at the same time. The relation between the two owners is such that one of them is under an
obligation to use his ownership for the benefit of the other. The ownership is called beneficial
ownership. The ownership of a trustee is nominal and not real, but in the eye of law the trustee
represents his beneficiary. In a trust, the relationship between the two owners is such that one of
them is under an obligation to use his ownership for the benefit of the other. The former is called
the trustee and his ownership is trust ownership. The latter is called the beneficiary and his
ownership is called beneficial ownership. The ownership of a trustee is in fact nominal and not real
although in the eye of law, he represents his beneficiary. If property is given to X on trust for Y, X
would be the trustee and Y would be the beneficiary or cestui que trust. X would be the legal owner
of the property and Y would be the beneficial owner. X is under an obligation to use the property
only for the benefit of Y.

A trustee has no right of enjoyment of the trust property. His ownership is only a matter of form and
not of substance. It is nominal and not real. In the eye of law, a trustee is not a mere agent but an
owner. He is the person to whom the property of someone else is fictitiously given by law. The
trustee has to use his power for the benefit of the beneficiary who is the real owner. As between the
trustee and the beneficiary, the property belongs to the beneficiary and not the trustee.

Who is a Beneficial Owner?

A beneficial owner is an individual who gets to enjoy ownership benefits even though the title to
some form of the property is in the name of another individual. It also refers to any individual or
group of individuals who have the power to vote or control the transaction decisions, either directly
or indirectly, with regards to specific security, such as shares belonging to a company.

Beneficial ownership differentiates itself from legal ownership. In most of the cases, the legal, as
well as the beneficial owners, are the same. However, there are some situations where the
beneficial owner of a property may wish to remain anonymous, legitimate, and sometimes not-so
legitimate.

A beneficial owner is a person who enjoys the benefits of ownership even though the title to some
form of property is in another name. It also means any individual or group of individuals who, either
directly or indirectly, has the power to vote or influence the transaction decisions regarding a
specific security, such as shares in a company.

Trust and Beneficial Ownership:-

Trust ownership is an instance of duplicate ownership. Trust property is a property owned by two
persons at the same time. The relation between the two owners is such one among them is under an
obligation to use his ownership for the benefit of the other. The ownership is called beneficial
ownership. The ownership of a trustee is nominal and not real but within the eye of the law, the
trustee represents his beneficiary.

Trust and beneficial ownership:

Legal and beneficial ownership belongs to an entity who has the specific property right “use and
Title” in equity. But the property belongs to some other person. Example: If MR. John’s property is
transferred to trustees to hold it for the benefit of the beneficiaries. It is not MR. John’s trust that
owns the land or shares but the trustees of MR. John’s who owns it. So their names would be used
as the trust and beneficiaries.

Trust and Beneficial Ownership

The subject-matter of such ownership consists of property owned by two persons wherein one
person is obligated to use it to the benefit of the other. The person under such an obligation is called
the trustee and his ownership is known as trust ownership. The person to whose benefit the
property is to be used is called the beneficiary and his ownership is known as beneficial ownership.
Trust ownership is only a matter of form and not a matter of substance. This means that a trustee’s
ownership of the property is only nominal in nature. He is given someone else’s property fictitiously
by law and thereby obligating him to use it to the real owner’s benefit.

A beneficial owner is a person who enjoys the benefits of ownership though the property's title is in
another name.

Beneficial ownership is distinguished from legal ownership, though in most cases, the legal and
beneficial owners are one and the same.

Publicly traded securities are often registered in the name of a broker for safety and convenience.

Wealthy individuals at risk of lawsuits often use trusts to act as the legal property owner.

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28. Explain with the help of illustration,

the scope of legal terms - intention, motive and culpable negligence.
Intention:

It is the state of mind of the person doing the crime. It can be proved when the defendant can
foresee virtually that the consequences of the action of the person is going to kill, cause grievous
injury or any other prohibited harm to them.

Intention - an Integral Part of Crime

According to Sir Stephen “A crime is an act or an omission in respect of which legal punishment may
be inflicted on the person who is in default either by acting or omitting to act”. So crime is nothing
but an Act which is forbidden by law and is against the moral sentiments of the society.

One of the principles of Criminal law says that an act cannot be considered as a crime when the
mind of the person who has done the said act is innocent and not guilty. The fundamental principle
of penal liability is based on a Latin maxim “Actus non facit reum nisi mens sit rea” which means
“The Act and the Intent must concur to constitute a crime”. In simple words, it means an act done by
a person will not be considered as a crime unless it is done with a guilty mind.

For example, Jack picks up his watch from the locker room at Tennis club and goes back home. Later,
he realizes that it is not his watch but even then he retains it in his possession as this watch is better
looking and more expensive than the watch he had earlier. As Jack wanted to retain the watch with
himself thereby dispossessing the true owner of the same so there is both a guilty act and a guilty
mind and that’s when it’s considered to be an offence.

Intention as a Mental Element of a Crime

One of the most important ingredient of a crime is Mens rea i.e. an intention to do a wrongful act
knowing the evil consequences of the same. The element of Mens rea is indicated by use of words
such as intention, malice, fraudulent, recklessness etc. There must be a mind at fault before
commission of an offence. Mens rea includes both the intention to do an act as well as abstaining
from doing an act which is required to be done.

Mere intention to do a wrongful act is itself prohibited by law. An accused will be held guilty if it’s
proved that he had an intention to commit the crime but the burden of proof lies on the opposite
party and there should be sufficient justification to conclude that intention existed. The court in
Ramachandra Gujar’s case held that intention can be only inferred from the conduct of a person and
the probable effect of such a conduct must be taken into account as well.

In State of Maharashtra vs M.H. George, the Supreme Court held that criminal intention is a
psychological fact which needs to be proved even with regards to offences under special acts unless
it’s specifically ruled out or ruled out by necessary implication.

Motive:

A motive in criminal law is the cause that moves people to induce into a certain action. Motive is not
a basic element of crime but it is mostly looked into while investigation of a criminal case. Motive is
the reason of any act, hence, even if motive was good but the act was wrong then criminal liability
may arise.

A motive is a person’s state of mind that inspires him to do an act. It usually means the purpose of
the act’s commission. Motive is generally irrelevant in tort law, just like intention. Motive leads to
intention formation, which is the ultimate cause. Motive is the ultimate object with which an act is
done, while the immediate purpose is the intention.
The cause that moves individuals to induce a certain action is a motive, in law, especially criminal
law. Typically, the legal system allows motive to be proven to make plausible reasons for committing
a crime for the accused. However, motive is not essential for a tort action to be maintained. It is not
just because the motive is good that a wrongful act becomes legal. Similarly, due to an improper, evil
motive or malice, a lawful act does not become wrongful.

The decisions of Lord Halsbury and Lord Watson in Bradford Corporation v. Pickles and Allen V. Flood
may be treated as one of the earliest decisions that settled that motive is irrelevant in tort.

Kundula Bala Vs State of A.P: In this case the son-n-law before his marriage to the demanded a piece
of land from the deceased. The connivance of the mother-n-law was also there before this demand.
The marriage took place but the deceased refused to transfer the property in the name of the
accused and wanted to give it to the daughter. That infuriated the accused and crime was
committed. It was held that there was a strong motive for the accused to commit the crime.

Criminal negligence

Criminal negligence refers to conduct in which a person ignores a known or obvious risk, or
disregards the life and safety of others. Culpable Negligence is a type of negligence that occurs when
a person acts in a manner that is so careless, it is seen as similar to having exposed another person
to harm or caused an injury to another. As defined by the Florida Standard Jury Instructions,
culpable negligence is “more than a failure to use ordinary care for others” and is instead “a course
of conduct showing reckless disregard for human life” which can include “a conscious indifference to
consequences”. Other words associated with culpable negligence include reckless or grossly
careless.

One of the most common cases that a personal injury lawyer or slip and fall lawyer will handle is
known as “negligence.” Simply put, this means that a person has a sustained an injury as a result of
someone else failing to exercise the care or duty that they are legally expected to maintain. Sadly,
negligence is an all too common occurrence in many different situations. As you would expect from
the word itself, negligence is usually just a matter of carelessness or even laziness. An automobile
repair shop that doesn’t bother to clean up a pool of grease on the floor can result in a fall. A
stairwell with uneven or damaged steps that should be repaired, wasn’t, and a slip occurs. While
these injuries are unfortunate, it’s also very easy to understand why someone would allow a
moment of weakness or thoughtlessness to create a situation where an accident can happen.

When a person is driving a car and texting at the same time, and in the meanwhile breaks someone
else’s car, he is criminally negligent because the criminal laws of the land, do not allow texting and
driving.

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29. Write a note on subordinate legislation and legal person.

In law, a legal person is any person or 'thing' (less ambiguously, any legal entity) that can do the
things a human person is usually able to do in law – such as enter into contracts, sue and be sued,
own property, and so on. The reason for the term "legal person" is that some legal persons are not
people: companies and corporations are "persons" legally speaking (they can legally do most of the
things an ordinary person can do), but they are clearly not people in the ordinary sense.

There are therefore two kinds of legal entities: human and non-human. In law, a human person is
called a natural person (sometimes also a physical person), and a non-human person is called a
juridical person (sometimes also a juridic, juristic, artificial, legal, or fictitious person, Latin: persona
ficta).

Legal person , a body of men or of property which the law, in imitation of the personality of human
beings, treats artificially as subject of rights and duties independent of its component parts. The
classic example of a legal person is the corporation. Although the most familiar type of corporation is
that engaged in business activities, history has witnessed corporations formed as the vehicle for
charitable enterprises, cooperative nonprofit-making enterprises, municipal and governmental
operations, and religious and social activities. For example, in the classical Roman legal system, the
universitates – corporate groups which possessed common treasuries and were endowed with a
legal personality separate and distinct from that of their individual members – included various
municipal and religious, as well as industrial and trading, associations.

The corporation has usually featured the following characteristics: a name common to the aggregate
of its component individuals or properties; a life independent of the lives of its components; the
possession of privileges or rights, liabilities or duties, which do not inhere in its membership as
individuals; and the divorce of ownership and management, with the authority of the managers to
act as the agents and representatives of the corporation being conferred, limited, and determined
not by the consent of the owners but by the law itself.

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30. Discuss the legal realism? How it is differing from Austin theory of law?

Legal realism is a naturalistic approach to law. It is the view that jurisprudence should emulate the
methods of natural science, i.e., rely on empirical evidence. Hypotheses must be tested against
observations of the world. (Wikipedia)

Legal realism is a naturalist philosophy to law. It is of the perspective that jurisprudence should
imitate the natural science methodologies that is, relying on empirical evidence. Assumptions must
be put to the test by global findings. Legal realists conclude that legal science can analyse law
exclusively through natural science’s value-free tools, rather than by metaphysical inquiry into the
essence and purpose of the law, which is different and distinct from the law. Legal realism, in fact,
states that the law cannot be isolated from its implementation, and cannot be easily interpreted.
This illustrates the importance of recognizing the considerations present in judicial decision-making
by identifying the essence of law in fields such as legal decisions issued by judges and their
deference or rejection to the previous precedent and the doctrine to final judgment.

Legal realism is characterized as a type of jurisprudence by its emphasis on the law as it currently
appears in reality, rather than the way it works in the books. To this end, it addressed mainly the
conduct of the judges and the conditions that behaviour affect judicial decision-making processes. As
Karl Llewellyn states, “Judges stand behind judgements; judges are men; they have human histories
as men.” Therefore, the law did not reside in an abstract domain with universal laws or values, but
rather inseparable from human behaviour and from the ability with judges to decide the law. To
understand legal actors’ decisions and actions, legal realists turned to the ideas of the social sciences
to understand the human relationships and behaviour that culminated in a given legal result.

The moral realists are contrary to the principles of natural law. Legal realists argue that these
cultures are historical and/or natural concepts and should be addressed by a variety of psychological
and sociocultural hypotheses, perceiving legal concepts as determined by human behaviour, which
should be evaluated empirically, instead of by theoretical assumptions about the law. Legal realism
is therefore at odds with most versions of legal positivism. Legal realism was largely a response to
late 19th and early 20th-century legal formalism, which became the prevailing style through most of
the early 20th century. It succeeded in its negative optimism to put suspicion on formalistic
expectations that judges actually do as they meant, such that it is always claimed that ‘we are just
realists now.’ However, realism struggled in its positive aspiration to find a reliable way to foresee
how judges will act than depending on the judges’ explanations.

Criticism on Realist theory

The Realist theory had witnessed its heyday from the 1920s to the 1940s. Legal realism was
completely replaced in the 1950s by the movement of legal processes, which considered law as a
process of “reasoned elaboration” and asserted that appeals to “legislative purpose” and some
other well-established legal standards and norms can provide an accurate response to the most-
awaited legal questions. British law thinker HLA Hart, in his 1961 book The Concept of Law, began
with what other academics viewed as a “decisive blow” to legal rationality, challenging the statistical
philosophy of law that OW Holmes has taken on from other realists. Hart points out that if a statute
is simply a predictor about what courts are about to do, a judge who is evaluating the legal facts of a
dispute before him is actually thinking, “Why am I supposed to resolve this matter?”

Legal positivism

Legal positivism is a philosophy of thinking for theoretical jurisprudence founded during the 18th
and 19th centuries primarily by judicial theorists, such as Jeremy Bentham and John Austin. Although
Bentham and Austin formulated the philosophy of legal positivism, empiricism offered the
theoretical basis behind these innovations. The positivist argument doesn’t suggest the principles of
law are unintelligible, unimportant, or incidental to the legal theory. That means they’re not deciding
if there are rules or legal frameworks. If a country has a legal framework, it depends on the existence
of such governing mechanisms, not on the degree to which it fulfils principles of liberty, equality, or
the rule of law.

What rules remain in effect in that framework depends on what legal norms the authorities consider
as authoritative; such as statutory actions, court rulings, or social practices. The reality that a policy
is moral, sensible, effective, or reasonable is rarely enough just to believe it is really the norm, and
the possibility that it is unfair, unwise, wasteful, or imprudent is never enough cause to question it.
Law is a question, according to positivism, of what was presented (ordered, determined, exercised,
accepted, etc.). Austin thought the thesis was “easy and boisterous.” Although it is undoubtedly the
prevailing opinion among analytically oriented law theorists, along with frequent critiques and
misunderstandings it is still the target of opposing definitions.

Every human community has some sort of social order, some way to label and promote accepted
behaviour, dissuade disapproved behaviour, and settle conflicts about that behaviour. What, then,
separates countries with political structures and their rules within such institutions? This needs
emphasizing before presenting any positivist solutions that these are not the only issues worth
asking regarding the rule. While knowing the essence of law needs an explanation of what makes
law unique, comprehension of what it has in common with other types of social regulation is often
needed.

Criticism on legal positivism

The most prominent critics of legal positivism arise from the assumption, in one manner or another
that it refuses to give morality its due. A philosophy that relies on the facticity of law appears to add
nothing to our perception that law has vital roles to make human life move on, that the rule of law is
a valued value, and that the vocabulary and application of the law are heavily moralised.
Accordingly, the proponents of positivism hold that the most prominent attributes of law are not to
be seen in its source-based nature, but in the capacity of law to promote the common interest, to
protect civil rights, or to rule with dignity.

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31. Distinguish possession in law from possession in fact.

Possession in fact or de facto possession is the actual or physical possession. And possession in law
or de jure possession is possession in the eye of law, that is, recognized and protected by law.

They both most often exist together must not always. For example, a servant holds a bicycle on
behalf of his master, he has actual possession of it, but in the eye of law the possession is with the
master. The Roman law also recognizes the distinction between possession in fact and possession in
law as possession naturalis and possession civilis.

A few illustrative cases are as follows:

R v. Chissers- A person went into a shop and took some cloth in his hand to see it and then ran away
with it. He was held guilty of larceny because he had not obtained possession of the cloth only by
taking it in his hand and the possession of the cloth was still with the shop-keeper.

Acona v. Rogers- Here, the owner of a house allowed a lady to keep her luggage in one of the rooms
of the house. But the keys of that room were with the lady and not with the owner of the house.
And thus, the court held that in the eye of law the lady was in possession of the luggage and nit the
owner of the house.

Elwas v. Rogers- the plaintiff gave their land on lease to the defendant for erecting a gas plant. The
defendant found a pre-historic boat below the land. The court held that the plaintiff had the right to
possession over the boat.

South Staffordshire Waterworks Co. v. Sharman (gold rings case)- the plaintiff company employed
the defendant to clean a pond owned by the company upon its land. While cleaning the pond the
defendant found gold rings at its bottom. The court held that the company had the right of
possession over the rings as the pond was owned by it upon its land.

Hannah v. Peel- the defendant purchased a house but never occupied it and thus, it was
requisitioned by the government and a soldier was stationed in it. The soldier found a brooch in the
house, from the top of a window frame and handed it over to the police. But the police without
trying to find the owner of the brooch, sold it. Thus, the plaintiff (soldier) claimed the brooch or the
value of it as its finder while the defendant maintained that he was entitled to the brooch as the
house where it was found belonged to him.

The court held that the defendant was not entitled to the brooch as he never stayed in the house
and so had neither the corpus nor animus as he had no knowledge of the brooch. And the plaintiff
was entitled to it as the finder thereof, except against the true owner who could not be found.

Merry v. Green- a man purchased a chest of drawers at an auction and later found some money in a
secret drawer. The court held him guilty of theft as he was not aware of the existence of the money
at the time when he purchased the chest of drawers and thus had no animus of possession until he
found the money.
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32. Explain the necessity of administration of justice. Distinguish between civil and criminal
administration of justice.

The Administration of Justice is the process by which the legal system of a government is executed.
The presumed goal of such an administration is to provide justice for all those accessing the legal
system. The phrase is also commonly used to describe a University degree (Bachelor of Arts in
Administration of Justice), which can be a prerequisite for a job in law enforcement or government.

The administration of justice is a crucial part of our democracy designed to prevent and control
crime, shield the public from harm, provide detention and rehabilitation services, and finally, ensure
equal justice for all citizens through the judicial system. 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.

Necessity of administration of justice

1. Uniformity and consistency

2. Wisdom of the community
3. Fixed Rules and Easy to Judge
4. Regulating the conduct of the citizen
5. Nation’s Status in front of the World
6. No State System without It
7. Risk in the Society
8. Machinery of justice
9. Permanent and necessary element of civilisation

Elucidation

1. Administration of justice brings uniformity and consistency in the law and it causes a systematic
development of law.
2. The Rules of law represent the collective wisdom of community therefore, in following them
there are little chances of going wrong. Sir Edward Coke said that the wisdom of law is wiser
than any man’s wisdom and Justice represents wisdom of the community.
3. As the rules are fixed, it helps judge in applying the law uniformly.
4. As the law is known to the citizen, it enables them to regulate their conduct in accordance with
it.
5. In determining a nation’s status in a political organisation, the test is how effective is its
administration of justice.
6. A State may not be called a state, if it has failed to discharge its functions concerning
the administration of justice.
7. Life becomes risky in a society in which there is no preservation of the rights of men and no
prevention of injustice.
8. There may not be any necessity of the administration of justice in a utopian form of society, but
in the present materialistic world, it is impossible to live without the machinery of justice.
9. Administration of Justice, thus, must be regarded as a permanent and necessary element of
civilisation and as a device that admits of no substitute.
Distinguish between civil and criminal administration of justice

No. Criminal Justice Civil Justice

1 All Criminal Wrongs are administered by All civil wrongs are administered by Civil
Criminal Justice. For e.g., Theft, murder, Justice. For e.g., Breach of contract, trespass
rape, forgery, etc. to land etc.
2 All crimes are public wrongs. All civil wrongs are private wrongs.
3 Most of the Criminal proceedings are Generally, the affected person institutes the
instituted by the State. civil proceedings.
4 A crime is treated as a harmful act to the Civil wrongs are deemed only to violate the
entire society. rights of individuals.
5 The object of the criminal justice is to The object of the civil justice is to
‘punish’ the wrong-doer, ranging from provide ‘compensation’ to the affected
death to fine. person by the wrongdoer.
6 Criminal justice is administered according Civil justice is administered according to the
to the law of Criminal Procedure. law of Civil Procedure.
7 The doctrine of estoppel does not apply The doctrine of estoppel apples only civil
to criminal justice. justice.
8 The principle of criminal justice is that The principle that thousand guilty men
thousand guilty men can escape, but can escape rather than one innocent
one innocent should not be punished. should be punished does not apply to civil
proceedings.
9 The guilt must be proved beyond The rules of evidence may be relaxed by the
reasonable doubts. consent of parties.
10 The benefit of doubt always goes in ‘Benefit of doubt’ principle does not arise in
favour of the accused. civil justice. !
11 The burden of proof always lies on the In civil proceedings, it is the duty of the
prosecution. parties to the dispute to prove their case.
12 The rules of evidence cannot be relaxed The burden of proof lies on both the
by consent of the parties. plaintiff and the defendant.
13 The cases once instituted cannot be The proceedings may be withdrawn by the
compounded withdrawn in criminal parties with their own consent.
justice except when permitted by law.
14 The criminal justice deals with remedial The civil justice deals with the distribution
and breaches of duties. So it is a of property, wealth and honour. So it is a
corrective justice. distributive justice.
15 Criminal courts administer the Criminal Civil courts administer the civil justice.
Justice.
16 In criminal cases, the obligation lies on In Civil cases it is parties’ responsibility to
the Court to bring all relevant evidence bring all relevant evidence on record.
on record so that justice is done to the
accused.

Legal Justice: Civil Justice and Criminal Justice

Both civil wrongs and crimes are administered by legal justice. Based on the civil wrong / civil liability
and crime/penal liability, legal justice is divided into two types:

1. Civil Justice - Civil Wrongs / Civil Suits: Civil wrong is an infringement of the private or civil rights
belonging to individuals and cause civil injuries. For e.g., a breach of contract, o trespass to land
infringe the rights of the individual wronged, but does not injure society in general. So, under civil
justice the victim can sue for compensation in Civil Courts. !!The civil wrongs and civil suits are
dealt under civil proceedings in Civil Courts. If a civil proceeding is successful, then it results in
judgement and decree for enforcement of the rights of the plaintiff. The object of civil proceedings is
thus enforcement of rights. Both in civil and criminal proceedings, realisation of money is
involved and for disobedience of civil decrees, civil imprisonment is imposed. Civil disputes
are mostly private in nature and they are not committed against the community at large and the
goal of civil procedure is non-private.

2. Criminal Justice - Criminal Wrongs: Crimes are breach and violation of public rights and
duties. They affect the whole community. Law considers crimes as harmful for the society in general,
even if the victim is only an individual. !!For e.g., murder is an offence against individual, but it is
considered as a harm to the society and so mere compensation to the victim’s family from the
murderer is not sufficient punishment to the murderer. The State further proceed against the
accused and on proof, convict him with imprisonment/fine, etc.,!!Crimes and offences come under
the purview of criminal proceedings. Criminal proceedings are conducted in criminal Courts. The
criminal proceedings result in punishments like death sentence, life imprisonment and fine. It also
includes executing bonds for keeping peace and tranquillity and also keeping good behaviour. !!The
object of criminal proceedings is to punish wrongs and crimes of more harmful to society and people
than civil disputes. Sometimes, the civil wrongs and criminal crimes overlap each other. The
following are the instances:

1. Certain wrongs are committed against the State and therefore they are called public wrongs, but
law regards them as civil wrongs. For e.g., refusal to pay taxes is an offence against the State, but it is
a civil wrong only. Similarly, an action by the State for the recovery of a debt is purely civil, though it
may be a public wrong.

2. Some civil wrongs cause more harm than criminal offences. For e.g., the gross negligence of a
contractor in construction of a building may result in collapse of the building, thereby causing great
loss to property and life. This is more harmful than a petty theft or assault or criminal trespass.

3. Sometimes, the same acts simultaneously amount to both a crime and a civil wrong. For e.g.,
defamation, negligence etc.

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33. Write a note on primary and statutory rights.

The primary and legal rights are known by other names also, such as primary and secondary rights,
principal and accessory rights. Pollock calls them as substantive and adjective rights

The primary right

The primary right is important and is a very basic right. These rights are ipso facto. These rights are
independent in nature. It has a binding force. They are right in rem. Example: the right to reputation.
If these rights are infringed in such case a person can approach the Courts of Law. A legal remedy is
available against such right in the form of compensation or imposing a penalty or imprisonment.

Sanctioning rights are resultant rights. They are supporting rights to primary rights. They are right in
persona, which results from some wrongdoing. Example: it arises when there is an infringement of
primary rights.

Legal Rights
A legal right is an “interest which is protected and recognized by the rule of law. It is an interest
which has its duty and disregard of which is wrong”.

According to Gray:

A legal right is “that power which the man has, to make a person or persons to do or restrains from
doing a certain act or acts so far as the power arises from society imposing a legal duty upon the
person or persons. He states that the “right is not the interest itself, it is the means to enjoy the
interest secured”.

In the case of State of Rajasthan vs Union of India, the Supreme Court stated that “Legal rights in the
strict sense are correlatives of legal duties and legal rights are defined as the interests which the law
protects by imposing duties on other persons. But the legal right in the strict sense means right is the
immunity from the legal power of another. Immunity is no subjection at all”.

Essential conditions of legal right

According to Salmond, there are five essential conditions that need to be fulfilled:

The person of inheritance/ Subject of right:

He shall be the person who is the owner of the right. He is the subject of the legal right. Such a
person is called a person of inheritance. Example:-Y purchase a van for Rs 20,000. Here Y is the
subject of the right. Even in the case when the property is bequest to the unborn child, the unborn
child is the owner of the property even though he is uncertain.

The subject of duty/ the person of incidence:

It is the duty of another person or persons to respect and recognize the right of the person. Such a
person who has a legal duty is called a person of incidence. Example- If A has a legal right against B,
then it is the duty of B to respect the right of A.

Contents or Subject Matter of legal right:

The subject matter of legal right is an essential element. It deals with the subject matter of the legal
right. It is related to do something or to refrain from doing certain acts or forbearance. It obligates
the person to forbear or act in favour of the person possessing a legal right. Example-Y purchase a
van for Rs 20,000. Here Y is the subject of the right. The subject matter (Y) has a legal right and he
can exclude others.

The object of the legal right:

The object of the legal rights is a thing or object over which the legal right is exercised. Example- A
purchases the car for Rs 1, 00,000. Here the car is the object.

Title of the legal right:

The title is the process by which the right is vested or conferred on the person. It is certain events by
which right is acquired from its previous owner. Example- By purchase or gift or will etc.

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34. Discuss the legal rights of lower animal, unborn and dead person.

Legal Status of Unborn Person

 The legal understanding of the concept of person' or personality' revolves around possession of
rights and capacity to discharge legal duties. Hence, natural persons, that is, human beings are the
prime claimants of legal personality. Legal personality of natural persons begins at birth and
extinguishes with death with the result that pre-birth, post death stages are devoid of any legal
persona.

Understanding absence of personality in the pre-birth stage poses problems as the unborn being
understood as incapable of exercising any legal rights and not being duty bound towards anybody,
gets a raw deal when it comes to tortious acts committed towards it. There are crimes committed
against them that are not recognised as such and hence make punishment impossible.

For law, the problem is complicated by other disciplines like theology and medicine maintaining the
unborn to be living' entity. A natural person must be a living human being, i.e., must not be a
monster and must be born alive to be ranked as a person in law. The exception to this rule is that of
an infant en ventresa mere (child in womb), who is supposed to be born for many purposes. A child
in its mother's womb can acquire certain rights and inherit properly, but the rights are contingent on
his being born alive. He is counted as a person for purposes of partition. Such a child can claim
damages for injury sustained while in its mother's womb.

A pregnant woman condemned to death is respite as of right till the delivery of the child. A child not
yet conceived cannot be deemed to be a person, although provision may be made for such beings
contingently coming into existence by vesting property in trustees for them. The creation of
proprietary rights in favour of unborn persons is governed by the rule against perpetuity.

That rule provides that you cannot postpone vesting of an estate beyond a longer period than the
lifetime of the transferee or transferees existing at the date of the transfer and the minority of the
ultimate unborn beneficiary. The contingent rights of unborn persons become vested on birth or at
the end of such period not exceeding that prescribed by the rule against perpetuity, as may be fixed
by the person granting the rights to unborn persons.

Legal Status of Dead Persons

Dead men are no longer persons in the eye of law. They have laid down their legal personality with
their lives, and are now as destitute of rights as of liabilities. They have n rights because they have
no interests. They do not even remain the owners of their property until their successors enter upon
their inheritance. However, there are three things, more especially, in respect of which the anxieties
of living men extend beyond the period of their deaths, in such sort that the law will take notice of
them.

These are man's body, his reputation and his estate. Dead men are not legal persons. They are
immune from duties as no sanction can be enforced against them. They are not the subjects of rights
either. With their death they lay down their legal personality and as such are destitute of legal rights
and duties.

The law, however, interferes with respect to a dead person in the following ways:

1. A corpse is not a property and cannot be disposed of by will. But every person dying has a right to a
decent burial and the criminal law secures it.
2. The law protects the reputation of dead persons from libelous attacks. Under the Indian Penal
Code it is defamation to impute anything to a deceased person if the same would harm the
reputation of that person if living and is intended to be hurtful to the feelings of his family or other
 near relations. But here also the law does not protect a dead person from being libeled but
protects the living descendants who would suffer by an attack upon their deceased ancestor.
3. A man has extensive power to regulate by will the disposition and enjoyment of the property
which he leaves, subject of course to the restriction imposed by law. But here again the
testamentary dispositions are calculated only to protect the interests of living persons.

Legal Status of Lower Animal

In the present day context, the animals are deemed incapable of possessing legal rights & duties.
They are merely things, often the objects of legal rights and duties but they are never subjects of
them. The property status of the animals has some inherent issues or defects with it. The first of t
which is that the legal characterization of the animals has been failed to keep up with the
advancements in science technology and modern philosophical knowledge. They, the animals, were
recognized as property from the time when all the leading and most intelligent philosophers had a
belief that humans had been given dominion over all the animals by God himself. It was also
believed that because of the lack of rationality and autonomy they didn’t had any moral standing.
But the change can be seen in the views of modern philosophers. In the Animal Liberation of Peter
Singer, he refuted the Descartes’ assertion, that animals, because of not being sentient, they have
no rights. There he himself asserted that the both human and animals have ability to suffer, feel pain
and experience enjoyment, so the interest of both humans and animals should receive equal moral
consideration. Since Darwin impounded his theory of evolution, scientist has also come to accept
that humans have evolved from other animals. And the varying degree of sentience can be
recognized in various species of animals.

For example:

A beast has no legal personality. Anything done to the animals may be a wrong to its owner or to the
society but it is no wrong to the beast. But the animals have two rights to be protected.

1. Cruelty to animals is made a criminal offence.

2. A trust for benefit for a particular class of animals as opposed to one for individual animal is
valid and enforceable as a public and charitable one.

Causation

In law, a man is held liable either for doing acts which are mischievous or for causing actual injury to
the plaintiff. Causation, therefore, is an important concept for determining liability in law. In fact,
before deciding the question of liability the question of causation should be decided first. Thus, if A
is to be held responsible for burning B's house, he must first be shown to have caused it. Causation,
therefore, is an important factor to determine responsibility whether it is of a criminal or civil
nature.

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35. Write a note on privilege and immunity.

Liberties/Privilege- Duty:

Legal liberties are the benefits which I derive from the absence of legal duties imposed upon myself.
They are the various forms assumed by the interest which I have in doing as I please. They are the
things which I may do without being prevented by the law. The sphere of my legal liberty is that
sphere of activity within which the law is content to leave me alone. The term right is often used in a
wide sense to include such liberty. I have a right (that is to say, I am at liberty) to do as I please with
my own; but I have no right and am not at liberty to interfere with what is another's. I have a right to
express my opinions on public affairs, but I have no right to publish a defamatory or seditious libel. I
have a right to defend myself against violence, but I have no right to take revenge upon him who has
injured me. The jural opposite of liberty is duty which means that the other person is under an
obligation not to infringe or interference with my sphere of liberty. According to Hoffield, Liberty is
form of a weaker right, it only signifies what a person can do in their space, without being interfered
with.

Immunity-Liability:

When immunity i.e., protection is granted to one person, they are shielded from any liability which
might be imposed on them because of the immunity being granted by the law.

For example: Wearing of helmets while driving is mandatory. However, Sikhs wearing a turban are
not required to wear a helmet. This is an immunity granted to them because of which they will not
be subjected to any liability under the law.

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36. Write a note on vicarious liability.

Vicarious liability means the liability of a person for an act committed by another person and such
liability arises due to the nature of the relation between the two. For e.g. A, is a driver who works for
B and while driving B’s car for taking him to his office, he hits C, a pedestrian due to his negligence in
driving. In such a case even though B was not driving the car he will still be liable for the accident
which was caused due to the negligence of A.

Vicarious liability is a liability where the master is liable for the tort of his servant, principal for his
agent, partner for another partner and an employer for an employee. Whenever a person commits
an act which is unlawful, that person is held liable for violating the law and thus he is punished
accordingly. For e.g. A enters into the property of B without his permission, such an act of A amounts
to trespass and thus he is liable.

Vicarious liability is a situation in which one party is held partly responsible for the unlawful actions
of a third party. The third party also carries their own share of the liability. Vicarious liability can
arise in situations where one party is supposed to be responsible for (and have control over) a third
party and is negligent in carrying out that responsibility and exercising that control.

For example, an employer can be held liable for the unlawful actions of an employee, such as
harassment or discrimination in the workplace.

If a construction worker mishandles the controls of a crane and topples the wall of a nearby building
that was not slated to be worked on, the company overseeing the construction will likely face
vicarious liability. If an engineer likewise loses control of a train, and it proceeds down the tracks on
its own, the company that owns and operates the train may face vicarious liability for any damages
and injury afflicted by the runaway locomotive.

An employer might also be held liable if an employee operates equipment or machinery in a

negligent or inappropriate way that results in damages to property or personal injury.

This is the general rule of torts but in some situations a person can be made liable even if he has not
done any wrong, if it is done by some other person with whom he shares a certain relation, such as
master and servant or principal and agent and in these cases his liability is called vicarious liability.
These are the major relations in which vicarious liability of a person arises

1. Master and Servant.

2. Partners in a Partnership Firm.
3. Principal and Agent.
4. Company and its Directors.
5. Owner and Independent Contractor.

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37. Explain void and voidable agreements

Void Agreement:

According to Section 2(g) of the Indian Contract Act, 1872. An agreement is not enforceable by law is
said to be void.

Any agreement which ends the rights of any party or removes any party from the liability with
respect to any contract when the period expires and such agreement is entered into so far as to
impose restrictions on the other party from enforcing their right, then such an agreement is void.

Section 24 to 31and 56 of the Indian Contract Act, 1872 lay down the provisions relating to the
agreements which are declared void are as follows:

1) If consideration and objects are unlawful in part. ( Section 24)

2) Agreement without consideration(Section 25)
3) Agreement in restraint of marriage (Section 26)
4) Agreement in restraint of trade (Section 27)
5) Agreement in restraint of legal proceedings (Section 28)
6) Uncertain Agreements (Section 29)
7) Wagering Agreement (Section 30)
8) Agreement contingent on impossible event (Section 31)
9) Agreement to do impossible acts (Section 56)
10) Agreement to minor
11) When both parties are under mistake of law.

All agreements are not enforceable by law and therefore, all agreements are not contracts.

Voidable Agreements as per provisions of Indian Contract Act, 1872:-

Voidability of agreements without free consent:- when consent to an agreement is caused by

coercion , fraud or misrepresentation the agreement is voidable at the option of the party whose
consent was so caused.

However, A party to a contract, whose consent was obtained by fraud or misrepresentation, may, if
he thinks fit, insist that the contract shall be performed.

Power to set aside contract induced by Undue Influence:- When consent to an agreement is caused
by undue influence , the agreement is a contract voidable at the option of the party whose consent
was so caused. A contract is said to be induced by undue influence where the relation subsisting
between the contracting parties are such that one of the parties is in a position to dominate the will
of the other. In such a case the burden of proving that such a contract was not induced by undue
influence shall lie upon the person who is in a position to dominate the will of other.

Liability of a Party preventing event on which contract is to take effect:- When a contract contains
reciprocal promises and one party to contract prevents the other from performing his promise, the
contract becomes voidable at the option of the party so prevented.[8] Obvious principle is that a
person cannot take advantage of his own wrong. For ex. A and B contract that B shall execute certain
work for A for a certain sum of money. B is ready and willing to execute the work accordingly, but A
prevents him from doing so, the contract is voidable at the option of B.

Effect of failure to perform at fixed time, in a contract in which time is essential:- When time is
essence of contract and party fails to perform in time, it is voidable at the option of other party[9]. A
person who himself delayed the contract cannot avoid the contract on account of (his own) delay.

Difference between Void and Voidable Agreement:-

A void contract is considered to be a legal contract that is invalid, even from the start of signing the
contract. On the other hand, a voidable contract is also a legal contract which is declared invalid by
one of the two parties, for certain legal reasons.

While a void contract becomes invalid at the time of its creation, a voidable contract only becomes
invalid if it is cancelled by one of the two parties who are engaged in the contract.

In the case of a void contract, no performance is possible, whereas it is possible in a voidable

contract. While a void contract is not valid at face value, a voidable contract is valid, but can be
declared invalid at any time.

While a void contract is non-existent and cannot be upheld by any law, a voidable contract is an
existing contract, and is binding to at least one party involved in the contract.

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38. What are the requirements of valid customs?

Essentials of valid custom

(1) Custom must also be reasonable. This means that it should be in accordance with the rules of
justice, equity and good conscience.

(2) Custom must be certain. In order to make a custom definite and certain, universality in
observance is absolutely necessary. If the custom is varied from time to time, there will be no
universality, and consequently, it will not be a valid custom.

(3) Custom must be ancient. A custom must be of long standing, which would indicate that, by
common consent, it has been accepted as the law governing a particular locality, class or family. If
need not be of immemorial antiquity, but a long usage is absolutely necessary.

(4) Custom must not be opposed to any law. In order that the custom be a valid one, it is also
essential that it must not be forbidden by any act of the legislature. If it is so forbidden, the Courts
will not recognise such a custom, although it may satisfy all the other requirements of a valid
custom.

(5) Custom must not be opposed to morality or public policy. Although the standards of morality
vary from time to time, from place to place, and from community to community, the Courts take
upon themselves and responsibility of determining what is moral in the facts and circumstances of
the particular case. If a custom is immoral or opposed to public policy, it will naturally not be
enforced.

(6) Custom must be continuous. Continuity is pre-requisite for the validity of a custom. If a custom is
well-established, it is continuous. It does not start and end by fits and starts. However, if there is a
breach of a custom in a particular instance, it cannot be said that the custom is destroyed, because it
may continue to be applicable thereafter.

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39. Write a note on mischief rule.

The mischief rule is one of three rules of statutory interpretation traditionally applied by English
courts, the other two being the "plain meaning rule" (also known as the "literal rule") and the
"golden rule". It is used to determine the exact scope of the "mischief" that the statute in question
has set out to remedy, and to help the court rule in a manner which will "suppress the mischief, and
advance the remedy".

The rule considers not only the exact wording of the statute, but also the legislators' intentions in
enacting it. In applying the rule, the court is essentially asking whether parliament in enacting the
statute intended to rectify a particular mischief even though it might not be covered by a literal
reading of the statute's wording. For example, if a law prohibits a specific behaviour "in the street",
the legislators might – or might not – have intended the same behaviour on a first-floor balcony
overlooking the roadway to be covered.

The Mischief Rule is a certain rule that judges can apply in statutory interpretation in order to
discover Parliament’s intention. The application of this rule gives the judge more discretion than the
literal and the golden rule as it allows him to effectively decide on Parliament’s intent. It can be
argued that this undermines Parliament’s supremacy and is undemocratic as it takes law-making
decisions away from the legislature. Legislative intent is determined by examining secondary
sources, such as committee reports, treatises, law review articles and corresponding statutes.

This rule has often been used to resolve ambiguities in cases in which the literal rule cannot be
applied but associated problem is that the fact that this rule helps achieve that the use of this rule is
limited due to Parliamentary intent. So according to the author, this modern use of the mischief rule
ought to be understood as one of the components of what is characterized as the “modern” method
of statutory construction, rather than a stand-alone rule serving (as it formerly had), as an
alternative to the methods of construction proposed by the plain meaning rule and the golden rule.

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40. Explain the idea of ownership. Difference between trust and beneficial ownership.

Definition of ownership

Jurists have defined ownership in different ways. All of them accept the right of ownership as the
complete or supreme right that can be exercised over anything.

Thus, according to Hibbert ownership includes four kinds of rights within itself.

1. Right to use a thing

2. Right to exclude others from using the thing
3. Disposing of the thing
 4. Right to destroy it.

Trust ownership is an instance of duplicate ownership. Trust property is that which is owned by two
persons at the same time. The relation between the two owners is such that one of them is under an
obligation to use his ownership for the benefit of the other. The ownership is called beneficial
ownership. The ownership of a trustee is nominal and not real, but in the eye of law the trustee
represents his beneficiary. In a trust, the relationship between the two owners is such that one of
them is under an obligation to use his ownership for the benefit of the other.

The former is called the trustee and his ownership is trust ownership. The latter is called the
beneficiary and his ownership is called beneficial ownership. The ownership of a trustee is in fact
nominal and not real although in the eye of law, he represents his beneficiary. If property is given to
X on trust for Y, X would be the trustee and Y would be the beneficiary or cestui que trust. X would
be the legal owner of the property and Y would be the beneficial owner. X is under an obligation to
use the property only for the benefit of Y.

A trustee has no right of enjoyment of the trust property. His ownership is only a matter of form and
not of substance. It is nominal and not real. In the eye of law, a trustee is not a mere agent but an
owner. He is the person to whom the property of someone else is fictitiously given by law. The
trustee has to use his power for the benefit of the beneficiary who is the real owner. As between the
trustee and the beneficiary, the property belongs to the beneficiary and not the trustee.

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41. Discuss various kinds of ownerships.

Different kinds of ownership

Experience shows that there are many kinds of ownership and some of them are corporeal and
incorporeal ownership, sole ownership and co-ownership, legal and equitable ownership, vested and
contingent ownership, trust and beneficial ownership, co- ownership and joint ownership and
absolute and limited ownership.

1. Corporeal and Incorporeal Ownership

2. Trust and Beneficial Ownership
3. Legal and Equitable Ownership
4. Vested and Contingent Ownership
5. Sole Ownership and Co-ownership
6. Co-ownership and Joint Ownership
7. Absolute and Limited Ownership

1. Corporeal and Incorporeal Ownership

Corporeal ownership is the ownership of a material object and incorporeal ownership is the
ownership of a right. Ownership of a house, a table or a machine is corporeal ownership. Ownership
of a copyright, a patent or a trademark is incorporeal ownership. The distinction between corporeal
and incorporeal ownership is connected with the distinction between corporeal and incorporeal
things. Incorporeal ownership is described as ownership over tangible things. Corporeal things are
those which can be perceived and felt by the senses and which are intangible. Incorporeal ownership
includes ownership over intellectual objects and encumbrances.

2. Trust and Beneficial Ownership

Trust ownership is an instance of duplicate ownership. Trust property is that which is owned by two
persons at the same time. The relation between the two owners is such that one of them is under an
obligation to use his ownership for the benefit of the other. The ownership is called beneficial
ownership. The ownership of a trustee is nominal and not real, but in the eye of law the trustee
represents his beneficiary. In a trust, the relationship between the two owners is such that one of
them is under an obligation to use his ownership for the benefit of the other.

The former is called the trustee and his ownership is trust ownership. The latter is called the
beneficiary and his ownership is called beneficial ownership. The ownership of a trustee is in fact
nominal and not real although in the eye of law, he represents his beneficiary. If property is given to
X on trust for Y, X would be the trustee and Y would be the beneficiary or cestui que trust. X would
be the legal owner of the property and Y would be the beneficial owner. X is under an obligation to
use the property only for the benefit of Y.

A trustee has no right of enjoyment of the trust property. His ownership is only a matter of form and
not of substance. It is nominal and not real. In the eye of law, a trustee is not a mere agent but an
owner. He is the person to whom the property of someone else is fictitiously given by law. The
trustee has to use his power for the benefit of the beneficiary who is the real owner. As between the
trustee and the beneficiary, the property belongs to the beneficiary and not the trustee.

3. Legal and Equitable Ownership

Legal ownership is that which has its origin in the rules of common law and equitable ownership is
that which proceeds from the rules of equity. In many cases, equity recognizes ownership where law
does not recognize ownership owing to some legal defect. Legal rights may be enforced in rem but
equitable rights are enforced in personam as equity acts in personam. One person may be the legal
owner and another person the equitable owner of the same thing or right at the same time. When a
debt is verbally assigned by X to Y, X remains the legal owner of it but Y becomes its equitable
owner. There is only one debt as before though it has now two owners.

The equitable ownership of a legal right is different from the ownership of an equitable right. The
ownership of an equitable mortgage is different from the equitable ownership of a legal mortgage.

There is no distinction between legal and equitable estates in India. Under the Indian Trusts Act, a
trustee is the legal owner of the trust property and the beneficiary has no direct interest in the trust
property itself. However, he has a right against the trustees to compel them to carry out the
provisions of the trust.

4. Vested and Contingent Ownership

Ownership is either vested or contingent. It is vested ownership when the title of the owner is
already perfect. It is contingent ownership when the title of the owner is yet imperfect but is capable
of becoming perfect on the fulfillment of some condition. In the case of vested ownership,
ownership is absolute. In the case of contingent ownership it is conditional. For instance, a testator
may leave property to his wife for her life and on her death to A, if he is then alive, but if A is dead to
B. Here A and B are both owners of the property in question, but their ownership is merely
contingent. It must, however, be stated that contingent ownership of a thing is something more
than a simple chance or possibility of becoming an owner. It is more than a mere spes acquisitionis.
A contingent ownership is based upon the mere possibility of future acquisition, but it is based upon
the present existence of an inchoate or incomplete title.

5. Sole Ownership and Co-ownership

Ordinarily, a right is owned by one person only at a time. However, duplicate ownership is as much
possible as sole ownership. When the ownership is vested in a single person, it is called sole
ownership; when it is vested in two or more persons at the same time, it is called co-ownership, of
which co-ownership is a species. For example, the members of a partnership firm are co-owners of
the partnership property. Under the Indian law, a co-owner is entitled to three essential rights,
namely

1. Right to possession
2. Right to enjoy the property
3. Right to dispose of

Therefore, if a co-owner is deprived of property, he has right to be put back in possession. Such co-
owner has interest in every portion of the property and has a right irrespective of his quantity of
share to be in possession jointly with other co-owners.

6. Co-ownership and Joint Ownership

According to Salmond, “co-ownership may assume different forms. Its two chief kinds in English law
are distinguished as ownership in common and joint ownership. The most important difference
between these relates to the effect of death of one of the co-owners. If the ownership is common,
the right of a dead man descends to his successors like other inheritable rights, but on the death of
one of two joint owners, his ownership dies with him and the survivor becomes the sole owner by
virtue of this right of survivorship.”

A joint ownership occurs when two or more persons are entitled to the same right or bound by the
same obligation in respect of a thing. For example, a partnership property is owned by the persons
constituting the firm jointly and trustees are the joint owners of the trust property. The essence of
the conception is that there is only one right and one obligation, so that anything which extinguishes
such right or obligation, releases all parties.

7. Absolute and Limited Ownership

An absolute owner is the one in whom are vested all the rights over a thing to the exclusion of all.
When all the rights of ownership, i.e. possession, enjoyment and disposal are vested in a person
without any restriction, the ownership is absolute. But when there are restrictions as to user,
duration or disposal, the ownership will be called a limited ownership.

For example, prior to the enactment of the Hindu Succession Act, 1956, a woman had only a limited
ownership over the estate because she held the property only for her life and after her death; the
property passed on to the last heir or last holder of the property. Another example of limited
ownership in English law is life tenancy when an estate is held only for life.

Conclusion

We may in conclusion say that:

1. Ownership is a right which comprise of powers, claims, privileges etc.

2. Ownership is in respect of a thing may be corporeal or incorporeal
3. The right relating to or connection with ownership are subject to the state regulation i.e. can be
limited or restricted by law
4. Owner is he who is entitled to the residue of rights with respect to an object left after the
limitation resulting from the voluntary acts of the owner or those imposed by law are exhausted
 5. Ownership does not imply or indicate absolute or unlimited rights either use, disposal or
duration.

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My notes

Nature of Law

1. Law brings a lot of scientific factors like right, wrong, exception, punishment, etc. That’s why the
law is a normative science.
2. Law keeps changing based on the requirements of society. One of the major examples of this one
is homosexuality in the IPC. Because the society is changing. Law is dynamic in nature.
3. Law depends on the territory too. Because there are many laws in India and Bangladesh that are
not in other places too.
4. Laws might be different in different territories but they are universally accepted subjects.

Value of Law

1. Law is a result of excessive study and research. Many jurists and scholars have researched on it
for decades. That’s why it has a lot of weightage.
2. It is a result of legal, political, social and psychological thoughts (criminology).
3. It has educational value. You can become a lawyer, barrister, solicitor, judge, attorney as a career
option.
4. It is a growing concept. Just some years ago, anyone couldn’t even think about Cyber Crime
related law or a major breakthrough in Intellectual property related law. As these things are
growing, the law makers have to make law on these issues.
5. It is more of a practical subject. Let’s say in science, a student has to read many concepts like how
a rocket is made from a particular formula and all. This thing is more of hypothetical thing for
most of the students. But when someone studies law, he or she can apply most of it in real life.

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Criminal justice

Criminal justice is the delivery of justice to those who have been accused of committing crimes. The
criminal justice system is a series of government agencies and institutions. Goals include the
rehabilitation of offenders, preventing other crimes, and moral support for victims. The primary
institutions of the criminal justice system are the police, prosecution and defense lawyers, the courts
and prisons.

Criminal Justice refers to the agencies of government charged with enforcing law, adjudicating
crime, and correcting criminal conduct. The criminal justice system is essentially an instrument of
social control: society considers some behaviours so dangerous and destructive that it either strictly
controls their occurrence or outlaws them outright. It is the job of the agencies of justice to prevent
these behaviours by apprehending and punishing transgressors or deterring their future occurrence.
Although society maintains other forms of social control, such as the family, school, and church, they
are designed to deal with moral, not legal, misbehaviour. Only the criminal justice system has the
power to control crime and punish criminals.

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.

1. To prevent the occurrence of crime.

2. To punish the transgressors and the criminals.
3. To rehabilitate the transgressors and the criminals.
4. To compensate the victims as far as possible.
5. To maintain law and order in the society.
6. To deter the offenders from committing any criminal act in the future.

************************************* ************************** ************

Civil 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 arise 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

santioning enforceament.

Have you ever heard the expression 'Show me the money?' Well, with civil justice, that is the
question the court typically seeks to answer. Civil justice is a way for individuals to achieve a fair
solution when they have been injured or harmed due to another person's negligence, recklessness,
or malpractice. The civil justice system allows one to sue for money damages and obtain recovery for
injuries. In other words, the civil justice system allows one to hold others accountable for their
actions. If the court finds that one is liable, that party has to 'show the money' and pay damages to
the injured party.

Civil justice is a system of law used to resolve disputes between individuals and/or organizations.
Explore the definition, process, rules, and procedures of civil justice. Recognize who plaintiffs and
defendants are in civil justice cases, and understand the purpose of the civil justice system.

The civil justice system does not determine an offender’s guilt or innocence, but works to determine
whether the offender is liable for the harm caused to the victim. In pursuing the civil lawsuit, the
victim, who usually hires a private attorney, controls all of the key decisions of the case, including
whether to accept a settlement offer or go to trial. The act that caused the harm is known as a “tort”
in the civil justice system. In the civil case, the victim is seeking to be compensated (usually with
money) for the damages that he or she suffered as a result of defendant’s tort.

The amount of evidence needed to win in most civil cases (or what is known as the burden of proof)
is a “preponderance of evidence.” This burden of proof essentially means that one side’s evidence
must be more persuasive than the other; this is far lower than the burden necessary in a criminal
case. Statutes, known as “statutes of limitation,” set time limits on how long you have to file a civil
suit following the harm you suffer. These time limits vary from state to state. If a lawsuit is filed after
expiration of the statute of limitations it will be dismissed as time-barred.

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Explain the characteristics of a legal right. 10

Characteristics of Legal Rights:

1) Legal rights exist only in society. These are the products of social living exercised by the
people for their development and hence for the development of society and cannot be
exercised against the society.
2) They are the claims of the individuals for their development in society and recognized by as
a common claims of all the people.
3) Legal rights are considered as the rational and moral claims that people makes in their
society and they are available equally to all the people.
4) The concept and contents of the legal rights changes with the passage of time and they are
not absolute in nature and keeps on changing.
5) They always have limitations which are essential for maintaining public health, security,
order and morality.
6) It is the duty of a state to protect the rights of the people and they need enforcement and
can really be used by the people.
7) Legal rights exist only in society. These are the products of social living. They cannot be
exercised against the society. They are to be exercised by the people for their development
and hence for the development of society.
8) They are claims of the individuals for their development in society. They are recognized by
society as common claims of all the people.
9) They are rational and moral claims that people make in their society.
10) They are equally available to all the people.
11) The concept and contents of rights keep on changing with the passage of time.
12) They are not absolute. These always bear limitations deemed essential for maintaining
public health, security, order, and morality.
13) They should be utilized with some duties.
14) They need enforcement and only then these can be really used by the people. It is the duty
of a state to protect the rights of the people.
15) The person of inherence: or the person in whom the right inheres or resides. He is the owner
of the right, the subject of the right or the person entitled.
16) The person of incidence: or the person on whom the corresponding duty is imposed. He is
the subject of the duty.
17) The content of the right: or the act or omission which the duty-bound person ought to do in
favour of the person entitled to the right.
18) The object of the right: or the thing which is the subject matter of the right, and
19) The title of the right: or the source of the right.

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Explain the idea of ownership and make difference between sole ownership and co-ownership. 10

Meaning & Definition

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

According to Austin, ownership refers to “a right indefinite in point of user, unrestricted in point of
disposition and unlimited in point of duration.” Concurring with Austin’s view, Holland defines
ownership as the right of absolute control over an object. According to him, ownership is an
aggregate of all rights pertaining to the possession, enjoyment and disposition of an object.
According to Salmond, “ownership, in its most comprehensive signification, denotes the relation
between a people and right that is vested in him.”

One of the subject matters of ownership is material objects. Salmond is of the view that the real
subject matter of ownership is rights. This particular view of Salmond is supported by the common
law system. However, it has also received some amount of criticism. It has been argued that law
generally recognizes ownership of land and chattels and not of any right. A person is said to have
certain rights and not own rights. The subject-matter of ownership is essentially determined by the
legal system of a state. There are certain objects which, by their very nature, are incapable of being
owned such as jungles, air, water, etc. However, the legal system of a country may recognize the
ownership of such objects thereby making them a subject matter of ownership.

Essentials of Ownership

Upon analysing the various definitions of ownership, the following essentials of ownership can be
derived: Indefinite point of user- The owner of a property has the liberty to use it. Others have the
duty to not to use it or to not to interfere with the owner’s right to use it. Unrestricted point of
disposition- The owner has the right to dispose of the property at his own will. A person needs to
have the ownership of a thing in order to transfer that ownership to someone else. Mere possession
does not give the power to dispose of the ownership.

Right to possess- The owner has the right to possess the thing which he owns.

Right to exhaust- If the nature of the thing which is owned is such that it can be exhausted then the
owner has the right to exhaust it at his own will.

Residuary character- The owner may part with several rights with regards to the thing he owns. This
does not take away the ownership from him.

Right to destroy or alienate- An owner has the right to destroy or alienate the thing that he owns.

Difference between sole ownership and co-ownership

When ownership is vested in a single person, it is called sole ownership. When the right is vested in
more than one person jointly, it is co-ownership but this does not imply that they are separate
owners of a share each. The right is an undivided unity which is vested at the same time in more
than one person. The right is capable of separation by partition.

Ownership may be either sole or duplicate. When it is exclusively vested in one person it is called
sole ownership. When it is jointly held by two or more persons at the same time, it is called duplicate
or co-ownership.
The chief instances of duplicate ownership are;

i. Co-ownership;
ii. Trust and beneficial ownership;
iii. Legal and equitable ownership;
iv. Vested and contingent ownership.

Co-ownership that is to say, ownership shared by several persons with equal or co-ordinate results
may be of two kinds, namely:-

a) Joint ownership, and

b) Ownership in-common.

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Explain the theory of penal liability. 10

Penal liability -

The theory of penal liability is concerned with the punishment of wrong. There are different kinds of
punishment, Deterrent, preventive, retributive, reformative etc. A penal liability can arise either
from a criminal or a civil wrong. There are three aspects of penal liability those are the conditions,
incidence, and measure of a liability. As regards the conditions of penal liability, it is expressed in the
maxim "actus non facit reum nisi mens sit rea" This means that the Act does not constitute guilt
unless it is done with guilty intention. Two things are required to be considered in this connection
and those are the act and the mens rea requires the consideration of imitation and negligence. The
act is called the material condition of penal liability and the mens rea is called the formal condition
of penal liability. The Maxim actus non facit reum, nisi mens sit rea (the act alone does not amount
to guilt, it must be accompanied by a guilty mind) is considered to be the condition of penal liability.
Thus, there are two conditions of penal liability:

1. Act.
2. Guilty mind or mens rea.

Austin defines act as a ‘movement of the will'. It is bodily movement caused by volition, a volition
being a desire for a bodily movement which is immediately followed by such movement provided
the bodily member is in a normal condition. The view of Holmes is that an act is always a voluntary
muscular contraction and nothing else. Thus, according to both the jurists an act is a willed
movement of the body.

Salmond takes act in a wider sense. He says: ‘We mean by it (act) any event which is subject to the
control of human will'. Salmond's use of the word ‘event' is of great significance. Even is not an act in
the strict sense nor is movement, but Salmond by act means those events which are subject to the
control of human will.

An act consists of three stages:

a. Its origin in some mental or bodily activity or passivity of the doer.

b. Its circumstances
c. Its consequences.

For example, if we take theft, it has five ingredients:

 1. Dishonest intention to take property.
2. The property must be movable property.
3. It should be taken out of the possession of another person.
4. It should be taken without the consent of the person.
5. There must be some moving of the property in order to accomplish the taking of it.

If we examine the ingredients, in the light of the above definition, we can say that it is an act
according to the definition. Leaving the first ingredient which is the second condition mens rea, if we
arrange the other ingredients in the light of the definition, intention to take the property is a mental
activity where the act originates. The circumstances are the property must be movable (ingredient
2);

it should be taken without the consent of that person (ingredient 4); there must be some moving of
the property in order to accomplish the taking of it (ingredient 5).

A theft would take place when all the ingredients are complete. When we use the word ‘act' as
condition of penal liability, it is used in its wider sense, and not in its limited sense as the movement
of the body only. Therefore, the definition given by Salmond is more accurate than the definition of
Austin and Holland.

The law prescribes as to under what circumstances and consequences an act shall be punishable or,
in other words, a person committing the act shall be under penal liability. The circumstances so
prescribed are relevant in determining whether a particular act (wrong) has taken place or not. A
person is liable only for his own acts and not for the acts done by others, or the events which are
independent of human activity.

The wrongful acts are divided into two classes:

1. Acts which causes some harm, and it is only on this ground that they are considered wrong.
2. Acts which are considered as wrong due to their mischievous tendencies. In these acts,
proof of actual harm is not necessary for liability.

Damage and liability

In the first class of the wrongful acts, no cause of action arises without some actual damage but in
the second class of acts, the proof of the damage is not necessary, the act alone makes the doer
liable. Generally, though not necessarily, the civil liability arises on the actual damage. But as crime is
a wrong against the society in general, so not only the act but the mischievous tendencies also are
considered wrongful and they are punishable.

Therefore, in criminal law attempt and in some cases, preparation also subjects a person to criminal
liability. In the first class of cases, actual damage does not include every kind of damage. A damage
though caused by an act of a man, is not always wrongful. Damnum sine injuria (a damage without
injury or wrongful act) does not make a person liable.

Mens Rea

Salmond's view: Mens rea means guilty mind. It is the second condition of penal liability. Mens rea is
defined as ‘the mental element necessary to constitute criminal liability'. In making a person
criminally liable, an enquiry ‘into his mental attitude is made Criminal intention, malice, negligence,
heedlessness, and rashness, etc. all are included in mens rea. Salmond says that mens rea included
only two distinct mental attitudes of the doer towards the deed:

a. Intention
b. Recklessness.

It means that a man is liable only for those wrongful acts which he does either willfully or recklessly.
Sometimes, inadvertent negligence is also punishable. Therefore, unless an act is done with any of
these three mental attitudes, the doer is not liable.

External conduct as the basis of the liability

Different legal systems have recognised, in different ways, this mens rea as the condition of penal
liability. There are degrees of mens rea and in some cases, the punishment is determined on the
basis of the degree of mens rea. In German law, theoretically, various forms of mens rea are
recognised and they are distinguished from each other. Historically, mens rea has its origin in the
idea of blameworthiness of the wrongdoer for the wrongful act.

But as the aim of the law is to serve more an external purpose than to enquire into the
blameworthiness, the mens rea is determined, more or less, on the basis of external conduct.
Therefore, the act is judged not from the mind of the wrongdoer but the mind of the wrongdoer is
judged from the act. The law presumes that every man is of the average understanding and judges
his act from that standard.

Intention
Intention is defined as the purpose or design with which an act is done. It is the foreknowledge of
the act, coupled with the desire of it, such foreknowledge and desire being the cause of the act, in as
much as they fulfill themselves through the operation of the will. An act is intentional if, and so far as
it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by
which it is accompanied.

Intention and motive

Though intention and motive are very close to each other, they are not the same. Motive is called
the ‘ulterior intent'. It is seldom that a man commits a wrongful act for its own sake. The wrongdoer
has some end in his mind, which he tries to achieve through his wrongful act.

Malice

Sometimes, malice is also used in law to indicate a similar meaning. It denotes various things.
Sometimes, it is used to indicate a wrongful intention, and sometimes, it means ‘motive'. Paton says
that malice is a most unfortunate term and it has many different meanings in English law:

1. In murder, it merely means that there is present one of the various forms of mens rea
necessary to constitute the crime.

2. In certain statutory offences, it means that there must be either an intention to cause results
of the particular kind prohibited by the statute, or at least a recklessness which cares not
whether the prohibited consequence occurs or not.

3. Sometimes, the word is otiose, a pleading relic, as in the allegation that the defendant
maliciously defamed the plaintiff, since even the proof that there was no malice is not a
 defence.

4. Sometimes, the word means spite or actual ill will or other improper motive, for example,
malice in this sense may be proved to rebut a defence or qualified privilege in defamation.

5. Sometimes, as in the phrase malitia supplet aetatem, it means that the act was done with
the knowledge of its nature.

Negligence
Negligence is the second form of the mens rea. The offences in which mens rea is a necessary
element, the wrongful intention or negligence will have to be proved on the part of the person who
committed the wrongful act to make him liable. Intention and negligence both are mental attitudes
which a person has towards the consequences of his act. When a person does an act foreseeing and
desiring the consequences, he is said to have the intention to do the act.
----------------------------------- ---------------------------- ----------------------------------------------------------------

Write a note on causation. 6

Causation is the “causal relationship between the defendant’s conduct and the result”. In a criminal
activity, there are always these three elements namely – actus reus, mens rea and causation.
Despite the presence of both actus reus and mens rea, a criminal act can be unsustainable in the
eyes of law because of the absence/lack of causation. For example, A intending to murder B puts a
bomb in his car, B dies because of the car accident with someone else but not because of that bomb.
Now in such a situation, A can’t be held liable despite having that mental element and the act. The
simple reason is that A’s action didn’t cause B’s death and therefore, A will only be held liable for an
attempt to murder. Therefore, causation is an indispensable element of criminal law.

The doctrine of causation is based on the simple premise that ‘a man can only be held liable for the
consequence of his actions’. The entire doctrine is effectively based on the interpretation of a single
word: ‘consequence’. It is best illustrated by Illustration (b) of Section 299 of The Indian Penal Code,
1860. “A knows Z to be behind a bush. B does not know it. A, intending to cause or knowing it to be
likely to cause Z’s death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no
offence, but A has committed the offence of culpable homicide.” In this illustration, causation is
used to establish the link between actus reus and mens rea.

Establishing causation

Where establishing causation is required to establish legal liability, it usually involves a two-stage
inquiry, firstly establishing 'factual' causation, then legal (or proximate) causation.[1] Factual
causation must be established before inquiring into legal or proximate causation.

Factual Causation

It involves a layman inquiry to be made to find out the cause of death. It is often known as ‘but for’
causation (Causa sine qua non). The question one needs to ask is whether “but for” the accused act,
the arm would have occurred. For instance, in R v White, [1] the accused mixed potassium cyanide in
his mother’s drink. The mother died and the accused was charged with murder. But later on, it was
found that the deceased only drank a small amount and her death was of natural causes and was
only coincidental to the defendant’s act. The accused was only found guilty of attempted murder.
However, a lot of times, it is not easy to find factual causation or any direct cause of death as the
factual causation is extremely broad and sometimes the defendant can be found guilty even if the
harm is far remote from his actions. This leads to Legal Causation which can limit the potentiality of
broad liability.

Legal Causation

It is a more narrow and subjective concept as compared to factual causation. Not every cause in fact
can be said to be the cause in law. It is more of an inquiry made by a lawman rather than a layman.
The isolation of a legal cause from amongst a possible multitude of factual causes is a process
involving subjective common sense rather than objectively measurable criteria. However, while
attempting to assign criminal liability in this manner, one must seek some form of abnormality or
culpable behavior.

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Define negligence and state the subjective and objective theories of negligence. 10

Meaning and definition of negligence:

As noted above, negligence has two meanings in law of torts:

Negligence as state of mind: Negligence is a mode of committing certain torts Eg “negligently vor
carelessly committing trespass, nuisance or defamation. This is subjective meaning of negligence
advocates by the Austin, Salmond, and Winfield.

Negligence as a type of conduct: Negligence means a conduct and not a state of mind – A conduct,
which involves the risk of causing damage. This was the objective meaning of negligence which
treats negligence as a separate or specific tort.

Theories of negligence under the law of torts

Negligence is defined as a civil tort that occurs when a person breaches his duty of care which he
owed towards his neighbor (neighbor here means anyone who can get affected by his action) and
due to which the other person suffers some legal injury. In simple language, negligence is a person’s
carelessness which ultimately results in the injury or some harm to another. It is important to note
that the injury must be a legal injury.

There are two theories of negligence. These are

1. Subjective theory of negligence

2. Objective theory of negligence

Subjective Theory of Negligence

According to Austin, want of advertence, which one’s duty would naturally suggest is the
fundamental or radical idea in the conception of negligence. Thus negligence results from
inadvertence or failure to apply one’s mind to the nature and consequences of one’s wrongful act.
In this sense, the negligent act is the opposite of an intentional act.

Austin’s view has been criticized that negligence may be inadvertent or wilful. One may cause harm,
not necessarily by intending it but because of thoughtlessness towards the consequences of the
dangerous act or because of a foolish assumption that the evil consequences will not follow. This is
inadvertent negligence. This is what Austin meant and is the commonest form of negligence. But
there is another form of negligence where there is no thoughtlessness or inadvertence. If a person
drives a car at a greater speed in a crowded street, he may be fully conscious of the risk involved and
the danger to which others are exposed, but yet if harm results to somebody it cannot be said that
he intended it, he may not be guilty of murder but only negligent homicide.

According to Salmond, negligence is the mental attitude of undue indifference with respect to one’s
conduct and its consequences. A careless person is one who does not care. Though negligence is
not the something as thoughtlessness or inadvertence, it is basically an attitude of indifference. As
Salmond points out the essence of negligence is not inadvertence which may or may not be due to
carelessness, but carelessness which may or may not result in advertence.

Acts are sometimes classified into intentional and negligent acts. An intentional act is one whose
consequences are foreseen and desired by the doer. Not doing something intentionally is called
forbearance. So, forbearance is intentional negative act. Omission, on the other hand, is not doing
something without applying the mind to it. Hence, omission is unintentional negative act, while
forbearance is also a product of intention, omission is the outcome of negligence. If intention is a
state of mind, the absence of intention or negligence is also a state of mind.

The merit contained in the subjective theory is that in certain situations any conclusion as to
whether a man had been negligent will depend partly on his state of mind. In criminal law a sharp
distinction is drawn between intentionally causing harm and negligently causing harm, and in
deciding whether the accused is guilty of either, one must have regard to his knowledge, aims,
motives and so on. Cases of apparent negligence may, upon examination of the party’s state of
mind, turn out to be cases of wrongful intention. A trap door may be left unbolted in order that
one’s enemy may fall through it and so die. Poison may be left unlabelled, with intent that someone
may drink it by mistake.

A ship’s captain may wilfully cast away his ship by the neglect of the ordinary rules of good
seamanship. A father who neglects to provide medicine for his sick child may be guilty of wilful
murder, rather than a mere negligence. In none of these cases, can we distinguish between
intentional and negligent wrongdoing, except by looking into the mind of the offender and observing
his subjective attitude towards his act and its consequences. Externally and objectively, the two
classes of offences are indistinguishable.

The subjective theory then has the merit of making clear the distinction between intention and
negligence. The wilful wrongdoer desires the harmful consequences. The negligent wrongdoer does
not desire the harmful consequences. The wilful wrongdoer is liable because he desires to do the
harm, the negligent wrongdoer may be liable because he does not sufficiently desire to avoid it.

Objective Theory of Negligence:

According to some jurists, negligence is not a state of mind but a particular kind of conduct. In this
view, negligence is due to failure to take reasonable precautions.

According to Clark and Lindsell, negligence consists in the omission to take such care as under the
circumstances it is the legal duty of a person to take.

According Pollock, negligence is the opposite of deligence and no one describes deligence as a state
of mind.

According to objective theory, negligence is not a subjective but an objective fact. It is not a
particular state of mind or form of mens rea at all, but a particular kind of conduct. Negligence is a
breach of the duty of taking care. To take care means take precautions against harmful results of
one’s actions. Negligence consists in pursuing a course of conduct that an ordinary prudent man
would not. To drive at night without light is negligence because carrying light is an act of a prudent
man. To take care, therefore, is no more a mental attitude or state of mind.

This view (objective theory) receives strong support from the law of torts where it is clearly settled
that negligence means a failure to come up to the objective standard of the conduct of a reasonable
man.

Salmond criticized the objective theory on the following grounds:

i) Total identification of negligence with failure to take care is the product of incomplete analysis.

ii) Failure to take care need not always be due to negligence. Failure to take precautions may be
accidental or wilful.

iii) By merely looking at the conduct of a man, it is not possible to assert whether the lack of care is
negligent, intentional or accidental.

iv) One can identify of the negligent act only by looking into the mental attitude of the man that
produced the conduct in question.

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Write a note on Damnun Sine Injuria. 6

Damnum Sine Injuria

Damnum sine Injuria is a legal maxim which refers to as damages without injury or damages in which
there is no infringement of any legal right which are vested with the plaintiff. Since no legal right has
been infringed so no action lies in the cases of damnum sine injuria. The general principle on which
this maxim is based upon is that if one exercises his common or ordinary rights, within reasonable
limits, and without infringing other’s legal right; such an exercise does not give rise to an action in
tort in favour of that other person. Damages can be in any form either in the form of any substantial
harm or loss suffered from respect to the money, comfort, health, etc.

It is an implied principle in law that there are no remedies for any moral wrongs, unless and until any
legal right has been infringed. Even if the act or omission such done by the defendant was
intentional, the Court will not grant any damages to the plaintiff. As was cited in the case of Mayor &
Co. of Bradford vs. Pickles (1895) in which the corporation of Bradford filed a suit against the
defendant alleging that the act of defendant by digging a well in the adjoining land owned by the
defendant has cut the underground supply of water in the corporation’s well hence causing them
monetary losses since there was no adequate supply of water to discharge for the people living
under the jurisdiction of the corporation. It was held that the defendant is not liable since they had
not violated any legal right of the plaintiff.

In another case of Gloucester Grammar School (1410) in which a schoolmaster, set-up a rival school
to that of the plaintiff and since because of the competition the plaintiff had to reduce their fees
from 40 pence to 12 pence per quarter. Thus claimed for compensation from the defendants for the
losses suffered. It was held that the plaintiff had no remedy for the losses suffered, since the act
though morally wrong has not violated any legal right of the plaintiff.

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42. Discuss the possession in law with decided cases.