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WHAT IS ADMINISTRATION OF JUSTICE? EXPLAIN ITS KINDS.

DISTINGUISHBETWEENCIVILANDCRIMINALJUSTICE.
INTRODUCTION:Administration of Justice: According to Salmond :
Theadministrationofjusticeimpliesthemaintenanceofrightwithina
political community by civilized substitute for the primitive practice of
privatevengeanceandviolentselfhelp.Thishasbeencriticizedonthe
ground that it is not the force of the state alone that secures the
obedience of law. There are a number of other factors such as the
socialsanctions,habitandconveniencewhichhelpintheobedienceof
law. In civilized societies, obedience to law becomes a matter of habit
andinveryrarecasestheforceofthestateisusedtosecureit
According to Austin: Law is the aggregate of rule set by men as
politicallysuperior,orsovereign,tomenaspoliticallysubject.Itmeans

law is command of sovereign. In his definition Command, duty and

sanctionarethethreeelementsoflaw.
Thefundamentaldifferencebetweenthedefinitionsofthetwojuristsis
that whereas in the definition of Austin, the central point of law is
sovereign, in the definition of Salmond, the central point is Court. In
fact,boththedefinitionsarenotperfectandpresenttwoaspectsoflaw.
Salmond : Points out that men donot have one reason in them and
eachismovedbyhisowninterestandpassions.Theonlyalternativeis
onepowerovermen.Menisbynatureafightinganimalandforceisthe
ultimaratioofallmankind.AsHobbesputsitwithoutacommonpower
tokeepthemallinawe,itisnotpossibleforindividualsoliveinsociety.
Without it injustice is unchecked and triumphant and the life of the
peopleissolitary,poor,nasty,brutishandshort.Salmondsayshowever
orderly a society may be, the element of force is always present and
operative.Itmaybecomelatentbutstillexists.
KINDSOFADMINISTRATIONOFJUSTICE
Theadministrativeofjusticemaybedividedintotwoparts:
1) Civil.
2) Criminal.
1. Administration of Civil Justice: The wrongs which are the subject
matterofcivilproceedingsarecalledcivilwrongs.Therightsenforced
bycivilproceedingsareoftwokinds(1)Primaryand(2)Sanctioningor
remedialrights.Primaryrightarethoserightswhichexistsassuchand
donothavetheirsourceinsomewrong.Sanctioningorremedialrights
are those which come in to existence after the violation of the primary
rights.Theobjectoftheciviladministrationofjusticeistoascertainthe
rights of the parties and the party who suffers from the breach of such
rights is to be helped by way of paying damages or getting injunction,
restitutionandspecificperformanceofcontractetc.
2.AdministrationofCriminalJustice:Theobjectofthecriminaljustice
istodeterminethecrimeofapersonwhoischargedwiththedoingof
anoffence.Thecriminalcourtafterprovingthattheoffenderisguiltyof
the offence charged awards him the punishment of fine, imprisonment
asprescribedbycriminallaw.Aconvictedpersonisawardedphysical
pain. Thus the main purpose of the criminal justice is to punish the
wrongdoer.
DIFFERENCE BETWEEN CIVIL AND CRIMINAL ADMINISTRATION
OFJUSTICE
CivilAdministrationofJustice
In the civil case the suit is Filed in the civil court. Criminal
AdministrationofJustice
InthecriminalcasestheproceedingsIsfiledinthecriminalcourt.
The main remedy in civil Cases is damages. The main remedy in
criminalcasesistoPunishtheoffender.
In the civil cases, the court Follows the procedure Prescribed in Civil
Procedure Code. In the criminal cases, the court follows the
procedurelaiddownincriminalProcedureCode.
In civil cases the action is taken By the injured party and the Suit is
established by himself By giving evidence. In criminal cases the
proceedingistakenbythestateandtheinjuredpartyiscalledoutasa
witnessbythestate.

2WhatisLaw?Discuss.Definitiongivenbyvariousjurists?

INTRODUCTION:Itiseasiertoexplainthantodefineit.Itmeansthat
thingsareeasytoexplainthantodefineit.Definitionisverynecessary
forthestudyofthesubject,becausethebeginningandinonesenseit
endsisalsoitsdefinition.TogiveadefinitionofLawiscomparativelya
hardtaskduetomanyreasons:
1. InHindu:Dharma
2. InFrance:Droit
3. InRome:Jur.
4. InMuslim:Hukma
Alltheseabovewordsconveysdifferentmeaning.Andwecansaythata
definition which contain all the above meaning and all elements would
be a good definition of law. Endlly definition given by every person is
alwaysdifferent.Becausedefinitiongivenbyalawyeraphilosopher,a
studentoralecturerisalwaysdifferent.Adefinitionwhichdoesntcover
alltheseelementswouldbeaninperfectdefinition.
DEFINITIONOFLAW:Theword,Lawhasbeentakenfromthelatin
wordwhichmeansThebodyofRulesvariousscholarshasattempted
todefinethistermaccordingtotheirownprospective.Someofthemare
asunder:
According to Roman Scholars: The law is concerned with the
parameterswhichisrightorwrong,fairandunfair.
ULPIAN: The famous Roman scholars and a Juries, he defined the
term,Lawasstandardofwhatisjustandunjust.
AccordingtoSalmond:Thelawisthebodyofprincipalsrecognisedand
appliedbythestateintheadministrationofjustice.
According to Positivist Definition : They are known as a modern
thinkers and they propounded a new school in the Law namely,
Analytical School. This school is also known as a scientific school.
Benthem, Austin and Kelson define the term of Law in the following
manners:
1. AUSTIN: Austin is the father of English Jurisprudence and
according to him, Law is the command of sovereign There are three
elementsoflawaccordingtoAustin:
a) Command)
b) Duty)=LAW
c) Sanction)
According to him every law have a command and due to this
commandwehavethedutytoobeythiscommandandifwedontobey
thisdutythenthereisasanction.
2. As per Benthem: The law is the violaion of some declarations by
the political head with utiity ensuring maximum happiness of he
maximumpeopleinthesociety.Benthmconceptoflawrevolvesaround
individual utilitarianism and its concern with the theory of pain and
pleasure,whichmeansthatthepurposeofLawtoreducethepainand
harmsandpleasureinthesociety.
3. AccordingtoKelson:Thelawisdepsycholigicallycommand.Heis
concern with those commands which purely rest upon the formal
expressionoflaw.
3. Sociological Definition: The sociological approach is not a single
approach but it includes a number of thoughts, but all these thought
relatedtosociety,thatiswhyheadingisgiventhemtosociological.And
weshalldiscusssomeoftruedefinitions:
DUGUID : According to him the law is a set of sosme formal norms
aimingancreationofsoliditaryinsociety.

IHERING:AccordingtoIheringtheLawisaformofguaranteesofthe
conditions of life in society which are assured by the states power of
constraint.
EHRLICH:Ehrlichlaysdown,thatthelawconsistsofnormscoverings
sociallife.ButonlythelivingLawistheactuallaw.
ROSCUEPOUND : According to him Law is an instrument for
balancing,conflictorcompletinginterestofpeopleinthesociety.
REQUIREMENTSFORLAW
Thefollowingsaresomerequirementsforthedefinitionsoflaw:
i) BeforethelawthereisaState.
ii) BeforetheStatetheremustbeasociety.
iii) State&societydevelopalegalordertobefollowed.
iv) Andfinallylawalwayshasapurpose.
CONCLUSION:
Inendwecansaythatlawistheimportantandnecessarypartofthe
stateanddevelopingthehumanbeings.Lawgivesrightsanddutiesto
human beings. And law is the essential part of a State. Law is an
instrumentofsocialcontrolaswellassocialchange.

3DefineRightanddiscusstheessentialelementsoflegalright.OR
WhatisaLegalRight?Discussthecharacteristicsofalegalright.
INTRODUCTION: Right generally means an interest or facility or a
privilege or immunity or a freedom. In this way right for the purpose of
jurisprudenceiscalledlegalright.Austininhistheoryhasseparatedthe
subjectmatterofjurisprudencefrommoralityormateriality.Hegavethe
conceptofpositivelaw.Soherealsorightmeanspositivelawrightonly,
which is term of legal right. Legal right is recognised by law. It is
different from moral right. Moral right if violated is called moral wrong.
The violatin of natural right is called natural wrong. But these wrongs
arenotremedialunderlawwhileifalegalrightisviolatedthenitwillbe
legal wrong which is remedial under law. The different jurists have
definedlegalrightindifferentways:AccordingtoAustin:Rightisa
faculty which resides in a determinate party or parties by virtue of a
givenlawandwhichavailsagainstapartyorpartiesotherthantheparty
or parties in whom it resides. According to Salmond : Right is an
interestrecognisedandprotectedbytheruleofright.Hereruleofright
means rule of law or law of country. When an interest of a person is
protected by the rule of law then it is called right. Salmond definition
involves two points, firstly that right is an interest and secondly it is
protectedbyruleofright.Itmeansthatitrelatestohis(person)interest
i.e.,lifeliberty,heathandreputationetc.Greyhascriticisedtheinterest
theorypropoundedbySalmond,IheringandHeckandhehassupported
theviewthatrightisnotaninterestbutthatmeansbywhichtheinterest
issecured.AccordingtoHolland,rightisasacapacityresidinginone
manofcontrolling,withtheassentandassistanceofthestatetheaction
ofothers.
AccordingtoPaton:Thatlegalrightisthatitshouldbeenforceableby
the legal process of the state. He however says that there are three
exceptionstothisrule:
1. Itisnotnecessarythatthestateshouldalwaysnecessarilyenforce
allthelegalrights.
2. Therearecertainrightswhichrecognisedbylawbutnotenforced
by it for example : In a time barred debt, the right of the creditor to
recoverthedebtisanimperfectright

3. Therearecertainlawswhichdonotconferrightofenforcementto
thecourts,forexample:InternationalCourtofJusticehasnopowerto
compelenforcementofitsdecreesunderInternationalLaw.
THEORISOFRIGHT:Therearetwotheoriesofright:
1. WILL THEORY : This theory is based upon the will of human
beings. It says that a right reflects the inner will of a human being.
Austin, Holland, Halmes and Dov recognised this theory of right.
According to them a person wants o remain in the world freely and
accordingtohisownchoicebecauseamanisbornfree.
2. Interest Theory: This theory says that interest is the base of the
right. It is only interest which is recognised by law. This theory reflects
the external nature of the human beings. Supporter of this theory say
that there are many interests in the world. These interest which are
protectedandrecognisedbylawarecalledright.
ELEMENTSOFLEGALRIGHT:FollowingaretheelementsofRights
:
1. Subject:heremeansapersonwhohasright.Sotheremustbea
personforrights
2. Act of Forbearance : Right means some standard of action
permittedbylaw.Inarighteitheranactisdoneoranactisforbidden.
Thisisalsocalledascontentofright.
3. Object:Theremustbeaobjectuponwhichtherightisexercised.
Mainlytherearethreeessentialelementsofrighte.g.Livesinahouse.
Here:(i)Ahastherighttoliveinthehouse.(ii)Aissubject,houseis
objectand(iii)Hislivinginthehouseisactcontent.Butsomewriters
givesomemoreelementsofright.
4. Correlativeduty:Forrighttheremustbeacorrelativeduty.Inthe
above example A has the right to live in the house but other persons
have correlative duty not to disturb him. Almost all jurists agree on the
point because one cannot exists without the other. Here Austin is not
agreetothisHesaysthatthedutymaybedividedintotwokindsi.e.(1)
Absoluteand(ii)Relative.
5. Title:Salmondgivesonemoreelementofrightsintheformoftitle.
Hesaysthatarighthasgotalsoatitle.Titlemaybeintheformofthe
ownerorcoownerormortgagerorleaserorbuyeretc.
ILLUSTRATION:If,AbuysapieceoflandfromB.Aisthesubjector
owneroftherightsorequired.Thepersonboundbythecorelativeduty
ispersonsingeneralbecausearightofthiskindavailsagainsttheworld
at large. The right consists in noninterference with the purchasers
exclusiveuseoftheland.
KINDSOFRIGHTS:Thefollowingarethekindsofrights:
1. Primaryrightandsecondaryright:Primaryrightisanindependent
rightwhilesecondaryrightmeansdependentright.Theyarealsocalled
asprincipalrightandhelpingrightorremedialright.ILLUSTRATION:A
hasrightofreputationwhichishisprimaryandindependentright.Ifany
persondefamesAthenAhastherightofdamagesagainstthedefamer.
Thisrightofdamagesiscalledsecondaryrightorremedialright.
2. Positive and Negative Right: Positive right is linked with negative
andnegativerightislinkedwithduty.Positiverightpermitstodoanact
whilenegativerightprohibitdoinganact.
ILLUSTRATION: A has the right of reputation. This is his positive
right and any person should not defame him. The defaming his
reputationcallednegativeright.
3. Right Rem and Personam:RightinRemmeansrightagainstthe
whole world while right in persosnam means right against a definite

person.
ILLUSTRATION:Ahasnottobeharmedbyanyperson.Thisisrightin
rem.Ontheotherhand,AhasenteredintoacontractwithBandB
hasbroken+vecontract.AcanenforcethisrightagainstB.Thisis
knownasrightinpersonam.
1. LEGALANDEUITABLERIGHT(NATUALJUSTICE):Thedivision
ofrighthasitsorigininEngland.LegalightisrecognisedbyLaw.While
equitablerighthasbeenrecognisedbynaturaljustice.InEnglandthere
weretwotypesofcourts:(i)Legalcourts(ii)Chancerycourts
Chancery Courts recognised the conquerable rights on the basis of
justice,equityandgoodconscience.
4. Vested&ContingentsRight:Theserightsisofpermanentnature
that depends upon the happening of an uncertain event. Thus
contingents right becomes full right only when such uncertain events
happenaccordingtothecondition.
5. Proprietary and Personal Right: Proprietary rights which are
concerned with property. A person possessing any property has the
proprietaryrightoverit,andpersonalrightmeanstherightrelatedwitha
personorabody.Everypersonhasastatus.Heshouldnotbeinjuredor
defamed. If any person injures or defames another person then the
wrongdoerinfringesthepersonalrightofaperson.
6. PerfectorImperfectRight:Theserightswhichareenforceableby
lawareperfectandwhichlawdoesnotenforceableareimperfectrights.
7. RightofRepropiaandRightinrealena:Rightinrepropiameans
therightinonesownthingwhereasrightinrealienameanstherightin
thethingsofothers.
4 Law is the command of sovereign comment. Critically examine the
mainfeaturesofAnalyticalSchool?OR
DiscusstheessentialcharacteristicsoftheAnalyticalSchool?
INTRODUCTION : The main features/essential characteristics of
Analytical School of Jurisprudence are as under: The jurists of
analytical school consider that the most important aspect of law is its
relation to the State Law is treated as an imperative or command
emanatingfromthestate.Forthisveryreasonthisschoolisknownas
theImperativeschool.
Theexponentsofthisschoolareconcernedneitherwiththe
past nor with the future of law but with law as it exists, i.e. as it is
(positus).For this reason this school is termed the positive school. Its
founder is John Austin who was the professor of jurisprudence in the
UniversityofLondon.
HeisalsoconsideredasthefatherofEnglishjurisprudence.Hestudied
the Roman Law in Germany. There he was that Roman Law is very
systematic and scientific whereas English Law is not systematic and
scientific. So he tried to make English law in well manner. For this
purpose he wrote a book Province of English Jurisprudence. In this
bookhedifinedEnglishlawandmadeitinasystematicway.
Austin said that only positive law is the subject matter of
jurisprudence. He separated both the morals and the religion from the
definition of the law. Prior to Austin the law was based upon customs
and morals but Austin reduced all things from the definition of law. He
dividedlawintotwoparts:
(i) Lawproprietysocalled(II)Lawimproprietysocalled.
Itfurtherdividedintotwoparts:
(1) LawofGod(DivineLaw)(II)LawofMen(HumanLaw)

LawofGodisalsocalleddivinelaw.ItisalawsetbyGodforhuman
beings on earth. Men also make law of men is made by men, so it is
calledhumanLaw.Thislawmakesarelationshipbetweenpersonsand
theLaw.Thislawisimposeduponpersonsandismadebypersons.
Humanlawisfurtherdividedintotwoparts:
(I) PositiveLaw(II)PositiveMoralLaw
PositiveLawismainsubjectofjurisprudence.Thisclassificationcanbe
seenasunder:

LAW

(A)Lawproprietysocalled(b)Lawimproprietyso
called
A.1)LawofGodA.2)LawofMen

A.2.i)PositiveLawA.2.ii)PositivemoralLaw

Lawofanalogy

lawbyMetaphor
Law impropriety so called: There are certain laws, which are called
improprietylawse.g.DivineLaw,MoralLawandreligiousLaw.Buthis
lawisnotthesubjectofjurisprudence.Thislawisconcernedonlywith
the administrations of jurisprudence. The law is the subject matter of
jurisprudence.
Analyticalschoolofjurisprudencedealswiththefollowingmatter:
(I) AnAnalysisoftheconceptionofcivillaw.
(II) Thestudyofvariousrelationsbetweencivillawandotherformsof
law.
(III) Aninquiryintothescientificarrangementoflaw.
(IV) Anaccountoflegalsourcesfromwhichthelawproceeds.
(V) Thestudyofthetheoryofliability.
(VI) Thestudyoftheconceptionoflegalrightsandduties.
(VII)Toinvestigatesuchlegalconceptsasproperty,contracts,persons,
actsandintentionetc.
DEFINITIONOFTHELAW
Austin has defined the law is hiss Command Theory. He says that,
Lawisthecommandofsovereign.Sovereignheremeansapolitically
superior body or a determinatepersonordeterminatebodyofpersons
likekingofcouncil.Thecommandofthesepersonsshallbethelawin
the country. This law must be obeyed by certain persons. If it is not
obeyedhentheorderofthesepersonsshallnotbelaw.Itmeansthere
must be politically inferior persons. If the command is disobeyed then
the political superior should have the power to punish, those persons
whohavedisobeyedthelaw.
CHARACTERISTICSOFCOMMANDTHEORY
From the above facts we find that the following characteristics of
AnalyticalSchool:
1. Sovereign(II)Command(III)Duty(IV)SanctionPower.
SOVEREIGN: Means the political superior person or a determinate
personorbodyofpersonorintelligentpersons.Thismaybecompared

withthekindortheheadofstateinmonarchysystemandparliamentin
democracysystem.
COMMAND: There must be some order of the Sovereign. This order
may be oral or written. The Sovereign which is followed by force, is
calledcommand.
DUTY:Thiscommandmustbefollowedbysomepersons,itmeansthe
political inferior persons who are under the control of Sovereign, are
underaDutytofollowtheorderoftheSovereign.
SANCTION: There must be sanction or the power of force behind the
command of Sovereign and it there is no force or sanction then such
command shall not be law. The sovereign must have power to punish
thosewhodonotobeythiscommand.Inthiswaytheabovementioned
things are essential then it will be the law. But Austin excluded some
commandsfromtheconceptofthelaw.Theseare:
(I) Explanatory Law : If there is a command for the explanation of
alreadyexistedlawcommandshallnotbethelaw.
(II) TheRepealLaw:Ithereisacommandfortherepealingofalready
existedlawthenthesecondcommandshallnotbelaw.
AUSTIN LAW (AUSINS METHOD) Austin adopted analytical method
whichexcludedalltypesofmoralsandreligionfromLaw.Hisschoolis
also called analytical school or imperative school. Imperative means
forcebehindlaw.
CRITICISMOFANALYICALSCHOOL
Various writers have criticised the command theory of Austin on the
followingground:
1. Customs ignored: Analytical school is based upon the law.
AccordingtoAustinthelawdoesnotincludecustomsbutweseethat
customs are a very important part of the society. There were customs
by which the society and later on state came into existence. In state
also customs played an important role in the administration of justice.
Even in the modern times the customs play an important role in the
formationoflaw.Sowecannotignorecustomsfromlaw.
2. Precedentsignored:Precedentmeansthedecisionsofthecourt,
which are also called as judge made laws. Judge made laws because
these laws were not the command of the Sovereign. These laws were
notenforceableatthattime,soheexcludedtheselawsfromhisconcept
ofthelaw.
3. Conventions Ignored:There are certain conventions or methods,
which are observed or followed by the coming generation. These
conventionsormethodslaterontaketheformoflaw.Thebecomelaw
afterwardsbytheirregularobservance.InEnglandthebaseofEnglish
Law is conventions, which is very popular in the World. So we cannot
ignore conventions. But Austin did not include conventions in his
conceptoflaw.
4. InternationalLawIgnored:Austindidnotincludeinternationallaw
inhislaw.AccordingtohislawthereisnoSovereignforenforcingthe
international law. But in modern days we cannot exclude international
law from the field of law because it plays an important role in
maintainingpeaceandsocietyatinternationallevel.Inotherwordsitis
alsoaformofmunicipallawofcivillaw.
5. CommandTheoryisnotsuitable:Itisnoteasytounderstandthe
Commands Theory for common persons. It is not necessary that all
should be enforceable or all common person should be considered as
law.Onlythosecommandswhicharerelatedwithlawandorder,should
be law. It is difficult to separate those commands from others by the

common people or persons. So this theory is not suitable in modern

times. It is also an artificial theory haveing no sense in the modern
world.
6. Only Power Is Not Necessary: According to the Command
Theory,lawcanbeimposedonlywiththehelpofpower,Butwehave
theresultofthetyrantsorforcedruleswhichwerethrownawaybythe
peopleofFrenchRevolution,ofPanamaeto.Lawcanbeenforcedeven
withoutpower,ittheyaresuitabletothesociety.
7. Moral Ignored: The Command Theory has also excluded morals
from the field of law. But we have observed that morals have also an
importantroleintheformationoflaw.Wecannotignoremoralsfromlaw
because laws are meant for the society and such laws must be
according to the feelings of society. The feelings of society are based
uponmorals.Sowecantignoremoralsfromthefieldoflaw.
CONCLUSON :In this way he theory of command has been criticised
andwhichisnotconsideredassuitableinthemoderntime.Butwealso
cantignorethecontributionofAustinforgivinghemeaningoflawina
systematic way. He give the concept of law in scientific manner. This
viewsbecamethebaseforthecomingwriters,juristsandphilosophers.
SowecansaythatAustincontributedalotinthefieldofjurisprudence.

5Defineanddistinguishlawandmorals.Uptowhatextentmoralshelp
inthedevelopmentoflaw.
Introduction: Play an important role in the development of law. In the
ancient society there was no difference between law and morals. The
Vedasandsuteraswhicharethemainancientsourcesoflawarebased
uponmorals.Inthewesternsocietyalsothepositionwasthesame.The
legal system of Greek was also based upon the doctrine of natural
rights,whichwasinfactfoundeduponmorals.SotheRomanlawalso
recognisedthedoctrineofnaturallaw,whichwasfoundeduponmorals.
Inthemiddleperiodalsomoralswerethebasisoflaw.Inthe17thand
18th centuries natural law theories become very popular which were
also based upon morals. However in modern times it was only Austin
who discarded morals from law. He said that law is a command of
sovereign. But after him there came the Historical School that
recognisedmoralsasthepartoflaw.
DIFFERENCEBETWEENLAWANDMORALS
WhentheAustindidnotgiveanyplacetomoralsinlawthentherecame
aquestionofthedifferencebetweenlawandmorals.Lateronthecourts
triedtomakedifferencebetweenlawandmorals.Inthemoderntimes
there is clear difference between law and morals. In every developed
and civilized society the following are the differences between morals
andlaws:
MORALSLAWS
1.Themoralsareconcernedwithindividualandarethelaiddownrules
forthemouldingofhischaracter.
2.Moralsaremainlyconcernedwiththeinternalconductofthenatureof
aperson.
3.Themoralsareanendinthemselves.
4.Theobservanceofmoralsisamatterofindividualsconscience.
5.Moralsareconsideredtobeuniversalinnatureandvalue. 1.The
lawsaremainlyconcernedwiththesocietyasawholeandlaydownthe
rulesforrelationshipofindividualwitheachotherandwiththestate.

2.Lawisconcernedwiththeexternalconductoftheindividuals.
3.Lawsaremeantbywhichtheevilsends.Thejusticeisachieved.
4Theobservanceoflawisconcernedwithdutytowardsthestate.
5Lawisconcernedonlywithaparticularstateandsocietywhichdiffer
fromplacetoplace&fromtimetotime.
RELATIONSHIPBETWEENLAW&MORALS
Intheancientsocietytherewasnodifferencebetweenlawsandmorals,
butinmoderntimesvarioustheoriesoflawseparatemoralsfromlaws
somanydifferencesaspointedoutabovecameintopicture.Inspiteof
thesedifferencesthereisaclearrelationshipbetweenlawandmorals.
Forthispurposeitcanbenoticedfromthefollowingthreepoints:
1. Morals as the basis of law: In the ancient society morals were the
basis of all laws. All the rules originate from the common sources i.e.
morals. The reason behind them was in the form of supernatural fear.
Thestatepickedupthoseruleswhichwerenecessaryforthesocietyof
thestate.
The state put its own sanctions behind their rules and enforced them
andtheseruleswerecalledlaws.Therulesforwhichthestatecouldnot
ensuretheirobservanceweeknownasmorals.Thuslawsandmorals
have common origin. We cannot totally separate law from morals.
Queen v/s Dudley: It was held that moral are the basis of law on the
ground of morality, it was not necessary to kill the boy for saving their
lives. One cannot take the law into ones own hands. The rule is that
nonehasthepower/righttotakeanotherslifetosavehisown.
2. Morals as the list of law: It has been argued that the law must
conformtomorals.Itmeansthelawmustbebaseduponmoralsandit
shouldnotbeagainstmorals.TheRomanlawwasbaseduponnatural
lawandChristianmoralsandprinciplessaythatanylawthatisagainst
morals is invalid. The natural law theories were enforcing which were
alsoaccordingtomorals.
Inthemoderntimesthelawswhicharenotinconformitywithmorals
arenotgoodlaws.Howeverinpracticetoagreatextentlawconforms
tomorals.Lawscannotdepartfrommoralsduetomanyreasons.The
conformity of law with morals is a very important factor even in the
moderntimes.
3.MoralsastheendofLaw:Sometimesmoralsareconsideredasthe
endflaw.Justiceinitspopularsenseisbaseduponmorals.Theword
usedforlawconveysanideaofjusticeandmoralsinthesameareaof
law.Sociologicalschoolsaysthatlawalwayshasapurpose.Lawisa
meanstogettheend.Thisaimoflawistosecuresocialtestoflaw.This
can be done properly in the contest of socially recognize values which
arecloselyrelatedtomorals.Thusultimatelymoralsbecometheendof
law. In India the legal system is engaged from the personal laws and
local customs. In addition to this there are certain other factors like
public opinion, political, ethical, social and economical ideas which are
directly or indirectly under the influence law. CONCUSION: So morals
alsohaveinfluencetoagreatextentinthedevelopmentoflaw.Morals
also check the arbitrary powers of the legislature. All human conduct
and social relations cannot be regulated and governed only by law. A
considerablenumberofthemareregulatedbymorals.Thuswecansay
thatthemoralsaretheveryimportantfactorinthedevelopmentoflaw.
Moralsarebasisoflaw.
6ProfessorHartclaimsofmakeafreshstartinlegaltheory.Discuss.

INTRODUCTION: Hart is one of the great jurists of that time. He

belongstoanalyticalschool.HLAHartwasthePrincipalandProfessor
in Brasenose College Oxford His theory about the law named as
concept of Law. He talks about the realty. His theory mainly based on
primary and secondary rules and also based on the relationship
betweenlawandsociety.Histheorydescribedabouttwowordsi.e.Pre
legalworldandLegalworld.
DEFINITIONANDMEANING:SirHLAHartdefineLaw,thatlawisthe
systemofrules,aunionofprimaryandsecondaryrules.Hemeansto
saythatlawisthesystemofrulesandtheserulesareprimarywhichare
prelegalrulesandsecondarywhicharelegalrulesandthemainbased
ofhistheoryontherelationshipbetweenLawandSociety.
Body : Sir HLA Hart theory talks about the two words. These words
are:
ConceptofLaw

PrelegalworldLegal
world
Nolegislature

Ruleofrecognitaion
Noexecutive

RuleofChange
Nocourt

RuleofAdjustice

1. PreLegal World : This pre legal world belongs to old age.

According to Sir, HLA Hart pre legal world there was primitive society.
And in this society there was no legislature which can make the rules.
There was no executive also which can change the rules besides this
therewasnocourtalsotodecidethedisputes.Intheprimitivesociety
therewerethreedefectswhichareasunder:
2 Uncertainty : Since there was no Parliament in the primitive
societywhichcausestheuncertaintyinthelaw.
3 Static character: In the primitive society there were customs and
thesecustomswerenotchanged.Itmeanstherehavestaticcharacter.
4 Inefficiency : In the primitive society there were no power of
Jurisdiction.Itmeansthattherewerenocourtsfollowedbythepeople.
2. LegalWorld:Thislegalworldbelongstomodernage.According
toSirHLAHartinthelegalworldtherearemodernsociety.Becauseof
modernsocietytherearerulesofrecognitionwhichmeansthatthereis
a Parliament/State Executive. The function of the Executive to change
ortoamendtherules.Inmodernagetherearecourtswhichdecidesthe
disputes. Judges applies the earlier laws in deciding the disputes.
Theserules/lawsarethesecondaryrules.ThuswecansaythatLawis
theunionofPrimaryandSecondaryrules.Inotherwordsitcanbesaid
thattheLawisthejourneyofrules.
RELEVANCYOFHLAHARTSTHEORY
SirHLAHartstheoryconceptofLawisthemostimportanttheoryof
analyticalschool.Becausethistheorytellsusabouttheoldageandfor
the modern age. In the old age there were primitive society which did
not have any legislature, executive and court. Therefore only custom
andusageswhichwerenotallowedtochangethembyanyperson.
The theory of concept of law tells us about the legal world. In the
legalworldthereisalegislaturewhichmakestherulesandtheserules
arechangedoramendedbytheexecutivewhenitnecessary.Thereare
courtswhichapplytherulesonparty.Sowecansaythatinmodernage
the law is certain not static in character. Sir HLA Hart also gives the

placeofMoralityinhistheorybecausethemoralhaveanimportantrole
ineverylegalworldandthesemoralsarenotchangedbypassingany
Act. We can say that Sir HLA Hart theory, Concept of Law has the
mostimportantplaceinthetheoryofAnalyticalSchool.
CONCLUSIION: Sir, HLA Hart theory Concept of Law have no
conclusionbecausethistheorytalksaboutboththeprelegalworldand
thelegalworldwhichupdatesandtellsusthathowthelawcomes.So
wecanopinedthatsuchbestandusabletheoryneedsnoconclusionas
ithasitsselfconclusion.

7DefineNaturalLawtheory.AlsoexplainitsrelevanciesintheModern
times.
INTRODUCTION:TheNaturalLawschoolisnotindependentschool.It
hasdeepconcernwithhistorical,analyticalschool.Themaincontentsof
thistheoryisthatithasbeeninterpreteddifferentlyatthedifferenttimes
dependingontheneedsofthedevelopinglegalthoughtbutthegreatest
attribute of the Natural la w theory is its adaptability to meet new
challengesofthetransientsociety.
Accordingtothepropounderofthistheorysaysthat,Lawisaproduct
ofthestraightthinkingofhumanmind.AccordingtoSocrates,heduely
assertitthatthepositivistauthorityshouldbeobeyedbutnotblindlyand
itoughttobesubjecttocriticismifdeserveso.Plato:Hewasintheview
thateachindividualbegivenbestsuitablerolebyreasonofhiscapacity
and abilities. Thomas Acquinas (Roman Thinker): He means that
Natural Law is a part of Divine Law. This part is applied by human
beings to govern their affairs and relations. Thomas Hobbes (Roman
Thinker) : According to him that there should be an absolute authority
which should govern and control the affairs of human beings in the
reciprocaltransmissionofconcernedwitheveryspanoflife.Rousseau
(Roman Thiner) : He held that there two types of will:1. The will of
individual and 2. General will. The authority through his rule must
respectthebothandintheadministrationofrulemakingprocess.These
willshouldbereflected.
Definition: From the jurisprudence point of view Natural law is not a
bodyofactualenactedorinterpretedlawenforcedbycourts.Itisinfact
a way of looking at things and a humanistic approach of Judges and
Jurists. It embodies within it a host of ideals such as morality, justice,
reason, good conduct, freedom, equality, liberty, ethics and so on. The
phrase Natural Law has a flexible meaning. The chief characteristic
featureofnaturallawmaybebrieflystatedasfollows:
i) It is basically a priori method which is different from empirical
method.Itusedtostressuponacauseandeffectrelationshipbetween
thefactsonthevergeoflogic.
ii) Itsymbolizesphysicallawofnaturebasedonmoralidealswhich
hasuniversalapplicabilityatallplacesandtimes.
iii) It has often been used either to defend a change or to maintain
statusquoaccordingtoneedsofthetime.
iv) TheconceptofRuleoflawinEnglandandIndiaanddueprocess
inUSAareessentiallybasedonNaturalLawphilosophy.

MODEN NATURAL LAW THEORIS: The following are the three main
thinkerwhocontributetotheModernNaturalLawtheories:
1. Stammler:HewasmuchmoreinfluencebyPositiveLaw.Hesays
that all positive law is an attempt at just law with regard to will and
purpose of the law maker should have the proper understanding and
knowledge of actual social world or social reality. Various a time in his
conceptheinterchangeableusedthewordwillwiththepurposeandhe
conclude that it is the will of the people which enable them to secure
theirpurposeundersocialreorganisation.
2. KOHLER: His thoughts were influenced by Hegal. According to
himLawisstandardofconductwhichisconsequenceofintheimpulse
ofhumanbeingthaturgeshimtowardsareasonableformoflife.Italso
derivesitsvalidityfromthemoralandethicalstandardinsociety.Sothat
helaiddownstressuponmoralandculturaldevelopmentofsociety.
3. Finnis: Finnis also is a very famous jurists of the present century.
Hehasgiventhedefinitionandplacetonaturallaw.Accordingtofinnis
Natural Law is the set of principles of practical reasonableness in
ordinaryhumanlifeandhumancommunity.Hesetsuptheproposition
thattherearecertainbasicgoodsforhumanbeing.Fennisliststhemas
under:
i) Life: The term life signifies every aspect of vitality in good shape
forselfdetermination.
ii) Knowledge: Knowledge is a process of knowing of unknown with
thehelpofsense.
iii) Sociability of Friendship: Doing something best for the sake of
onesfriendspurposes,oneswellbeing.
iv) Role: It is the expression of a status of human being in practical
formsuchroleisprotectedandrecognisedbylaw.
v) Religion: Question of the origins of cosmic order and of human
freedom and reason expressed thus this view is a good that even an
ethicistcanvalue.
vi) Practicalreasonableness:Thisisthelogicexpressionoftheideas
anddecisioninpracticalcircumstances.Thisthemeasurementofjustor
unjustinarealsituation.
DespitethemeritsofNaturalLawphilosophyithasbeencriticizedforits
weaknessonthefollowinggrounds.Inotherwordsthedemeritsofthe
NaturalLawmaybereadasfollows:
i) Moral proposition i.e. ought to be may not always necessarily
conformtotheneedsofthesociety.
ii) Theconceptofmoralityisavaryingcontentchangingfromplaceto
place,thereforeitwouldbefutiletothinkofuniversalapplicabilityoflaw.
iii) Therulesofmoralityembodiedinnaturallawarenotamendableto
changesbutlegalrulesdoneedachangewithchangingofthesociety.
iv) Legaldisputesmaybesettledbylawcourtsbutdisputesrelatingto
moralandlawofnaturecannotbesubjectedtojudicialscrutiny.
CONCLUSION:The brief survey of the theories of Natural law reveals
thatitsconcepthasbeenchangingfromtimetotime.

8ExplaintheimportanceofLegislationassourceofLaw.OR
Distinguishbetweensupremeandsubordinatelegislation?
INTRODUCTION: Legislation means the process of law making. This
law making power is vested in the legislation body which is sovereign
body.ItiscalledParliamentatthecentrelevelandlegislativeassembly
atthestatelevel.Legislationisthemostimportantandmodernsource

ofLaw.Thissourcehasplayedanimportantroleinthedevelopmentof
modernlawandalsodifferentfromcustomandprecedentetc.
LEGISLATIONASASOURCEOFLAW:Theimportanceoflegislation
starts from the beginning of analytical school. This school ignored the
importance of custom and gave the stress on command of sovereign
which can make law only through legislation. This school also ignored
thejudgemadelaw.Aboutcustomtheysaythatthecustomarenotlaw
buttheyarethesourceoflaw.
HISTORICALSCHOOL:Itgivesnoimportancetothelegislationrather
givesmoreimportancetocustom.Accordingtothemthefunctionoflaw
in only to specify and to correct the custom into law whereas in the
modern times the importance of legislation has considerably been
increased.WiththecomingofexistenceoftheStatethelegislationhas
alsobeencomeintoexistenceandbecomemostimportantsourceof
law.Thescopeoflegislationhasbecomeverywideinthemoderntimes.
KINDSOFLEGISLATION:Therearetwokindsofthelegislation:
1.SupremeLegislation:Ithasthepowersofmakinglawandisknown
as supreme legislation in each country. This power is vested in
sovereign body in India i.e. Parliament at the centre and legislation in
theState.
2.SubordinateLegislation:Itisinferiorfromsupremelegislationandis
indirect legislation. It takes power to make law indirectly from
Parliament, who gave him power to make law that is why is called
subordinate legislation authority. It is further divided into the following
parts:
i) Autonomous Laws : A group of persons for making law is known as
autonomouslawandbodyi.eUniversityorBoards.
ii) Judicial Rule : means the rules made by judicial body under power
owedfromsupremeauthorityi.e.Highcourtsorsupremecourtetc.
iii)LocalLaw:meanslawmadebylocalbodiesunderthecontrolofSC
i.eZilaParishad,MunicipalCorporation.
iv) Colonial Law: It is for those countries who are under the control of
anyothercountrycanmakelawswiththepermissionthatcountry.
Executive Law: The law and the rule can be made by the executive
body in the State under the power conferred by the Sovereign/
Parliamentwhichisalsoknownasdelegatedlegislation.Itincludesthe
followingorigins:
I) Legislation: The legislation is the super power to make law for a
country.
II) Executive:The executive body of the nation is to imposes law in
thecountry.
III) Judiciary: The Judiciary is to explain and implies the law so
passed.
Parliament in India delegates its laws making power to the executive
bodyandthispoweriscalledlegislatedordelegatedlegislation.
Many reform acts were handing power of making reforms,
controlling of employment, development of education. In 20th century
some important matters were given to delegated legislation to restrict
theStatetointerfereinthedailylifeofthecitizens.
CRITICISM: Many of the writers has criticized this power because it
givesmuchpowertotheexecutivebodyandadministrationbody.The
legislation has passed by facing the complicated problems in the
constitution.Thereweresomesupportersalsowhowereinthefavorof
thisdelegationofpower.
REASONSFORDELEGATEDLEGISLATION

i) Lack of Time:The parliament has the shortage of time because of a

Publicwelfarestate.Ithastopaymuchtimetowardsnationalproblems.
ii)TechnicalityofMatters:Withtheprogressofsocietythethingshave
become more complicated and technical. Therefore the policy is made
bytheParliamentandtheimposingmatterisleftonthemastersofit.
iii) Flexibility: Law should be flexible and according to the need &
conditionsofthePublicalongwiththelocalmatterswhicharedifferent
from area to area, So keeping in view of this reason the power is
handedovertotheexecutive.
Therearesomedangersindelegationsofthispower:
i) The executive body may uses the more powers than the powers
delegatedbytheParliament.(ii)TheParliamenthasnotimetoexamine
therulespassedbytheexecutiveunderdelegatedlegislation.
InIndiathereisaParliamentformoflegislationanditisawelfarestate
and the Parliament cannot go aside from the constitution. Any cut
against the constitution is void. The Main power of delegated
legislation&CONCLUSIONis:
Poweroffacinganactintooperation.PowertoapplytheAct.
Power to increase or to decrease the scope of the Act. There is a
parliamentaryaswellasjudiciarycontroloverdelegatedlegislation.This
powerinIndiahasalsoonconstitutionalbasis.
9 Discuss the nature and scope of Jurisprudence. What is the
importanceofthissubjectinthestudyoflaw?ORJurisprudenceisthe
eyeoflaw.
INTRODUCTION:Jurisprudenceinitsnatureisentirelyadifference
subject from other social science. The reason for this is that it is not
codifiedbutagrowinganddynamicsubjecthavingnolimitationonitself.
Itsinquirysystemisofdifferentstatusfromothersubjects.Everyjurist
doesnotbasehisstudyontherulesmadebuttriestounderstandtheir
utilityafterduedeliberationThusthejurisprudencehasnolimitedscope
beingagrowingsubject.Thereisdifferenceofopinionaboutthenature
ofjurisprudence.Itiscalledbothartandscience.Buttocallitscience
wouldbemoreproperanduseful.Thereasonsforthisisthatjustasin
science we draw conclusions after Making a systematic study by
investing new methods. In the same way jurisprudence is concerned
with the fundamental principles of law systematic and scientific study
theirmethods.
Scope of Jurisprudence: According to justice P.B.Mukherjee: ,
Jurisprudenceisbothanintellectualandidealisticabstractionaswellas
behavioural study of man in society. It includes political, social,
economic and cultural ideas. It covers that study of man in relation to
stateandsociety.
Jurisprudence involves certain types of investigations into law, and
investigationanabstract,generalandtheoreticalnaturewhichseeksto
laythebareessentialprinciplesoflawandlegalsystems.
Salmond observed: In jurisprudence we are not concerned to derive
rulesfromauthorityandapplythemtoproblem,weareconcernedrather
toreflectonthenatureoflegalrules,ontheunderlyingmeaningoflegal
concepts and on the essential features of legal system. It therefore
followsthatjurisprudencecomprisesphilosophyoflawanditsobjectis
nottodiscovernewrulesbuttoreflectontherulesalreadyknown.
CONTENTSOFJURISPRUDENCE:Thefollowingarethecontentsof
jurisprudence:

i) Sources It is true that the basic features of a legal system are

mainly to be found in its authoritative sources and the nature and
working of the legal authority behind these sources. Under this head
matterssuchascustom,legislation,precedentasasourcesoflaw,pros
and cons of codification of laws, methods of judicial interpretation and
reasoning,aninquiryintotheadministrationofjusticeetc.,areincluded
forstudy.
ii) Legal Concepts : Jurisprudence includes the analysis of legal
concepts such as rights, title, property, ownership, possession,
obligations, acts, negligence, legal personality and related issues.
Althoughalltheseconceptsareequallystudiedintheordinarybranches
oflaw,butsinceeachofthemfunctionsinseveraldifferentbranchesof
law, jurisprudence tries to build a more comprehensive picture of each
conceptasawhole.
iii) LEGALTHEORY:Legaltheoryisconcernedwithlawasitexists
andfunctionsinthesocietyandthemannerinwhichlawiscreatedand
enforcedasalsotheinfluenceofsocialopinionandlawoneachother.It
is therefore necessary that while analysing legal concepts, and effort
should be made to present them in the background of social
developmentsandchangingeconomicandpoliticalattitudes.
UTILITYORIMPORTANCEOFJURISPRUDENCE
It is often said that jurisprudence being an abstract and theoretical
subject, is not of any practical use. But it is not correct to say so. Its
utilityisasunder:
1. Salmond pointed out that jurisprudence has its own intrinsic
interestlikeandothersubjectofseriousscholarship,likewisethewriter
onjurisprudencemaybeimpelledtohissubjectbyitsintrinsicinterest.
The legal researches on jurisprudence may well have their effect on
contemporary sociopolitical thought and at the same time may
themselvesbeinfluencedbytheseideologies.
2. Jurisprudence also hasitspracticalapplicability.Inotherwordsit
servestorenderthecomplexitiesoflawmoremanageableandrational
andinthiswaytheorycanhelptoimprovepracticeintheseatsoflaw.
3. Jurisprudencehasgreateducationalvalue.Thelogicalanalysisof
legalconceptswidenstheoutlookoflawyersandsharpenstheirlogical
technique.Ithelpstheminshadingasidetheirrigidityandformalismand
trainsthemtoconcentrateorsocialrealitiesandthefunctionalaspects
oflaw.Itisnottheformoflawbutthesocialfunctionoflawwhichhas
relevance in modern jurisprudence. For instance, a proper
understandingoflawofcontractmayperhapsrequiresomeknowledge
ofeconomicandeconomictheoryorapropergraspofcriminallawmay
need some knowledge of criminology and psychiatry and perhaps also
ofsociology.
4. Commenting on the significance and utility of jurisprudence :
Hollandobserved,theeverrenewedcomplexityofhumanrelationscall
for an increasing complexity of legal details, till a merely empirical
knowledgeoflawbecomesimpossible.Thusjurisprudencethrowslight
on the basic ideas and the fundamental principles of law in a given
society.ThiswhyithasbeencharacterisedasTheeyeoflaw.
5. Jurisprudence helps the Judges and the Lawyers in ascertaining
thetruemeaningofthelawspassedbyhelegislaturebyprovidingtheof
interpretation.
6. The study of jurisprudence helps in rationalising the thinking the
students and prepares them for an upright civil life. The knowledge of

lawandlegalpreceptsalsohelpsthemtofaceeveryexigencyofhuman
affairsboldlyandcourageously.
7. Jurisprudencemayalsobehelpfulolegislatorswhoplayacrucial
role in the process of lawmaking. The study of jurisprudence may
familiarisethemwithtechnicalitiesoflawandlegalpreceptsthusmaking
theirjobfairlyeasyasalsointeresting.
AccordingtoDiasthestudyofjurisprudenceprovidesanopportunityfor
the lawyer to bring theory and life into focus for it concerns human
thoughtinrelationtosocialexistence.Thelawshouldservethepurpose
of socialengineering by preserving societal values and eliminating
conflictinginterestsofindividualsinthesociety.
JURISPRUDENCEISTHEEYEOFLAW:Onaccountofimportanceof
jurisprudenceinthefieldoflawitiscalled,TheeyeofLaw.Theeyes
are one of the most important parts of human body. Almost all human
activities and the movements of body are possible only through them.
Unless man can see anything properly, he cannot do any work. The
reasonofcallingjurisprudencethetheeyeoflawisthatjurisprudence
functions for law in the same manner as the eyes do in human body.
Forexampletheinterpretationoflawisaverydifficulttask,Itcannotbe
donewithoutthehelpofjurisprudence.PATONinthisconnectionsays
that, Jurisprudence is a particular method of study, not the law of one
particularcountybutofthegeneralnotionsoflawitself.Wheneverany
complicatedproblemregardinglawlike:
1 Howandwhenthelawdeveloped.2Whatisitsobject.3Whether
the law was made by people or it was due to the inspiration of some
Divineforce.4Whetherthelawisacommandofasovereignoritisa
resultofgradualdevelopmentofcivilizationinsociety.Themainfunction
of jurisprudence is to study the origin of law, its development and its
contributiontowardssociety.
The matters to birth, marriages, death, succession etc., are equally
controlled through laws. It is the well known saying that, ignorance of
law is no excuse, hence it is essential to know the correct basic
principlesoflawwhicharecontainedonlyinthejurisprudence.Lawis
also connected with civil life. A person who obeys laws is known as a
civilized citizen. A person who does not obey law is punished. It is
therefore necessary that all the people should have the sound
knowledgeoflawwhichispossibleonlywiththehelpofjurisprudence.
Therefore, jurisprudence, having so much importance for the society,
hasrightlybeencalledtheeyeoflaw.
10Judgesarethemakersoflawnotdiscoversoflaw.Doyouagreewith
thisview?
INTRODUTION: There are two contrary theories regarding the
questionastowhetherJudgesdeclaretheexistinglawormakethelaw.
Therearetwowhichareasunder:
1. TheorythatjudgesdeclarethelaworDeclaratoryTheory.
2. Theorythatjudgesmakethelaworlegislativetheory.(Lawmaking
theory)
1.DECLARATORYTHEORY:Thefirsttheoryisthedeclaratorytheory
as described by Hall and Blackstone and they supported by Dr. carten
also.
According to the declaratory theory no new law is created by the
Judge,CourtsofJusticedonotmakelaw,theirprovinceistoascertain
anddeclarewhatthelawis.Judgesonlydiscovertheexistinglaws.
Haleenunciatesdeclaratorytheoryofprecedentsandcontendsthat
whilst Parliament alone legislates in the strict sense the Judges only

expoundthelawandtheirdecisionsarethebestevidenceofwhatlaw
is. The result of his theory is that the effect of the decision is
retrospectiveforitdoesnotonlydeclarewhatlawisbutwhatitalways
hasbeen.NeverthelessasMainehaspointedoutoncetheJudgement
hasbeendeclaredandreportedwestartwithanewtrainofthoughtand
frequentlyadmitthatthelawhasbeenmodified.
AccordingtoLordEsher,ThereisinfactnosuchhingasJudge
madelaw,forhjudgedonotmakethelaw,thoughtheyfrequentlyhave
to apply the existing law to the circumstances as to which it has not
previouslybeenauthoritativelylaiddownthatsuchlawisapplicable.
DeclaratorytheoryisbasedonthefictionthattheEnglishlawisan
existingsomethingwhichisonlydeclaredbytheJudges.Thistheoryis
knownasthetheoryofjudicialprecedent.
LAWMAKINGTHEORY
ThesecondtheoryisthattheJudgesdonotdeclarelawbutmakethe
lawinthesenseofmanufacturingofcreatingentirelynewlaw.Bentham
and Austin, have opposed the traditional view as a childish fiction and
have declared that Judges are in fact the makers and fulfill a function
verysimilartothatofthelegislature.
Lord Becon: The new point decided by the Judges is a direct
contribution towards lawmaking. Professor Dicey supported this view
andgivesexampleofEnglishcommonlawwhichhasbeenmadebythe
judges which has been made by the judges through their judicial
pronouncements.
Prof.Gray:supportsthislawmakingtheoryandsaysthatjudgesalone
arethemakersoflaw.Hediscreditsthedeclaratorytheory.
Judges are without any query lawmakers but their power of law
makingisnotunrestricted.Itisstrictlylimitedforinstancetheycannot
over rule a statute where the statute clearly lays down the law. The
legislativepowersarerestrictedtothefactsofcasebeforethem.
AccordingtoSalmond:Whoisstrongsupportofthisviewsaysthathe
is evidently troubled in mind as to the true position of precedent. He
furthersaysthatbothinlawandinequitydeclaratorytheoryaltogether
totallyrejected.
Such cases which are not covered by existing laws the judicial
decisionscreatednewnotionsandformulaenewprincipleswhichwere
never contemplated earlier. Supreme court overruled the Golak Nath
decision in Keshwanand Bharis case and laid down a new basic
structuretheoryandinGolaknathcasethenewprincipleofprospective
overrulingwasevolvedbyJudges.
RECONCILAIONOFTHETWOTHEORIES
Theabovetwoviewsaboutmakingoflawbyjudgesarenotexclusiveof
each other but they are rather complementary. It will be seen that
neither the purely declaratory theory nor the purely legislative theory
representsthewholetruth.Judgesdevelopthelawbutcannotbesaid
tolegislate.Thecommonlawisnotmadebuthasgrownandthemoreit
changesthemoreitremainsthesamething.
TheanswertothequestionwhethertheJudgesmakeor
discover law much depends upon the nature of the particular legal
system.IncommonlawsystemitmaybestatedthattheJudgesmake
law while in other countries where is law is codified the judges only
supplementthelaw.Itistruethatcustomandstatutesdonotrenderthe
judgessomesuperfulvousknowledge.


11 Explain the phrase, Law is social Engineering as propounded by
RoscoePound.
INTRODUCTION: Roscoe Pound is considered to be the, American
Leader in the field of Sociological jurisprudence. He comes from
Harvard Law School and had a great academic favour. According to
him, the end of law should be to satisfy a maximum of wants with
minimumoffriction.Hedefinedlawascontainingtherules,principles,
conceptionsandstandardsofconductanddecisionasalsotheprecepts
anddoctrinesofprofessionalrulesofart.Heconsiderslawasameans
of a developed technique and treats jurisprudence as social
engineering.
The main propositions of Roscoe Pound theory of Social Engineering
areasunder:
i) POUND CONCENTRATES ON THE FUNCTIONAL ASPECT OF
LAW:Poundconcentratesmoreonthefunctionalaspectoflaw,thatis
whysomewritersnamehasapproachasfunctionalschoolthelawis
an ordering of conduct so as to make the goods of existence and the
means of satisfying claims go round as far as possible with the least
frictionandwaste.
ii) THE TASK OF LAW IS SOCIAL ENGINEERING: He says, for
the purpose of understanding of law of today. I am content with a
pictureofsatisfyingasmuchofthewholebodyofhumanwantsaswe
may with the least sacrifice. I am content to think of law as a social
institution to satisfy, social wants, the claims and demands involved in
theexistenceofcivilizedsociety.
iii) SOCIAL ENGNEERING MEANS A BALANCE BETWEEN HE
COMPETINGINTERESTINSOCIETY:Helaysdownamethodwhich
ajuristshouldfollowforsocialengineering.Heshouldstudytheactual
socialeffectsoflegalinstitutionandlegaldoctrines,studythemeansof
making legal rules effective sociological study in preparation of law
making, study of judicial method, a sociological legal history and the
importance of reasonable and just solutions of individual cases. He
himself enumerates the various interests which are to be protected by
thelaw.Heclassifiesthemunderthreeheads:
i. PrivateInterests(ii)PublicInterests(iii)SocialInterests.
PRIVATEINERESTS:Suchasinterestofphysicalintegrity,reputation,
Freedomofvolitionandfreedomofconscience.They
Aresafeguardedbylawofcrimes,contracts.
PUBLIC INTERESTS: Main public interests are preservation of the
State,StateasaguardianofsocialinterestssuchasAdministRationof
trusts, charitable endowments, protection of Natural environment,
territorialwaters,seashores,Regulationofpublic
employmentandsoon.
SOCIAL INTERESTS: Preservation of peace, general health,
preservingofSocialinstitutionssuchasreligion,politicalandEconomic
institutions, general morals, promotes Human personality, cultural and
economiclife.
Pound tackled he problem of interests in term as of balancing of
individualandsocialinterests.Itisthroughtheinstrumentalityoflawthat
these interest are sought to be balanced. Justice Cardozo remarked
that,Poundattemptedtoemphasizetheneedforjudicialawarenessof
thesocialvaluesandinterests.RoscoePoundregardedlawasabasic

tool of social engineering. How in India the society and law are acting
and reacting upon each other can be adjudged from the following
enactmentspassedafterIndiabecameIndependent:
a. ThespecialMarriageAct19542.TheHinduMarriageAct19553.
TheHindusuccessionAct19564.TheHinduMinorityandguardianship
Act 1956 5. The Hindu Adoptions and Maintenance Act 1956 6. The
Dowry Prohibition Act 1961 7. Child Marriage Restraint (Amendment
Act) 1978 8. The Consumer Protection Act 1986 9. The S.C & S.T.
(PreventionofAtrocities)Act198910.CommissionofSati(Prevention)
Act198711.Bondedlabour(Abolition)Act1976
INTERESTS AS THE MAIN SUBJECTMATTER OF LAW: Pounds
theoryisthatinterestsarethemainsubjectmatteroflawandthetaskof
lawisthesatisfactionofhumanwantsanddesires.Itisthedutyoflaw
to make a valuation interests in other words to make a selection of
sociallymostvaluableobjectivesandtosecurethem.
Toconcludingthetheory,PoundsaysthattheaimofSocial
Engineering is to build an efficient structure of the society as far as
possiblewhichinvolveshebalancingofcompetinginterests.
CRITICISMAGAINSTPOUNDSTHEORY:
i. Engineering not a happy word : It suggests a mechanical
application of the principles to social needs but really the word
engineering is used by Pound metaphorically to indicate the problems
whichthelawhastoface.
ii. Classificationofinterestsnotuseful:Freidmanndoubtsthevalueof
classificationofinterestsandthevalueofsuchclassification.
iii. Ihering & Bentham concludes the theory of Pounds that, such
classifications greatly helps to make legislature as well as the teacher
andpractitioneroflawconsciousoftheprinciplesandvaluesinvolvedin
anyparticularissue.Itisanimportantaidinthelinkingofprincipleand
practice.
POUNDSCONTRIBUTION
SocialEngineeringstandsonapracticalandfirmground.Hepointsout
the responsibility of the lawyer, the judge and the jurists and gives a
comprehensivepictureofthescopeandfieldofthesubject.

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

Whetherthefollowingarelegalperson:
1. PresidentofIndia2.CouncilofMinisters3.Company4Un
bornchild.5.Animals.
INTRODUCTION: Natural Persons are all human beings who are
capableofrightsanddutiesinlaw,i.e.whohaveastatus.Legalpersons
arethosetowhomlawisrecognisedasaperson.Itiseitherathingora
mass of property or group of human beings to which law attributes
personalitythelawconfersalegalstatusandwhothusintheeyeoflaw
possessrightsanddutiesasanaturalperson.Personisoftwotypes:
1.NaturalPersonII.LegalPerson
AccordingtoGray,Apersonisanentitytowhichrightsanddutiesmay
attributed.
According to Salmond, person is, any being to whom law regards a
capableofrightsandduties.
AccordingtoPaton,Legalpersonalityisamediumthroughwhichsome
suchunitsarecreatedinwhomrightscanbevested.
In the development of society, law developed and with the
developmentoflawtheconceptoflegalpersonalitycomeintoexistence.
Intheancienttimestherewasnoconceptoflegalpersonalitybutasthe

society developed the person was recognised as the representative of

theStateandaseparatepersonalitywasgiventohim.Intheduecourse
oftimecorporationandcompaniescameintoexistencesuchcompanies
andcorporateweregiventheseparatepersonalitysointhiswaythese
bodiesarenowcalledaslegalpersons.
Therearethefollowingtwotypesofpersons:
i) NATURAL PERSONS ( HUMAN PERSONS): All human beings
are natural persons but in ancient society the slaves were not
recognised as natural persons. Similarly outlaid persons, unsound
personswerenotnaturalpersons.InHinduLaw,Manuhasmentioned
some persons who were not recognised as natural persons i.e. Born
child,deafpersons,sanyasiandthosewhoarelivingdead.
1. Unbornperson:Unbornpersonisnotanaturalpersonbecausehe
isnotinexistence,butachildinthewombisnaturalpersonbecausehe
bears the rights and duties under law. Person in the womb can
represent the position after birth. In IPC the child in the womb is
considered as a natural person as soon as any of his organ will come
outfromthewomb.
2. If the pregnant lady gets the punishment of death sentence. She
willbehangedonlyafterdelivery.
3. ANIMALS: In ancient time the animals were legal persons but in
moderntimeanimalsarenotthelegalpersonsbutinlawwefindcome
casesinwhichsomeanimalshavesomerightsandduties.Todayalso
theprotectionofanimalssomelawshavebeenmadewhichgiverights
totheanimals.Theselawsprohibitpeopletokillthem.Inthistheorythe
personalityhasalsobeenconfirmed.
4. DeadPerson:Inlawdeadpersonhasnoexistenceasthedead
personhasnopersonality.Butincertaincasestheyareconsideredas
person in law. First if any person defames the dead person and such
defamation lowers the reputation of the family members of the dead
person, then a legal action be taken against the wrongdoer who
defamed the dead person. Secondly if any person defames the dead
bodyofdeceasedpersonthensuchpersonisliablefordamagesunder
law.
ii) LEGALPERSONS:Legalpersonareartificialorimaginarybeings
towhomlawattributespersonalitybywayoffiction,i.e.lawgivesthem
rightsanddutieslikeofnaturalpersons,e.g.KingofEnglandhastwo
personalitiesfirstahumanbeingsecondasheadofstate,beinghead
of state he is known as a legal person. Similarly he President of India
andtheGovernorsofthestatesarelegalpersons.
CORPORATE PERSONALITY: Main form of legal personality is the
corporatepersonality.Itisoftwokinds:
1. Corporatesole:meansasinglebodyrepresentinganystateorany
other object. It is called series of the successive persons. The King of
EnglandorthePresidentofIndiaisthecorporatesole.Theyrepresent
onlyonemaninsuccessiveperiod.Thepostofcorporatesoleremains
alwaysalivewhilethehumanbeingswhositonthepostmaydie.
2. Corporate Aggregate : When law confers single personality to a
groupofpersonthenitiscalledcorporateaggregatee.g.companiesare
registered according to law of societies or according to law of land.
Thesecompaniesorcorporationsetc.,arelegalpersons.
3. In the ancient time the Karta represented the whole Hindu family
whowasconsideredaslegalperson.ItissameasinRomanSociety.It
isadoptedintheshapeofIndiancompaniesAct1956.Theadvantages

of the corporate personality because they represent an association of

personsasasinglepersonwhichishelpfulinbusiness.

13LaydowntheessentialfeaturesoftheHistoricalschool.Discussthe
viewsofSocietyinthisregard.ORDiscussthephilosophyoflawas
givenbySovgingunderHistoricalSchool?ORWritecriticallynoteon
thefollowingSoveging(VolkgeistTheory).
INTRODUCTION: Jurisprudence is a subject in which the definition
natureandthesourcesoflawarestudiedvariouswritersundervarious
schoolshavedefinedlaw.AustinunderAnalyticalschoolsaysthatlaw
is the command of sovereign. He added only the law in the study of
jurisprudence.ButunderhistoricalschoolSovigingsaysthatlawisthe
general consciousness (Volkgeist) of the people. It means what the
common people think or behave is the base of law. Law shows the
general nature of the common people. This theory of Volkgeist is
bassedonthehistoricalmethod.Sovegingisthefatherofit.According
toSoveging,LawistheGeneralconsciousnessofhepeople.
HISTORICALSCHOOL
Historical School is a branch of Law, which studies law from the past
history. It says that law is based on the General Consciousness of
people. The consciousness started from the very beginning of the
society.Therewasnopersonlikesovereignforthecreationoflaw.
Thelawintheancienttimeswasbasedmainlyupon
simplerules,regulation,custom,usagesconventionsetc.Thesethings
werelaterondevelopedbythejuristsandlawyers.Thesethingswere
lateronconvertedintosetformoflaw.
CAUSESOFCOMMINGOFTHEHISTORICALSCHOOL

TheHistoricalschoolisjustoppositetotheAnalyticalschoolin
18thand19thcentury,theconceptofindividualismcameintoexistence.
DuetothisconcepttherevolutionscamelikeFrenchrevolution,Russian
revolutionetc.AtthattimeSovegingmontasque,Barke,Hngowerethe
writerswhosaidthatlawisthegeneralwillofthepeopleorlawisbased
uponcommonpeopleandthefeelingsofthecommonpeople.
Lawdevelopslikethelanguageandmannersofthesociety.
So law has a natural character. Law has no universal application. It
differs from society to society and state to state. In the same way the
languagesdifferfromsocietytosocietyandlocalitytolocality.
Montasoque has said, Law is the creation of climate, local situations
and accidents. According to Hugo hag, Law develops like language
and the manners of the society and it develops according to suitable
circumstances of the Society. The necessary thing is the acceptance
andobservancebysociety.
AccordingtoBurke,LawistheproductoftheGeneralprocess.Inthis
senseitisdynamicorganwhichchangesanddevelopsaccordingtothe
suitablecircumstancesofsociety.
SOVEGING:Sovegingisconsideredasthemainexpounder
orsupporterofthehistoricalschool.HehasgiventheVolkgeisttheory.
Accordingtothistheory,lawisbaseduponthegeneralwillorfreewillof
common people. He says that law grows with the growth of nations
increaseswithitanddieswiththedissolutionofthenations.Inthisway
law is national character. Consciousness of people. In other words,
accordingtothistheorylawisbasedwillorfreewillofcommonpeople.
He says that law grows with the growth of nation. A law which is

suitabletoonesocietymaynotbesuitabletoothersociety.Inthisway
law has no universal application because it based upon the local
conditionslocalsituations,localcircumstances,localcustoms,elements
etc.Althesethingseffectlawandmakeitsuitabletothesociety.
ThemainfeaturesoftheSovegingtheoryis:
1. Lawhasanationalcharacter.
2. Law is based upon the national conditions, situations,
circumstances,custometc.
3. Lawisprehistoric:meanslawisfoundandisnotmade,thejurists
andthelawyersmakeitintosetform.
4. Law develops like languageandmannerofthesociety.Inancient
societylawwasnotinanaturalstageornoinasetform.Lateronwith
thedevelopmentofthesocietytherequirementsandthenecessitiesof
thesocietyincreased.Duetothisitwasnecessarytomouldlawinaset
form.
IMPORTANCEOFCUSTOMS
According to Soveging customs are more important than legislation
because customs come before legislation. In other words the customs
arethebaseoflegislation.
CRITICISMOFSOVEGINGsTHEORY

Savignystheoryhasbeencriticisedonthefollowinggrounds:
1. InconsistencyintheTheory:Savegingassertedthattheoriginof
lawisinthepopularconsciousness,andontheotherhand,arguedthat
someoftheprinciplesofRomanlawwereofuniversalapplication.Thus,
itisaclearcutinconsistencyinhisideas.
2. Volksgeist not the Exclusive Sources of law : There are many
technical rules which never existed in nor has any connection with
popularconsciousness.
3. Customs not Always Based on Popular Consciousness: Many
customs are adopted due to imitation and not on the ground of their
righteousness. Sometimes customs completely opposed to each other
exist in different parts of the same country which cannot be said to be
reflectingthespiritofthewholecommunity.
4. Savigny Ignored Other Factors That Influence Law: The law
relating to trade unions is an outcome of a long and violent struggle
betweenconflictinginterestswithinasociety.
5. Many Things Unexplained : Legal developments in various
countriesshowsomeuniformitytowhichhepaidnoheed.i.e.
6. Whatisnationalandwhatisuniversal.
7. Juristic Pessimism: Soveging encouraged juristic pessimism.
Legislation must accord with popular consciousness. Such a view will
not find favour in modern times. No legal system would like to make
compromisewithabuses.Peopleareaccustomedtoit.
CONCLUSION
Fromthefactsmentionedabovewehavegonebehindtoseethehistory
ofthesocietytocheckthatwhatwasthepositionoflawintheancient
time.Howandinwhatformlawwasprevailinginthesociety?Tofind
thesolutionofthequestionsthesupporterofHistoricalschoolfoundthat
lawisthegeneralconsciousnessofthecommonpeopleoritisthefree
willofcommonpeopleonwhichlawdevelopedandconvertedintoaset
offormoflaw.

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

thesourceoflaw.Inwhatsensetheyarebinding?Dothejudgesmake
law?
INRODUCTION: Precedents literally means previous judicial decision.
Thedecisionsofthehighercourtsarebindingonthelowercourts.The
binding force of decision is called precedent. The precedents play an
important role in the development of law. It is the second important
sourceoflaw.Firstsourceiscustomsandthethirdsourceislegislation.
Sometimes act may be insufficient for the case or there may be an
vacuumoranythingmissingintheact.Underthesecircumstancesthe
courtcanapplytheirownmind.Theseindependentdecisionsbecomes
precedents which are followed later on by the same & Lower courts.
ThismethodofdecisionisalsocalledasJudgemadelaw.TheEnglish
andAmericanlawismostlybasedupontheprecedents.InIndiaArt.141
ofIndianConstitutionsaysthatthedecisionofthehighercourtsshallbe
bindinguponthelowercourts.
DEFINATIONOFPRECEDENTS:Precedentsareadecisionofacourt
whichisalsocalledjudicialdecision.AccordingtotheOxfordUniversity,
Precedents means the previous decision case given by a court
according to rules. Various writers have given the definition of
precedentsisconductofcourtadoptedbythelowercourtinsimilarfacts
and in similar circumstances in a case. Particularly the precedents
means the Judge made law. When the court gives its own ideas for
creatingnewrules.England,AmericaandChinaalsofollowtheprevious
decisionsasthesourceoflawbutthecontinentcountrieslikeGermany,
Japandoesnotacceptthepreviousdecisionsasthesourceoflaw.The
method of taking precedents as source of law is called inductive
method,whilethemethodofcontinentalcountriesnotfollowingprevious
decisionsofthecourtiscalleddeductivemethod.
MERITSOFPRECEDENTS:Precedentsareaveryimportantsourceof
Law. They play an important role in the development of law, so they
havecertainadvantagesas:
1. Precedentsshowtruerespecttotheancestorsmeansbyadopting
thepreviousdecisionofthehighercourttodecidethepresentcase,itis
akindofrespecttoelders.
2. Precedentsaresuitabletothepresentsituationmeansaftersome
times the circumstances of the society can change with the change of
time so the precedents they are more suitable and fit for the present
timeandcircumstances.
3. Precedentsarebasedoncustomsmeansthelawintheformofact
which based upon customs. Court interprets the customs while
interpretinganyact.
4. Precedents are convenient and easy to follow because they are
availableintheformofwrittenreports.
5. Precedentsbringcertaintyinlaw,oncedecisionisgiveninacase
there would be no need to repeat all precedents in any other case if it
resemblestotheformercase.
6. Precedents are the best guide for the Judges: They play an
important role in the judiciary because the precedents are the guide
linesforthecourts.
DEMERITS OF THE PROCEDENTS: lthough the demerits are very
fewbuttheseareasunder:
i) Thedecisionsaregivenbythehumanbeingswhileperformingthe
duties as judge, his decision may not be suitable to all persons who
havedifferentmindandthinking.ThiswillbeabadeffectonJudiciary.

ii) Sometimesthedecisionsofthehighercourtscontradictorytoeach
other.Itbecomeshardertoanotherjudgetoapplythesameverdictsas
aprecedentsofhighercourt
iii) Sometimesthehighercourtsgiveawrongdecisionandoverpass
theimportantfactorsofthecaseduetoonereasonortheothers.
PRECEDENTSAREBINDING:Theprecedentsisanimportantsource
oflaw.Itisavailableintheformofjudicialdecisions.Nowthequestion
arisesthatinwhatsenseandwhentheprecedentsarebindingofollow.
For the answer of this query different views have been given by the
variouswritersandjurists.Nodoubtstheprecedentsisnotbindinglike
warrantissuedbyacourtoflaw.Itmeansprecedentcanbeoverruled
iftheyarenotrightorappropriabletothecasetobedecidedbutwarrant
hastobefollowedbyalltowhomitisapplicable.
It is not necessary that in the case which is to be decided the
circumstancesandthefactsmustbethesameasinresemblingcase.If
thefactsandthecircumstancesofthecasesaremateriallysimilarthen
theprecedentsorpreviousjudicialdecisionisappliedinthelatercases
and are applied only in the form of ratio decidendi of previous cases.
Therearetwopartsofit:
i) Ratiodecidendi: means reasons which leads the court to reach
the decision. It is the main part of the case in judgement and the ratio
decidendiofthedecisionisbindingintheformofprecedent.
ii) Obitsdecidendi:Itisalsoapartofthedecisionwhichisirrelevant
to the facts and circumstances of the case. The judge takes into
consideration the social conditions, morality, principal of natural justice
thatiswhytheJudgesplayanimportantroleinthedevelopmentoflegal
system.
DIFFERENCEBETWEENCUSTOM&PRECEDENTS
CUSTOMS PRECEDENTS
Customisprimarysourceoflaw.

Precedentsarethesecondarysourceoflaw.
Customisgivenbypeopleingeneral. Precedentsaregivenbycourts.
Custom is conduct adopted by people of society. Precedents is itself
completecertain,reasonablegivenbyacompetentcourtofthecountry.
Customisbaseduponthereasoningofcommonpeopleofthesociety.

PrecedentsarebaseduponthereasoningofaindividualJudgeor
veryfewjudges.
Customshavemorevaluethenprecedentsandcannotbeignored. It
canbeignoredifitgivesunjustice.

DOJUDGESMAKELAW:
There are two theories about this purpose one theory says that Judgs
do not make laws and other theory says that Judges in fact are the
makers of Laws. This theory is also known as declaratory Theory.
Accordingtothisthejudgesarenotmakersofthelawswhichtheyare
alreadynexistence.Thejudgeswhiledecidingthecaseonlyappliesthe
existentandrelevantcustomsfordecidingthecases.
Judgesarenotthelawmakers:Thesupportersofthistheory(historical
school)saysthatallthelawsarebaseduponcustoms.Thejudgesonly
to explain these laws and customs. According to Coke hate and
Dr.Carter,thatthelawiscreatedbytheKingorbytheParliamentorby
the Legislature bodies. Common Laws is based upon custom. The
public through the decision of courts come to know those customs. It
meansthatJudiciaryisnotthemakeroflaw.Acase:RageshwarParsad

v/s state of West Bengal. It was held that, The court does not create
Law.
ORIGINALLAWMAKINGTHEORY
Thistheoryisoppositetothefirsttheory.ItsaysthattheJudgesarethe
realmakersofthelaw.Theynotonlyinterpretorexplainbutalsomake
the law. According to Salmond: who is the main supporters of this
theorysays,Thatthedecisionsofthecourtsareagreatcontributionto
thelegalsystem.Dicaysaysthat,thatlegalsystemisthebestpartof
thelawofEnglandwhichisjudgemadelaw.
CONCLUSION: The conclusion or the correct view is that we cannot
ignored any of the above theories because both are correct and
complementstoeachotherandbothshouldbetaken.Nodoubtthata
Judge can only to explain or to interprets the existing laws but at the
sametimehealsocreatesthenewideas,thoughtsandgivesnewtouch
ideaswhichplayanimportantroleinthedevelopmentoflaw.
15 Discuss the main features of the Pure Theory of Law. How it
resembleswithAustinscommandtheory.Criticallyexaminetheviewof
KelsongivenunderpuretheoryofLaw?
Introduction:ThePureTheoryofLawisgivenbyKelson.Thistheoryis
also known as Vienna School because Kelson is the productor of
ViennaUniversity.ThistheoryresembleswithAustinscommandtheory
because in Kelsons theory there must be sanction behind law. Austin
gave it the name of command theory and Kelson gave it the name of
grandnorm theory. Kelson is affected by local conditions, natural
conditionandinternationalcondition.Afterstudyingalltheseconditions
he gave this theory of Law, which is known as pure theory of law and
grandnormtheory.
ConceptofpuretheoryofLaw:AtthetimeofKelsonthereareIstworld
waswhichdestrictedthepropertyofhumanbeingsatinternationallevel.
Sohegavepowertotheinternationallawandavoidingthedestructions
oftheworld.Secondlyduringthattimemanycountriesadoptedwritten
constitution. So Kelson also get influenced from these written
constitutionsandgavehisowntheorywhichisbasedongrandnorms.
Grandnorm

GrandmeansgreatandnormmeansLaw,Soitmeansagreatlaw
the superior authority from which law comes out. He compared the
grandnormwithwrittenconstitution.Accordingtohimwrittenconstitution
isthehighestauthorityinthecountrywhichisknownasgrandnorms.In
England the Parliament is a grandnorm, in USA written constitution is
grandnormsandinIndiatoowrittenConstitutionisgrandnorm.Stateis
not above the grandnorm. Sovereignty also liven in grandnorm.
Accoding to Kelson law is a motive nor science, it means science of
norms. In laws only those rules are taken which are related with legal
aspects.Anyotherslikemoralrules,religiousrules,ethicalrulesdonot
comeundertheconceptsofgrandnorm.HereKelsonisequaltoAustin.
Whenheexcludesmoralsrelationorethicsfromthefieldoflaw.
SystemofNormativeRules:SystemofnormativeruleswasHierarchy.
Inhierarchysystemthereisonehighestauthorityandallotherarelower
authorities.Thishighestauthoritywasgrandnormwhichwasintheform
of written constitution and other authorities are below the constitution.
Thesourceofpowerinastateforallbodiesiswrittenconstitution.
Internation Law: Kelson says that norms have a force behind it. This
force lies in the grandnorm. If this legal norm is not obeyed then one
personwillbepunishedforit.Healsosaysthatatthistimeinternational
lawisimmature.Itisinprimitivestage.Itisdeveloping.

Nature of Grandnorm: According to Kelson each country has the

formationofgrandnormaccordingtolocalconditions.Thedutyofjurists
is to interpret the grandnorm in their own language. They are not
concerned with the goodness or badness of the grandnorm. They are
not concerned with the origin of the grandnorm. In this way the
grandnormisthemainsourceofallthelawsinthecountry.
ElementsofPureTheory:Kelsongavehisviewunderthistheoryabout
State, sovereignty, public and private law, public and private rights,
internationallawprivateandjuristiclaw.
FeatureofKelsonstheory:
1. Grandnorm as a source of law: Grandnorm is the source of all
laws. Grandnorm is in the form of written constitution. Any such body,
whichcontainsrules,oranysuchlegalsysteminacountry.
2. Nodifferencebetweenlawandstate:Kelsonsaysthatthereisno
differencebetweenlawandStatebetweenbecausetheygetpowerfrom
thesamegrandnorm.Lawcomesfromthegrandnormandthestatealso
comesfromthegrandnorm.
3. Sovereign is not a separate body: Austin says sovereign is a
politically superior person which keeps controls over the politically
inferiorpersons.ButKelsonsaysthatthepowerofsovereignliesinthe
people.SotheSovereignisnotseparateandsuperiorfromthepeople
ofthecountry.
4. Nodifferencebetweenpubliclawandprivatelaw:Thepubliclaw
isrelatedwiththestateandtheprivatelawisrelatedwiththeindividuals
as Kelson says that there is no difference between public law and
private law. The law which creates a contract between individuals is
calledprivatelaw.
5. Supremacy of internationally laws: The main prupose of Kelson
wastodecreasethetensionatworldlevelbecausetherewasIstworld
warwhichdestroyedmillionsofpersonsandproperty.Healsosaidthat
theinternaitonlawisinprimitivestageorimmaturestage.Itmeansitis
in developing stage. One day will come when international law will get
equaltothatofmunicipallaw.Sothisisalsoenforceable.
Criticism of Kelsons theory: Inspit of having good concept of pure
theorygivenbyKelsonsomeofthecriticismfacedbyhim,whichareas
under:
a. Grandnormisavagueconcept:Theconceptofgrandnormisnot
clear. It cannot be applied where there is no written constitution. The
baseofgrandnormintheformofpositivenormsortherulesbasedonly
on legal order is not clear. The rules, which are not linked with morals
ethics.Customsandreligionarenotthenorms.Butwecannotignore
theroleofthesenormsinthedevelopmentoflaw.
b. InterantionLawisaweaklaw:Kelsonadvocatedthesupremacyof
international law. But even upto now we see that is no force behind
internationallaw.
c. Nodifferencebetweenstateandlaw:thispointisalsocriticisedby
variouswriters.LawasaseparatethingfromtheState.Stateisbodyis
lawin,whichlawisarulethatregulatesthestate.
d. Difference between public law and private law: Kelson says that
there is no different between public law and private law. Which is also
notrightinthemoderndays.
e. CustomsandPrecedentsignored:Healsocustomsasasourceof
lawwhileweseethatcustomsarethesourceofalllaws.
Conclusion: Although Kelson has been criticised from various angles
yethehadcontributedalotinthedevelopmentofthesociety.Thusthe

concept of grandnorm gave power to the public at large as well as at

national level. His main purpose was to stop destruction of any world
war. This can resemble to Austin also Kelson is also limited with the
law.

16 Discuss the Salient features of the Sociological School of

Jurisprudence? OR Salient features of the Sociological School of
Jurisprudence?
Introduction:Thesociologicalschoolisoneofheimportantbranchesof
law.ItcomesaftertheAnalyticalschoolandHistoricalschool.Itsseeds
werefoundinthehistoricalschool.Duguit,RoscopoundandCamtaare
the supporters of this school. This school is related with society.
According to this school law is numerator of society. Law and society
both are the two sides of the same coin, one cannot exist without the
other.Ifthereislawthereshouldbesocietyandifthereissocietythere
should be law. Law is very necessary for regulating the society. Many
writers like Duguit, Roscopound and Inhering gave these view in the
sociologicalschool.
ThetheoryofDuguitundersociologicalschoolisasocialsolidarity.
Scocialsolidaritymeansthegreatnessofsociety.Duguitsaidthatthere
aremainlytwotypesofneedsofthesociety:
1.CommonNeeds2.AdverseNeeds.
1.CommonNeeds:Whicharefulfilledbymutualassistance.
2.AdverseNeeds.:Whicharefulfilledbytheexchangeofservices.No
onecanlivewithoutthehelpofother.Evenastatecannotexistwithout
thehelpofotherstate.Onecannotproduceallthingsrequiredforhim.
So he has to depend upon others. The dependency is called social
solidarity.Forthispurposethedivisionoflabourisnecessary.Division
of labour will fulfill all requirement for the society. This philosophy or
viewsiscalledsocialsolidarity.
ESSENTIALELEMENTSOFDUGUITTHEORYOFLAW
1.MutualInterdependence:Insocietyallpersonsaredependingupon
eachother.Individualcannotfulfillhisambitionsalone.
2.Nodifferencebetweenstate&society:Stateandsocietyareagroup
of persons. Main purpose of the society is to save the people. This
responsibility is also lies upon the state. So state does not have a
special status or above status from people. State should make law for
thewelfareofthepeople.
3. Sovereign and will of people: Sovereign is a politically superior
person. Duguit says that sovereign is not superior to people. The
sovereignofastatelivesinpeopleorinthewillofpeople.
DIFFERENCEBETWEENPUBLIC&PRIVATELAW
Duguit says that there is no difference between public law and private
law because the aim of both the law is to develop the social solidarity.
Pubiclawandprivatelawaremeantforpeople.Publicrightandprivate
rightorpeoplehaveonlydutiesandnotanyright.
There is no difference between public right and private right.
AccordingtoDuguitthereisonlyonerightthatistoservethepeople.It
meanspersonhaveonlydutiesnotrights.
CRITICISMOFDUGUITSTHEORY
1.Thetheoryofsocialsolidarityisvague:Thistheoryisnotclearfora
common person. One cannot gain anything from this theory so this is
vaguetheory.
2.Who will decide social solidarity : Duguit has not given the authority
that who will explain the solidarity because Duguit did not recognize

sovereignty. We can imagine that Judge will explain the standard of

socialsolidarity.ButtherearenoguidelinesfortheJudgess
3.PubliclawandPrivatelawarenotsame:Theremustbeanauthority
which passes the law. In Duguit theory there is no place for such
authority.
4.PublicrightandPrivaterightarealsonotsame:Therightofsociety
ispublicrightandtherightofcommonpeopleisprivateright.
5. Custom ignored: Custom is the base of any law but Duguit ignore
thesecustoms.InthiswaythetheoryofDuguitisnotsuitablyinmodern
times.
CONCLUSION
No doubt Duguit was a sociologist because he gave a lot of
developmenttosociety.Thesocialsolidarityitselfcontainsthewelfareof
the people. Duguit said that law should be according to the social
solidarity.Herehediscardsnaturalprincipalbutthetheoryofthesocial
solidarity itself is based upon natural law, which demands that the
people should served properly according to their needs. In this way
Duguit put out the natural law principal from the door and accepted
throughthewindow.
HoweverthecontributionofDuguitisacceptedbymanywritersand
someofthemalsoadoptedthistheory.

17 Define Ownership. Discuss the various kinds of ownership.

Distinguishbetweenpossessionandownership.
INTRODUCTION:Ownershipislinkedwithpossession.Possessionis
the first stage of ownership. It means for ownership possession is
necessary. Possession and ownership both are two sides of the same
coinandonecannotexistwithouttheother.
Ownershipgivesthefullrightoverthething.Ownershipisultimateand
finalrightfordisposingtheproperty.Itmeanstotransferthatpropertyin
anyway.Ownershipisarelationshipbetweenthepersonandthething.
For ownership there must be a thing and the owner of thing. The
conceptofownershipwasabsentintheancientsociety.Therewasalso
no concept of possession too. Slowly and slowly as the society
developed the concept of possession also developed. The idea of
ownership came into existence. So this way after the progress of the
conceptofownershipthepersonbecamethefullownerofhisproperty.
DEFINITION:Beforetodefinetheownershipwehavetodiscussthe
variouskindsoflaw:
RomanLaw:AsevidentfromhistorythattheRomanLawwasthefirst
law in the world. It is considered the ancient law. All concepts of law
begin from the period of Roman society. Under the Roman Law the
concept of ownership is defined in the form of dominion that means to
havetherightcontrolofathing.Theconceptofownershipdevelopedin
the form of a right over the thing. Dominion is distinguished from
possession. Possession means to have possession over a thing but
dominosmeanstohavearightoverthething.
HINDULAW:HinduLawisalsoconsideredasthemostancientlawin
the world. In Hindu law the concept of ownership also has been
discussed.InHinduLawownershipissaida,AccordingtoHinduLaw
ownershipmeansarelationshipbetweenpersonandathing.Personis

calledownerandathingiscalledproperty.Meansapropertywhichisin
thecontrolofapersonishisproperty.
VIEWSOFMODERN&WESTERNJURISTS
The western jurists like Austin, Holland and Salmond defined the
conceptofownership.
Austin:Accordingtohimownershipistherelationshipwhichexistsin
between the person and the thing. This definition resembles with the
definitionunderHinduLaw.Austinsaysthatinownershipapersonhas
thefollowingrelationswiththething.
1.IndefiniteUse:Itmeanstousethatthinginanywaywhethertouseit
foragricultureorforindustry,residencebutthereisarestrictionthatone
cannotuseonespropertyinsuchawaywhichdestructiveintheliving
ofothers.
2.Unrestricted power of dispose: Means to transfer that thing or
property according to his choice. He can sale or to mortgage even to
giveonleaseorgifttoanybody.Butunderart.19(2)oftheConstitution
reasonable restrictions can be imposed by the Govt., in the interest of
publicpolicies.
3.Unlimiteddurationoftime:meanstherightoftransferofhisproperty
willremainalwaysinthenameofowner.Afterhisdeathitwillgotohis
heirssothereisnotimelimits.
4.Domination : It means to have control over the thing. For this
purpose both elements of possession corpus and animus should be
there.Iftheconditionsaretherebetweenpersonandthethingandthen
thepersonisownerofthatthing.
AccordingtoHolland:Hedefinedtheownershipasaplenarycontrolofa
personoverathing.Thedefinitionalsocontainsthefollowingconditions
:
1.Possession2.Enjoyment3.Disposal.
According to Salmond : Salmond defines ownership as a relationship
between person and the right. Right means to have a thing under
possession.Thingalwaysrepresentsphysicalobjects.Butrightalways
representsathingwhichisnotinphysicalexistencelikecopyrightand
allowances are always thing which are called property. And which are
notinphysicalexistence.
Salmondhasincludedallthoserightwhicharepropertyintheconcept
of ownership. In view of the above it is learnt that Austin and Holland
definitions are not complete. But salmond is completely perfect in his
definition.
KINDSOFOWNERSHIP
Therearevariouskindsofownershipwhichareasunder:
1. Corporal and Incorporeal ownership: Corporeal and incorporeal
ownership also called material and immaterial ownership. Corporeal
ownership is the ownership of a material object and incorporeal
ownershipistheownershipofaright.Ownershipofahouse,atableora
machineiscorporealownership.Ownershipofcopyrightapatentora
trademarkisincorporealownership.
2. Sole and coownership: The general principal of ownership is that
vestedinonepersononly.Butsometimesitvestedinmanypersonsin
otherwordstwoormorepersonhavetherightofownership.Ifonlyone
personhaverightofownershipthatknownassoleownershipandwhere
two or more persons have the right of ownership then know as co
ownership.
3. Vested and contingent ownership: Ownership is either vested or
contingentitisvestedownershipwhenthetitleoftheownerisalready

perfect.Itiscontingentownershipwhenthetitleoftheownershipisyet
imperfect.
4. Absolute and Limited ownership: means owner is one in whom are
vestedalltherightsoverathingtotheexclusionofallorwhenaperson
hasanabsoluterightoverhispropertyknownasabsoluteownership.
When there are limitations on the user duration or disposal of rights of
ownershiptheownershipislimitedownership.
5.LegalandEquitableownership:Legalownershipisthatwhichhasits
origin in the rules of common law. Equitable ownership is that which
proceeds from the rules of equity. Legal right may be enforced in rem
butequitablerightsareenforcedinpersonam.
CONCLUSION
The ownership is a relationship between person and the right. These
rights include the right of possession enjoyment and disposal of the
property.IfallconditionsaretherethenitiscalledOwnership.
DIFFERENCEBETWEENPOSSESSION&OWNERSHIP
POSSESSION
OWNERSHIP
1.Possession is a primary stage of ownership which is in fact. 1.
Ownershipisinright.
2.Possession does not give title in the property defacto exercise of a
claims 2. While in ownership it gives title in the property dejure
recognisation.
3.Possession is a fact. 3. Ownership is a right and superior to
possession.
4.Possession tends to become ownership. 4.Ownership tends to
realizeitselfintopossession.
5.Possession dominion corpus and animus are necessary.

5.Ownershiptheyarenotnecessarybecauselawgivesfullrights.
6.Transferofpossessioniscomparativelyeasier.
7. Possession is nine points of law.6.Ownership most of the cases
involvesatechnicalprocessi.e.conveyancedeedetc.
7.Ownership always tries to realize itself in possession i.e. complete
thing.

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

importanceasasourceoflawandalsocomparewithprecedents.
INTRODUCTION: Custom is a conduct followed by persons in the
society.Customisconsideredasthemostancientandmostimportant
sourceoflaw.Sourcemeansoriginofathing.Itisalsoconsideredthat
law basically comes out from customs. In the past customs were
prevailingforthecontroloverthesociety.
Austin was the first person who discarded the value of the
custom.Butthehistoricalschoolagaingavetheimportancetocustom.
The sociological school also gives importance to law with relation to
society.
Inthemoderntimestheprecedentsi.e.Judgemadelawand
legislationhavebecomeoverpoweredtothatofcustoms.Asinacase
ofMaduriv/sMotuRamLinga.Itwasheldthatevencustompowerover
thestate.
VARIOUSLEGALSYSTEMSRECOGNIZEDCUSTOMASASOURCE
OFLAW.

Thefollowingsarethesystemswhichrecognizedcustomasasourceof
law:
1.RomalLaw:RomanLawisknowntobetheoldestoneintheworld.
Thislawismainlybaseduponcustomsofthesociety.Thosecustoms
whichwerereasonablecontinuedthemaslawbytheRomanjurists.
2.HinduLaw:Hindulawisalsotobeconsideredasthemostancient
law.HissourcesareVedas,SutrasandSmiriiesandtheseweremainly
basedoncustoms.AllpersonallawsofHinduarebaseduponcustom
thatiswhyLordWarrenHastingsandLordCornwallisdidnotattackon
customsofIndians.
ManusaidOneshouldfollowthegivenpathoftheirancestors.Thiswas
nothingbutthereorganizationofcustoms.
3.Mohammedan: Particularly ignored customs for the purpose of law.
DuringthMuslimperiodinIndiatheircustomswereprotectedbyState.
The British rulers in India also protected customs and personal laws
which were based upon customs. The traditions which were not
opposed by the prophet Mohammedanwererecognizedaslaw.Inthis
way we can say that customs in Mohammedan law also played an
importantrole.
4. English Law : Which is known as common law and in the shape of
unwritten and based upon customs and conventions. Customs which
werereasonableandnotagainstthepublicpolicieswererecognizedas
lawunderEnglishLaw.
AccordingtoPollock,ThecommonLawiscustomarylaw.Black
stolcommonincludeswrittenlawandunwrittenlaw.Thewrittenlawis
based upon the general customs. In this way English law also gave
importancetothecustomsasasourceoflaw.
CLASSFICATIONOFCUSTOMS
Mainlythecustomsareoffourtypes:
1.National Customs : Those customs which are related to the nation
andareapplicableonthecountryspeople.
2. Local Customs : Those customs which are related with a particular
locality.
3.FamilyCustoms:Thosecustomswhicharerelatedwithafamilyand
haveapplicationonaparticularfamily.
4. Conventional Customs : These customs based upon conventions
e.g.abiggerpartofEnglishLawbasedoncustomsandconventions.
ESSENTIALSOFCUSTOMS
1. Antiquity : It means oldness of the customs. The customs must be
ancient. There is no limit of time for the antiquity of custom. In India
thereisnofixationofsuchtimelimit.
2.Reasonable:Thecustomsmustbereasonable.Itshouldnotbeun
reasonableandagainstthepublicfeelings.
3.Followed:Customsmustbefollowedbythesociety.Thereshouldbe
nocontradictioninobservingcustoms.
4. Continuity : Customs must be continuing from the time it was
recognized as law. There should not be any break or interruption. If
thereisbreakforsometimesitdoesnotmeanthattherightthinghas
beenlost.
5.Certainty:Customsmustbecertaininitsnature.
6.Consistency:Thereshouldnotanyconflictionforitsreorganization
asalaw.
7.Peacefulenjoyment:Custommustbeenjoyedpeacefullyforalong
timewithoutandisturbances.
8.Immorality:Customsshouldnotbeagainstthemorality.

9.PublicPolicy:Itmustnotbeagainstthepublicpoliciesoragainstthe
willofpeople.
10. Not against the State of Law: Customs should not override the
legislation.Itshouldnotbeagainstthelawoftheland.
WHENDOESACUSTOMBECOMELAW.
ANALYTICAL VIEW: AustinandGrayarethesupportersofanalytical
school. They say that a custom becomes law when it is recognized by
thesovereigninthesenseofpositivelawonly.
It means that if a custom has been accepted or adopted or
recognized by the sovereign then it will become a law otherwise there
willbenovalueofthecustominjudicialsystemofthesociety.
HISTORICALSCHOOL:SovereignasthesupporterofHistoricalschool
says that custom is a main source or base of law He says that
consciousnessofthevolkgiestisthemainsourceoflaw.
CustomissuperiortoJudgemadelaworlegislation.The
legislation while making a law recognizes the customs of the society.
The courts also while giving the decisions recognized the customs
prevailinginthesociety.
CONCLUSION
Custom occupies an important place as a source of law even to these
daysbecausemostofthematerialcontentsofdevelopedsystemoflaw
havebeendrawnfromancientcustoms.Customisoneofmostfruitful
sources of law. According to Analytical school a custom when
recognizedbyStateorsovereignbecomeslaw.AccordingtoHistorical
school when state or courts make law they give importance to the
customs. So both of the view are combining to each other and are
correctforacustomassourceoflaw.

19 Rights and duties are corelative. Discuss. OR Distinguish between

claims liberties powers and immunities also explain the correlative of
each.
Introduction: Right and duties are the very important element of law.
ThetermRighthasvariousmeaningssuchascorrect,oppositeofleft,
opposite of wrong, fair, just and such like other expression etc. But in
legal sense a right is a legally permissible and protected action and
interestofamangrouporstate.
Definition
According to Austin : Right is a standard of permitted action within a
certainsphere.Hefurtherdefinerightisapartyhasarightwhenothers
areboundstoobligesedbylawtodoornottodoanyact.
According to Salmond : It is an interest recognized and protected by
theruleofjustice/law.
AccordingtoGray:Rightisnotaninterestitselfbutitisthemeansby
whichtheenjoymentofaninterestinsecure.
AccordingtoProf.Allen:Theessenceofrightnotalegalguaranteein
itselfbutalegallyguaranteedpowertorealizedaninterest.
ELEMENTSOFRIGHTS
1.Subject:Thesubjectofarightisconcernedwiththepersonlegaland
artificial or a group who legally is entitled to seek the privilege and
benefit of against other. In other words the subject is that the person
whomtherightisvest.
2.Content:Thisisthesubjectmatteroftherightalongwiththenature
andlimitsofthatright.

3.ThepersonofIncidence:Itmeansthatthepersonuponwhomfalls
thecorrectiveduty.
OBJECT: The object of the right may be material or immaterial
determinateorindeterminate.
CHARACTERSTICSOFRIGHTS
1. RIGHT is a general o specific type of claim, interest or such like
expressionofthepeopleinaState.
2. The right is duly recognized and approved by the State through its
agencies.
3. A legal right is expressed a deep correlation with a corresponding
duty,liabilityordisabilityonthepartofthoseagainstwhomsuchrightis
conferred.
4. A right may has its independent existence and type of assemblies
withotherrights.
5. Basic philosophy or the fundamental concept of right remains
permanentbutwiththetimebeingitissubjectedtoincorporatetheallied
changedinit.
6. The realization and scope of a legal right depends upon the type of
societyandthenatureofinterest.
THEORIESOFRIGHTS:Therearetwomaintheoriesoflegalright:
1.Willtheory:Thewilltheorysaysthatthepurposeoflawistogrant
theindividuali.e.selfexpressionorpositivedeclaration.Thereforeright
emergesfromthehumanwill.ThedefinitionofrightgivenbyAustinand
Holland,thatthewillisthemainelementsofaright.Pollocksays,
thatrightintermofwill.
2. The Interest Theory: Interest is the basis of right. A great german
jurists defines about the legal right as, A legally protected Interest.
AccordingtohimthebasisofrightisInterestandnotwill.
Thedefinitionoflawisintermofpurposethatlawhasalwaysa
purpose.Incaseofrightthepurposeoflawistoprotectcertaininterest
andnotthewillsortheassertionsofindividuals.Theseinterestsarenot
createdbytheStatebuttheyexistinthelifeofthecommunityitself.
TYPESOFRIGHTS
1. Primary and secondary Right: They are known by Antecedent and
remedialrightsnamesalso.
2. Perfect and imperfect Right: Means which has a correlative positive
duty.
3.NegativeandPositiveRight:Positivemeansrelatedtodutywhereas
negativemeansnotrelatedtoduty.
4.RightinRem&Personam:
5.RightisrepropriaandRightisRealiena.
6.Vestedandcontingentright.
7.PropriatoryandpersonalRight.
8.Equitableandlegalright.
Duty
Introduction: The term duty may be used in various form as an
obligation, as responsibility and accountability. There are some scolers
whodefineDutyasfollowing:
DefinitionsofDuty:AccordingtoGray,Dutyistheactoforforbearance
which an organized society used to impose on people through state in
order to protect the legal right of other. According to Rose Duty is the
Predicament of person whose act are liable to be control with the
assistance of the State. As per Hoffield The duty is the correlative of
Right.

Classification of Duties: Duty classified into two categories. There are

asfollows:
Duties
Positive And Negative Duties
Duties

Primary and Secondary

1.PositiveandNegativeDuty:Apositivedutyimpliessomeactonthe
part of person on whom it is imposed. Negative duty implies some
forbearanceonthepartofthepersononwhomitisimposed.
2. Primary and Secondary duty: A primary duty is that which exists
perse and independent of other duty. A secondary duty is that duty
whosepurposetoenforcesomeotherduty.
Essentialsofduty:Therearefollowingessentialofduty:
a. Itmaybedependentandindependent.
b. It consists an obligation on the part of someone and confirm a
privilegeuponother.
c. Theconceptofdutyisaffirmedandprotectedbythelawoftheland
whereitexist.
d. Theconceptofdutiesisachangingprocesswhicharisesfromtime
totime,placetoplaceandcircumstancestocircumstances.
e. Dutyinmostofthecasescreatesanabsenceofrightagainstsome
person.
f. Dutymaybefundamental,legalormoralincharacter.
RelationbetweenRightandDuties:Thefollowingobjectsdescribesthe
correlationbetweenrightandduties:
i. Arightisindispensiblewithoutanyduty.
ii. Adutyandrighthasseparateandindependentexistence.
iii. Arightprocreatesdutyandviceversa.

OR Yourchoice

Even though right and duties are opposite points but there is a great
relation between two relations. The right and duties has a relation of
FatherandChild,HusbandandWifebecausethereisnofatherwithout
child and no wife without husband. So right and duties cannot be
separatedformeachother.
Right/Claim
Libertyorprivilege
Power
Immunity
Duty

Noclaim

Liability Disliability
(Juralopposites)

(Juralcorrelative)
Conclusion:Rightanddutiesarecorrelativeofelementsofeachother.
Thereisnorightwithoutdutyandthereisnodutywithoutright.These
arerecognizedbylawformaintainingthesocietyverywell.
20Definelawasaninstrumentofsocialchange.Whatspecialchanges
havebeenbroughtoutbylaw?
INTRODUCTION: Law as a command as it introduces subjective
considerationswhereasthelegaltheoryisobjective.Notionofjusticeas
anessentialoflawbecausemanylawsthoughnotjustmaystillcontinue
as law. Science as system of knowledge or a totality of cognitions
systematically arranged according to logical principles. The laws of
natural science are capable of being accurately described determined
anddiscovered.Alawisvalidbecauseitderivesitslegalauthorityform
the legislative body and the legislative body its own turn drives its

authorityfromConstitutionofIndia.Theaimoflawasofanyscienceis
toreducechaosandmultiplicitytounity.
According to Kelson, law is normative science but law norms may be
distinguishedfromscience.
DefinitionofLaw:whileemphasisingVolksgeistastheessenceoflaw,
Savigny justified the adoption of Roman Law in the texture of German
Lawwhichwasmoreorlessdefusedinit.Lawhasunconsciousorganic
growth,itfoundandnotartificiallymade.Lawisnotuniversalinnature.
But like a language it varies with the people time and need of the
community. With the growing complexity of law the popular
consciousness as represented by lawyers who are nothing but the
mouthpeaceoftheConsciousness.
LawasaninstrumentofSocialChange:Thefollowingaretheelements
which have been helping the law to be an instrument who bring the
socialchanges:
1. A social Utilitarian: The system develops aspects of Austinian
positivism and combines them with principles of Utilitarianism as
establishedanddeveloped.
2. Law is the result of Constant struggle: According to Ihering the
developmentoflawlikeitsoriginisneitherspontaneousnorpeacefull.
Itistheresultofconstantstrugglewithaviewtoattainpeaceandorder.
Lawistheguaranteeoftheconditionsoflifeofsociety.
3. Law is to serve for social purpose: As a result of social changes
comes through law that is social purposes comes in conflict with the
duty of the State is to protect and further social purposes to suppress
thoseindividualpurposeswhichclashwithit.Therefore,lawiscoercion
organisedinasetformbytheState.
4. Law protects Social Interest: Law is a such type of instrument
whichprotectsthesocialinterestofthepeople.AccordingtoBentamit
isthepersuitthepleasureandavoidanceofpain.
5. Law is to found in social facts: AS per Ehrlich, That the law of
communityistobefoundinsocialfactsandnotinformalsourcesoflaw.
He says at present as well as any other time the centre of gravity of
legal development lies not in legislation, nor in juristic science, nor in
judicialdecisionbutitliesinsocietyitself.Itisasocialchanges.
6. Livinglawisthefactthatgovernsociallife:Theessentialbodyof
legalrulesisalwaysbaseduponthesocialfactsoflawandthefactsof
law which underline all law are usage, domination, possession and
declarationofwill.
7. LawaccordingtotherequirementofSociety:Itmeansthatlawina
societyshouldbemadeandadministeredwiththeutmostregardtoits
necessity.
8. Lawalsotoservethisand:Lawistherulewhichmenpossessnot
by virtue of any higher principle whatever, good, interest or happiness
butbyvirtueandperforceofthefactsbecausetheyliveinsocietyand
can live in society. This is because of to use the law as an instrument
whichbroughttheSocialChanges.
Conclusion:Thecontributionoflawinthesocialchangesisagreatand
itsapproachismorescientificandcomprehensive.Thestudyoflawin
socialcontextandemphasizesitscloserelationwiththelifeofsociety.
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23comments:
Unknown 18September2015at06:56

Glorytothelaw!
andtoafineeffortbyyou:>
Reply

Unknown 13October2015at02:59
youSavedmeformyMidTerm..:)Thanku...
Reply

SagarSaxena 13December2015at08:47
welldonebro.goodjob.
Reply

SWATANTRADUBEY 19January2016at22:21
nicenote
Reply

MugishagweJabiri 21January2016at09:52
Ureallyexpertinjurisprudencebro.
Reply

anilkrjangra 20February2016at06:22
Verygoodnotes
Reply

anilkrjangra 20February2016at06:23
Verygoodnotes
Reply

Unknown 4March2016at03:43
Thiscommenthasbeenremovedbytheauthor.
Reply

LekiChozom 4March2016at03:50
Nicenote.Itisuseful.
Reply

NanditaGogoi 20March2016at01:11
plzcanyougivethedifferencebetweennaturalschoolandanalyticalschool??
Reply
Replies
subashbhandari 31July2016at22:16
Naturalschool
JeremyBenthamisfatherofnaturalschoolofjurisprudenceandaswellas
jurisprudence also..... According to this school law is already exit in order
tonatureofhumannature....Lawshouldfocusedonincreasinghappiness
of people and reducing sorrow or pain..... only that could of law is
acceptable to society and long lasting..... Like almost all laws are exit in
oursocietybynatureeventhosealllawarecantwritten....soitshouldbe
basedonmoralvaluesofhuman.....
AnalyticalSchoolofjurisprudence
Austin was father of Analytical school of jurisprudence and according to
hisphilosophylawiscommandofsovereign....Theiraremostly4thingsas
alaw
1.Command

2.sovereign
3.Sanction/punishment
4.Habit
Any authority that only can made law..... they should have sovereigen
powerandsomebodyiftheydisobeyorbreaktheruletheirisasystemof
punishment.....andthisschoolisfocusedofwhatlawisnotwhatoughtto
be......
critiques is their is no morality... what type of law should made..... the
sovereign could made law and also authority of punish in abandons of
law.....
theirmaybemistake...sorryforthat
subashbhadari
KathmanduNepal
Reply

Jr.Williams 16April2016at11:24
WhatexactlyisSociologicalJurisprudence?
PeoniaGuimaraesMachadoMartins
Reply
Replies
subashbhandari 31July2016at22:00
the sociological jurisprudence is the principle of law which describe and
focus that the origen of law is society and father of this school is rusco
pound who Germen philosopher...... According to this school law is not
madebutitissearchedinsocialcustoms....Thesocialcustomissourceof
lawandnotmadebypeopleinrecentdecade....likeinmiddleeastlawis
a part of muslim religion due to influence of religion most of law is
customary....andthecritiqueisthatifthesocietyassumingthebadritual
and social activities should they can be law or not ? And if a society is
blindlybelievingthereligionandsomeritualsthathadbeenhabitalthough
theycouldbetakenaslawornot....inmyview
Reply

BharatUgile 17April2016at07:42
veryniceattempttonarrateJurisprudence
Reply

AJAYMEENA 24May2016at06:09
Thanksalotbro
Reply

AdvocateChanderKalia 1June2016at03:14
Gudjob..Lotofhelpformyexamtomorrow..Thanks..
Reply

AdvocateChanderKalia 1June2016at03:16
Gudjob..Lotofhelpformyexamtomorrow..Thanks..
Reply

Unknown 1June2016at12:02
nicenotes>>>>>GoodJob
Reply

BabarBhatti 14July2016at07:02
Excellentefforts.....thanks
Reply

Reply

Unknown 10September2016at11:54
broyouremailid?
Reply

UshaKannangara 11September2016at10:20
Thankyousomuch.Veryhelpfulnotes.Blessyou!
Reply

Unknown 14September2016at01:43
Verygoodeffortdonebyyou,doushareurknowledgeforothersubject'sinlaw
Reply

devasishkumarsahoo 30September2016at07:54
whatarethefeaturesofstate
Reply

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