DR. N,K. Jayakumar of Jurisprudence.docx

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Ramkumar p.

Lectures in Jurisprudence

Second Edition

Dr NK Jayakumar

Professor and Head, Department of Law & Dean, Faculty of Law, University of Kerala

6988

—IP LexisNexis — Butterworths Wadhwa Nagpur



—U LexisNexis — utter!ort"s #ad"!a

Nagpur

This book is a publication of LexisNexis (ADivision of Reed Elsevier India Pvt Ltd

!"th floor# $uilding No !%# To&er'$# DL )*ber )it*# Phase'Il# +urgaon—!,,%%,# -ar*ana# India.

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4 Le3isNe3is (A division of Reed Elsevier India Pvt Ltd ,%%5

All rights including cop*rights and rights of translations etc. reserved and vestede3clusivel* &ith Reed Elsevier I ndia Pvt Ltd'o&ner of the LexisNexis

utter!ort"s #ad"!a Na$pur brand. No part of this publication 6a* be

reproduced or trans6itted in an* for6 or b* an* 6eans# electronic# 6echanical# photocop*ing# recording or other&ise# or stored in an* retrieval s*ste6 of an*nature &ithout the &ritten per6ission of the cop*right o&ner.

N7 8a*aku6ar# Lectures in Jurisprudence.

I9$N/ 12:':!':%;:'!;%'%

This book can be e3ported fro6 India onl* b* the publisher. Infringe6ent of thiscondition of sale &ill lead to civil and cri6inal prosecution.

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Pvt Ltd# )'@1# Ckhla Ind. Area# Phase'!# Ne& Delhi'!!%%,%..

The publisher shall not be liable for an* direct# conseuential# or incidentalda6ages arising out of the use of this book.

In case of binding 6istake# 6isprints# or 6issing pages etc.# the publishers entire



liabilit*# and *our e3clusive re6ed*# is replace6ent of this book &ithin one6onth of purchase b* si6ilar editionreprint of the book.

Printed and bound in India.



%re&ace

Nothing gives 6ore happiness to an author than a call fro6 the publisher infor6ing hi6that his book is sold out# and that a ne& edition is needed. Naturall*# I &as ver* happ*&hen Le3isNe3is infor6ed 6e that the first edition of this book &as about to be sold out#and a ne& edition &ould be reuired b* the beginning of ,%%5. It &as also a pleasantsurprise to 6e# because the call ca6e 6uch sooner than I had e3pected—'infact# onl* !@6onths after the release of the first edition. That goes to prove that the book &as able togenerate a positive response fro6 the teachers and students of la& all over India.

urisprudence is not a sub8ect &hich changes fast as is the case &ith so6e other legalsub8ects. The i6pact of 8uristic theories# 8udicial decisions# or legislation on 8urisprudenceis an incre6ental and rather long ter6 process. Even &hen there is an i6pact# the author of a te3tbook 6eant for students thinks t&ice before deciding to burden students &ith the

ripples of such i6pact. -e &ould rather &ait patientl* to see &hether the ripples beco6ea strong &ave or slo&l* disappear# leaving no 6ark. That e3plains &h* &e have reprintsof books on 8urisprudence# &hich appeared 6an* decades back. 9o &hat 8ustifies a ne&edition hardl* &ithin t&o *ears of the appearance of the first edition of this bookF Theauthor does not clai6 that substantial changes or develop6ents 6ade a revisionnecessar*. No significant change has been 6ade in the contents# structure# or st*le of the previous edition. -o&ever# so6e chapters have been updated adding subseuentdevelop6entsG so6e other chapters have been re&ritten in order to 6ake the presentation6ore lucid# and to avoid repetition of ideas. In a fe& chapters glaring o6issions have been rectified. In all the chapters the 6istakes have been corrected so that the presentedition is# hopefull*# free fro6 6istakes. Cf course# 6an* 6ore aspects could have beenaddedG but I resisted the te6ptation because I &anted to retain the present siHe of the book. A bigger book &ould inti6idate 6ost students.

I got invaluable feedback fro6 teachers and students fro6 different parts of India.ost of the6 found the book dependable and# 6ore i6portantl*#



—IPJ LexisNexis*— ButterworthsWadhwa

—————————————— Nagpur

This book is a publication of LexisNexis (A Division of Reed

Elsevier India Pvt Ltd !"th floor# $uilding No !%# To&er'$#DL )*ber )it*# Phase'II# +urgaon'!,,%%,# -ar*ana# India.

Tel / 0 1! !," "22"""" a3/ 0 1! !," "22"!%%

4 Le3isNe3is (A division of Reed Elsevier India Pvt Ltd ,%%5

A! rights including cop*rights and rights of translations etc. reserved andvested e3clusivel* &ith Reed Elsevier India Pvt Ltd—o&ner of the LexisNexis

utter!ort"s #ad"!a Na$pur brand. No part of this publication 6a* be

reproduced or trans6itted in an* for6 or b* an* 6eans# electronic# 6echanical# photocop*ing# recording or other&ise# or stored in an* retrieval s*ste6 of an*nature &ithout the &ritten per6ission of the cop*right o&ner.

N7 a*aku6ar# Lectures in Jurisprudence.

I9$N/ 12:':!':%;:'!;%'%

This book can be e3ported fro6 India onl* b* the publisher. Infringe6ent of this condition of sale &ill lead to civil and cri6inal prosecution.

T*peset $*<ifK<hi.+raphics# A'!,@# Diishad )olon*# Delhi II%%1@.

@M if/ Pririr O* ' Rak6bBhs Pvt Ltd# )'@1# Ckhla Ind. Area# Phase'!# Ne&

Delhi'!!%%,%..

hi<<<Nor<8Die care and diligence has been taken &hile editing and printing this book. M

ftether>the author nor the publisher of the book holds an* responsibilit* for an*6istake

thar6a* have inadvertentl* crept in.

The publisher shall not be liable for an* direct# conseuential# or incidentalda6ages arising out of the use of this book.

In case of binding 6istake# 6isprints# or 6issing pages etc.# the publisher>sentire liabilit*# and *our e3clusive re6ed*# is replace6ent of this book &ithinone 6onth of purchase b* si6ilar editionreprint of the book.



Printed and bound in India.



%re&ace

Nothing gives 6ore happiness to an author than a call fro6 the publisher infor6ing hi6that his book is sold out# and that a ne& edition is needed. Naturall*# I &as ver* happ*&hen Le3isNe3is infor6ed 6e that the first edition of this book &as about to be sold out#and a ne& edition &ould be reuired b* the beginning of ,%%5. It &as also a pleasantsurprise to 6e# because the call ca6e 6uch sooner than I had e3pected—infact# onl* !@6onths after the release of the first edition. That goes to prove that the book &as able togenerate a positive response fro6 the teachers and students of la& all over India.

urisprudence is not a sub8ect &hich changes fast as is the case &ith so6e other legalsub8ects. The i6pact of 8uristic theories# 8udicial decisions# or legislation on 8urisprudenceis an incre6ental and rather long ter6 process. Even &hen there is an i6pact# the author of a te3tbook 6eant for students thinks t&ice before deciding to burden students &ith the

ripples of such i6pact. -e &ould rather &ait patientl* to see &hether the ripples beco6ea strong &ave or slo&l* disappear# leaving no 6ark. That e3plains &h* &e have reprintsof books on 8urisprudence# &hich appeared 6an* decades back. 9o &hat 8ustifies a ne&edition hardl* &ithin t&o *ears of the appearance of the first edition of this bookF Theauthor does not clai6 that substantial changes or develop6ents 6ade a revisionnecessar*. No significant change has been 6ade in the contents# structure# or st*le of the previous edition. -o&ever# so6e chapters have been updated adding subseuentdevelop6entsG so6e other chapters have been re&ritten in order to 6ake the presentation6ore lucid# and to avoid repetition of ideas. In a fe& chapters glaring o6issions have been rectified. In all the chapters the 6istakes have been corrected so that the presentedition is# hopefull*# free fro6 6istakes. Cf course# 6an* 6ore aspects could have beenaddedG but I resisted the te6ptation because I &anted to retain the present siHe of the book. A bigger book &ould inti6idate 6ost students.

I got invaluable feedback fro6 teachers and students fro6 different parts of India.ost of the6 found the book dependable and# 6ore i6portantl*#



Preface

readable. I e3press 6* gratitude to all of the6. A6ong those &ho offered constructiveco66ents# t&o persons deserve grateful ackno&ledge6ent— Prof (Dr D 9ebastian#for6er Dean# acult* of La&# )ochin Qniversit* of 9cience and Technolog*# and Dr A

Prasanna# Reader# +overn6ent La& )ollege# Thiruvananthapura6. I have tried toincorporate their suggestions in this revised edition.As in the case &ith the previous edition# I ackno&ledge 6* indebtedness to 96t I

9reelatha for her research support# and to 9hri C +eevarghese for his help in &ord processing. The Le3isNe3is tea6# as usual# &ere persistentl* engaged in the rather unpleasant task of re6inding 6e of deadlines. or their persistence and the 6eticulouscare in editing# I thank s Richa 7achh&aha and 9hri Arun $hanot.

Ackno&ledg6ents re6ain inco6plete unless I 6ention the encourage6ent and 6oralsupport &hich I received in abundance fro6 6* &ife 9usha and daughter alavika.

I repeat 6* reuest in the first edition of this book to all readers for their co66entsand suggestions.

," anuar* ,%%5 N7 a*aku6ar

a*apad6a6 @%;#Darsan NagarThiruvananthapura6' 51@%%@.

'(



%re&ace to )"e *irst Edition

hen one atte6pts to &rite a ne& book on a sub8ect in &hich a nu6ber of books arealread* available# he 6ust have so6e 8ustification for that. After agreeing to &rite a book on 8urisprudence for la& students in response to a reuest fro6 Le3isNe3is $utter&orths#I asked 6*self/ &h* a ne& bookF hat is &rong &ith the e3isting te3tbooksF As 6* probe progressed# I discovered that 8urisprudence &as the last choice of 6ost of the la&teachers and it &as at the top of the >hate list> of la& students. There is a co66unicationgap bet&een scholarl* books on 8urisprudence# and an average student of la&. The st*leand presentation of 6ost of the te3tbooks on the sub8ect fail to sti6ulate the interest of the students in the sub8ect and to convince the6 that 8urisprudence has its o&n relevanceand significance.

These prefator* re6arks are not intended to precede a tall clai6 that this book is

different fro6 all other te3tbooks and is free fro6 all the defects of other books. Cn theother hand# I 6ust confess that as the &ork of &riting this book progressed I realised thedifficult* in the task of &riting a te3tbook on 8urisprudence &hich is different andstudent'friendl* and does not also 6iss out an*thing i6portant. This book is the result of an earnest atte6pt to fulfil a ver* a6bitious and difficult task. To &hat e3tent have Isucceeded in that atte6pt is to be 8udged b* the teachers and students of la&.

The Report of the )urriculu6 Develop6ent )entre of the Qniversit* +rants)o66ission (!11%# &hich contains a 6odel curriculu6 for 8urisprudence# begins &iththe observation that &ithout a deep understanding of the concept of la&# neither legaleducation nor legal practice can be a purposive activit* oriented to&ards attain6ent of 8ustice in societ*. It further states that a course in 8urisprudence >should# pri6aril*# inductthe student into a real6 of uestions concerning la& so that he is able to live &ith their perple3it* or co6ple3it* and is driven to seek ans&ers for hi6self.> This ob8ective has been kept in 6ind &hile preparing the te3t of these lectures.



f

Preface to The irst Edition

I have taken special care to include topics &hich are not found in 6ost of the Indian books on 8urisprudence# especiall* critical legal studies# fe6inist 8urisprudence# post'6odern legal theor*# science# technolog* and la&# globalisation and la& etc. In the caseof other topics also I have tried to update the content. 9ince this is 6ainl* intended to bea te3tbook for students of the first'degree course of la&# it &as 6* endeavour to 6akethe presentation as si6ple as possible# &hile avoiding the perils of over si6plification. Itgoes &ithout sa*ing that the te3t of these lectures borro&s heavil* fro6 the sourcesenlisted in the bibliograph*.I 6ust gratefull* ackno&ledge 6* indebtedness to Prof 7+ Pillai# &hose e3pertise and

e3perience of teaching 8urisprudence for 6ore than three decades &as totall* placed at6* disposal. Prof Pillai has read the entire 6anuscript and 6ade 6an* useful co66entsand suggested changes &hich# a6 s3&,\«Nt <v<3<<<<<N<< in the content of

these lectures. 96t I 9reelatha# &ho &orked as 6* research assistant Cil t"is pro8ect#helped 6e &ith the necessary research support &ithout &hich this book &ould not have6aterialised. s $indu also rendered useful help in preparing the draft of so6e of thechapters. s R Neethu# a student of la&# &as patient enough to read the &hole6anuscript and to offer valuable suggestions fro6 a student>s point of vie&. 9hri C+eevarghese helped in &ord processing. I o&e a deep debt of gratitude to all of the6.

The editing and production of Le3i3Ne3is $utter&orths# under the d*na6icleadership of s A6bika Nair and s Pankhuri 9hrivastava# deserves all the credit# notonl* for the editing and production ualit* but also for keeping 6e freuentl* under pressure# &ithout &hich this book &ould never have seen the light of the da*. inall*# I6ust place on record 6* appreciation for the e6otional support given b* 6* &ife9usha and daughter alavika.

I place this book before the students and teachers of la& in all hu6ilit*# full*conscious of its i6perfections# &ith the fervent hope that their co66ents andsuggestions &ould definitel* help in i6proving the ualit* and utilit* of the book in itsne3t edition# &hich# hopefull*# 6a* be needed in the not too distant future.



!! une ,%%"

a*apad6a6@%;# Darshan Nagar Thiruvananthapura6 51@ %%@

N7 a*aku6ar



+ontents

Preface &

Preface to The First Edition vii Contents ix TableofCases xvii

%,R) ( L,#- N,)URE ,ND SUR+ES

Lecture / La!- (ts Nature and *unctions ;

eaning of urisprudence "The Idea of La& "unctions of La& 2

La& and oralit* 1law as Social )ontrol !"Territorial Nature of La& !@La& and act !5

Lecture , (mportance o& Jurisprudence /9

eaning and 9cope of urisprudence !1)o6parative La& ,"

Relevance in -istorical and Philosophical Legal Research ,5Qnderstanding and I6proving National La& ,2

Develop6ent of International Relations ,:Qnification of La& ,1)o6parative La& as an Autono6ous $ranch of Legal 7no&ledge ;%a8or +lobal Legal 9*ste6s ;%

Ro6ano'+er6anic a6il* ;!)o66on La& a6il* ;!a6il* of 9ocialist La&s ;,

Lecture ; Sources o& La! (- Le$is0ation ;;

Introduction ;;





)ontents

)onfor6it* &ith 9tatute La& 55Cbservance as of Right 55I66e6orial Antiuit* 55

+eneral )usto6 of the Real6 52)usto6 and Prescription 52

%,R) (( L,#- )2ER(ES ,ND ,%%R,+2ES

Lecture 6 ,pproac"es to La! (- 2istorica0 ,pproac" 3/

Cvervie& 2!)o66ents on !ol"s#eist 2;Anthropological Approach 2 @Dialectical Interpretation 22

$iological Interpretation 2:Racial Theor* of La& 2:Leadership Principle 2 :Racial Principle 21

+ierke/ A -istorian &ith a 9ociological Perspective 21

Lecture 3 ,pproac"es to La! ((- Economic ,pproac" 8/

ar3ist Theor* :,Doctrine of Econo6ic Deter6ination of La& :,Doctrine of )lass )haracter of La& :,

Doctrine of Identit* of La& and 9tate :,Doctrine of ithering A&a* of La& and 9tate :;Econo6ic Anal*sis of La& :2

Lecture 8 ,pproac"es to La! (((- Socio0o$ica0 ,pproac" 94

9ocial Crigins of La& and Legal Institutions 1;I6pact of La&s on 9ociet* 1"Task of La&s in 9ociet* 1@

Individual Interests 12Public Interests 1:9ocial Interests 1:

)riteria to Test alidit* of La&s !%!9ociological urisprudence and 9ociolog* of La& !%;

Lecture 9 )"eories o& La! (- Natura0 La! /51

Influence of Natural La& Ill



xi



)ontents

Qnited 9tates of A6erica... IllEngland !!,India !!,

Revival of Natural La& !!@

Lecture !% Theories of La& II/ Legal Positivis6 !!2

Austin !!:)o66and !!:9overeign !!1Theor* of 9overeignt* !,!

-art !,5

Lecture !! Theories of La& III/ Pure Theor* of La& !;;

Lecture !, Theories of La& I/ Legal Realis6 !;1

A6erican Realis6 !;19candinavian Realis6 !""

Lecture !; odern Trends and Theories !"2

)ritical Legal 9tudies !"2Post'odern Legal Theor* !@,e6inist urisprudence !@59cience# Technolog* and La& !5%+lobalisation and La& !5;

PART III LA AND Q9TI)E

Lecture !" ustice !51

Principle of Reciprocit* !2%ust 9avings Principle !2%ustice/ Indian Perspective !2;

Lecture !@ Ad6inistration of ustice !2@

)ivil and )ri6inal ustice !2@)ri6inal ustice !22)ivil ustice !:%9econdar* unctions of )ourts !:!Alternative ethods of Dispute Resolution !:5



3ii



+ontents

%,R) (' ELEEN)S * L,#

Lecture /6 Ri$"ts and Duties /9/

Rights !1!Duties !1;Ele6ents of a Legal Right !1@Different eanings Cf Right !12

Right in the 9trict 9ense or tricto enso !12Libert* or Privilege !1:Po&er !1:I66unit* !11

-ohfeld>s Anal*sis of Rights ,%%)lassification of Legal Rights ,%"

Perfect and I6perfect Rights ,%"Positive and Negative Rights ,%@Real and Personal Rights or Rights in Re6 and Rightsin Persona6 ,%@

Jus ad rem or a Right to a Right ,%5Proprietar* and Personal Rights ,%5Rights in re propria and Rights in re aliena ,%2Principal and Accessor* Rights ,%:Pri6ar* and 9anctioning Rights ,%:Legal and Euitable Rights ,%:ested and )ontingent Rights ,%1

Theories on the Nature of Rights ,%1ill or )hoice Theor* ,%1Interest or $enefit Theor* ,!%D&orkin>s Theor* of Rights as Tru6ps ,!!

unda6ental Rights ,!!unda6ental Duties ,!, Natural Rights and -u6an Rights ,!;

Lecture /3 !ners"ip 7/3

Definitions ,!1Indefinite in Point of Qser ,!1

Qnrestricted in Point of Disposition ,!1Qnli6ited in Point of Duration ,,%7inds of C&nership ,,!

)orporeal and Non'corporeal C&nership ,,!9ole C&nership and Duplicate C&nership ,,!C&nership as a 9ocial )oncept ,,"

xiii





)ontents

Lecture /8 %ossession 773 Le$a0

Definitions ,,: <

$nimus Possidendi ,,: Lecti

%orpus Possessionis ,;!Relation of the Possessor to other Persons ,;! estRelation of the Possessor to the Thing Possessed ,;" Acts

7inds of Possession ,;@ Agre)orporeal and Incorporeal Possession ,;@ Uediate and I66ediate Possession ,;5 r f

Duplicate or )oncurrent Possession ,;2 u+ecti

Adverse Possession ,;2 U <Acuisition of Possession ,;2odes of Acuisition ,;: U)o66ence6ent and )ontinuance of Possession ,;1 S

Relation $et&een Possession and C&nership ,;1)onstructive Possession ,"%Possessor* Re6edies ,"!

Lecture /9 %ersons 74 oi

Nature of Legal Personalit* G ,";)orporations ,"@

Persons in a )orporation ,"@Acts and Liabilities of a )orporation ,"5Qnincorporated Associations ,"2 8<.Qses and Purposes of Incorporation ,"2

Theories of Legal Personalit* ,": 9oliPurpose Theor* ,":Theor* of Enterprise Entit* ,":9*6bolist or $racket Theor* ,"1-ohfeld>s Theor* ,"1 9ot7elsen>s Theor* ,"@iction Theor* , @:)oncession Theor* ,@tRealist Theor* ,@f

An Evaluation ,@Proble6s of )orporate Personalit*

Lifting the eil of )orporate Personalit* ,@I6portance of Incorporation ,9tate as a Legal Person ,@!Legal 9tatus of Ani6als ,8TLegal 9tatus of The Deceased ,!

xi:





)ontents

Legal 9tatus of Qnborn Persons ,@:

Double )apacit* and Double Personalit* ,@1

Lecture 75 )it0es 76/

estitive acts ,5,Acts in La& ,5;Agree6ents ,5"

)lasses of Agree6ents ,5@

Lecture 7/ %roperty 769

eaning ,517inds of Propert* ,2%

C&nership of aterial Things ,2%ovable and I66ovable Propert* ,2! Situs of Right ,2;Rights in re propria in I66aterial Things ,2;Rights in re aliena or Encu6brances ,2"

odes of Acuisition ,22Possession ,22Prescription ,2:Agree6ent ,21Inheritance ,:%

Lecture 77 ;0i$ations 784

9olidar* Cbligations ,:@9everal ,:@oint ,:5oint and 9everal ,:5

9ources of Cbligation ,:2)ontractual ,:2Delictal ,::Vuasi'contractual ,::Inno6inate ,:1

Lecture 74 Lia;i0ity 79/

Re6edial Liabilit* ,1!I6perfect Duties ,1,Irrevocable rongs ,1,Cther Re6edies ,1,





)ontents

Penal Liabilit* ,1,Acts ,1;

Positive and Negative Acts ,1;

Internal and E3ternal Acts ,1;Intentional and Qnintentional Acts ,1;)onstituents of an Act ,1"T&o )lasses of rongful Acts ,1"

Damnum ine n'uria ,1@ens Rea ,1@alice and ens Rea ,15

E3e6ptions fro6 Liabilit* ,1: Negligence ,11Dut* to Take )are ;%% Ashb*v (

9tandard of )are ;%!

Absolute Liabilit* ;%,istake of La& ;%,istake of act ;%; g'.<

$ccident )*+ rid#avH,

icarious Liabilit* In )ivil La& ;%@ $ro&n v$osicarious Liabilit* In )ri6inal La& ;%5

Lecture ," La& of Procedure ;%2 )art&righn

9cope of La& ;%2 I

Evidence ;%: Dai6ler)o#

aluation of Evidence ;!% Rubber ))onclusive Proof or )onclusive Presu6ptions ;!%)onditional or Rebuttable Presu6ptions ;IdInsufficient Evidence ;!! El&es v $rigE3clusive Evidence # ;!! E9Na6bc No Evidence ;!!

Production of Evidence ;!!)ioIakNathi

# a88 +reat NorthJi;0io$rap"y 4/.

-annah v Pa-industan +



3vi



)a;0e o& +ases

A

Ashb*v hite# !:! $

$engal I66unit* )o Ltd v 9tate of $ihar# @@$i8oe E66anuel v 9tate of 7erala# !"% $ridges v -a&kes&orth# ,;; $ro&n v $oard ofEducation# !!!

+

)art&right v +reen# ,;% D

Dai6ler )o v )ontinental T*re and Rubber )o# ,@;

E

El&es v $rigg* +as )o# ,;;

E9 Na6boodiripad vTN Na6biar# :2

+

+olak Nath v 9tate of Pun8ab# @: +teat Northern Rail&a* v 9unburst Cil Refining )o# @:

-

-annah v Peel# ,;;-industan )oca )ola $everages (P Ltd v Peru6att*# ,2,

J

u6bo )ircus v Qnion of India# ,@2

7

7ailash )hand 9har6a v 9tate of Ra8asthan# @1 7eshavananda $harati v 9tate of 7erala# !,,

L



Linkletterv alker# @: London )orp vApple*ard B Anor# ,;; London Tra6&a*s vLondon )ount* )ouncil# @@

anaging Director v $ 7arunakar# @1 err* v +reen# ,,1 uller v 9tate of Cregon# ,:

N

Nara*anas&a6* v E6peror# ,12 NRNairv Qnion of India# ,@2

%

Peoples Pleasure Park )o v Rohleder# ,@; Peru6att* +ra6a Pancha*at v 9tate of 7erala# ,2, Pless* v urguson# !!!

VVueen E6press v Ra6akka# ,12 R

RvAsh&ell (A# ,;% Rv Dudle*# ,1:



Table of )ases

Rv -udson# ,;%R v ental -ealth Revie& Tribunal

Noah and East London Region# ;2 Rv Prince# ,11# ;%" R v 9ecretar* of 9tate forTransport# e3 p

actorta6e# ;5 Rv 9enior# ,@1 R*lands v letcher# ;%"

S

9a88an 9ingh v 9tate of Ra8asthan# @5# @: 9akshiv Qnion of India# !@5 9alo6on v9alo6on B )o# ,@, 9hankari Prasad v Qnion of India# @: 9ha& v DPP# !,9outh 9taffordshire ater&orks )o v

9har6an# ,;; 9tate of +u8arat v irHapur oti 7ureshi7sasab8a6at# @5 9tate of aharashtra v +eorge# ;%;

T

Tall ale Rail&a* )o v A6alga6ated9ociet* of Rail# ,@@ Tho6son v The London )ount*)ouncil# ,:5 Tukara6v 9tate of aharashtra# !@2

ishakav 9tate of Ra8asthan# ,!"

alker v +reat Northern Rl* of Ireland# ,@1 illis v $addele*# @; urHel v -oughton ain -ouseDeliver* 9ervice Ltd# ,@"



3viii



%,R) /

La&/ Nature and 9ources

Lecture /

La!- (ts Nature and *unctions

hat is la&F If this uestion is posed to a la*6an# the first i6ages that co6e to his 6ind6a* be those of a courtroo6# a 8udge# a la&*er# a police6an# or an accused person. This

is natural because ordinar* persons al&a*s think of la& in ter6s of dispute settle6ent#and 6aintenance of la& and order.If *ou pose the sa6e uestion to a la&*er or a 8udge# he 6ight think of a statute# a code#

or a 8udicial decision. This is again natural because# since these are the sources fro6&hich the la& is deter6ined and# therefore# the ver* 6ention of the &ord >la&> brings tohis 6ind the all too fa6iliar sources of la&.

I have asked the uestion >&hat is la&> to hundreds of la& students over a period of three decades. ost of the6 consider la& as a regulator* 6echanis6# a code of conduct#or a set of binding nor6s governing hu6an behaviour in societ*. -o&ever# so6e of the6do think of la& as an instru6ent of social change# or as a 6eans to achieve 8ustice insociet*.

ro6 the above discussion# it is obvious that different people have different ideas aboutla&. This is because the* look at la& fro6 different perspectives. Although each of theseversions is correct# *et the* are partial descriptions of la&. It is possible to understand la& b* looking at its sources. e &ill get a clearer picture of la& if &e look at the nature andfunctions of la&. Cnce the functions of la& have been identified# it 6a* be pertinent toask &hether the la&s actuall* perfor6 those functions effectivel*. If the ans&er is innegative# a further uestion as to &h* it is so and &hat could be done about it# arises.

I have started the discussion &ith the uestion >&hat is la&> 8ust to sho& that there areseveral approaches to la&# and that there are several 6ethods to understand the idea of la&. A student of la& 6ust necessaril* have a clear idea of la& because that &ill help thestudent in a proper understanding of an* particular branch of la&# and also inunderstanding the 6anner in




&hich a legal s*ste6 &orks. The task of 8urisprudence# put in the si6plest ter6s possible# is to help for6 a clear picture of la&. This is basic to af proper stud* of la&.That e3plains the relevance of 8urisprudence# and the reason behind 6aking it a

co6pulsor* sub8ect in the curriculu6 of la&. >

eanin$ o& Jurisprudence

The ne3t uestion &hich arises is as to &hat is 8urisprudenceF It has been described asthe kno&ledge of la& or the science of la&. In this chapter &e &ill discuss the 6ainco6ponents in the stud* of 8urisprudence.

An i6portant area of 8urisprudence is concerned &ith the sources of la&# viH#legislation# precedent# and custo6. The relative i6portance of these sources keeps onchanging &ith ti6e. It is interesting to stud* the various sources of la&# and their relative

i6portance in different legal s*ste6s andU during different periods in histor*. The stud* isver* i6portant because it J tells us a lot about the evolution of la&# and also &hat the la&is toda*. !

It is possible to approach la& fro6 various perspectives# such as historical# Wecono6ic# and sociological. No single approach gives us a co6prehensive# picture of la&. Nevertheless# each approach is i6portant because it thro&s light on so6e aspect of la&.urists have spent a great deal of their ti6e and creative energ* to develop their o&nconcepts of la&. These theories# &hich include natural la&# various versions of positivis6and sociological theories# continue to gro& and enrich our kno&ledge of la&. A stud* of the approaches to la& and various theories of la& for6 another i6portant cniponent of 8urisprudence.

There are certain legal concepts &hich for6 the foundation of ever* legal s*ste6.These concepts# so6eti6es called the ele6ents of la&# &hich include right# dut*#obligation# o&nership# possession# legal personalit* etc# are the core of an* branch of la&. A proper stud* of the ele6ents of la& euips a person &ith the e3pertise to anal*se#understand# and solve an* legal proble6. urisprudence as a basic sub8ect is# therefore#concerned &ith a stud* of the ele6ents of la& as &ell. The subseuent lectures in this book &ill be concerned &ith the sources of la&# various theories of and approaches tola&# and the ele6ents of la&.

)"e (dea o& La!

The idea of la& &ith &hich &e began this lecture needs 6ore elaboration. henever &e&ant to understand a concept# our usual 6ethod is to turn to the definition or definitionsof that concept. In understanding the concept of la& also the definitions help. -o&ever#the* do not tell us the



Law- ts ature and Functions

&hole stor*. No si6plistic definition of la& is considered satisfactor*. e need ananal*sis to unravel the confusions surrounding the concept of la&# in order to highlightthe salient features of a legal s*ste6# and to provide an insight into the nature# functions#

and operation of la&. Definitions constitute onl* the starting point of our investigation.A co6plete picture of the concept of la& &ill e6erge onl* after &e have discussed thetheories# approaches# and ele6ents of la&.

The e3istence of la& presupposes the e3istence of a co66unit*. hen &e use the&ord >co66unit*># &e 6ean a group of people &ho have accepted a set of values dealing&ith the funda6ental issues on &hich the e3istence of that societ* depends. In theabsence of such agree6ent# 6en cannot act together effectivel*. hen it reaches acertain stage of develop6ent# the co66unit* sets up a legal order &hich deter6ines the6ethods b* &hich the la& is to be created# declared# and enforced. It is aptl* said u/i

societas, i/i'us, ie# &herever there is a societ*# there is la&. The uestions as to &ho usesthe 6achiner* of la&# and for &hat ends# continue to be debated upon. hen it is said

that the end of la& is 8ustice# it 6ust be clearl* understood that it is 6ore of hu6an 8ustice# rather than ideal 8ustice defined b* those &ho control the 6achiner*.ro6 one perspective# la& 6a* be si6pl* described as an abstract bod* of rules. ro6

another perspective# it is a social process for co6pro6ising the conflicting interests of 6en. Cne approach to la& 6a* e6phasise its coercive character# &hile another 6a* la*stress on social acceptance of la&. Cne can also look at la& as so6ething &hiche6anates fro6# and is enforced b* the state. La& can also be conceived as evolving fro6societ*# and being sustained b* social acceptance. arious definitions of la& reflect thesevarious approaches.

7ant defines la& as the >su6 total of the conditions under &hich the personal &ishes of one 6an can be co6bined &ith the personal &ishes of another 6an in accordance &iththe general la& of freedo6>. In -egel>s vie&# la& is >the abstract e3pression of the general&ill e3isting in and for itself. -enr* aine>s idea of la& is closel* associated &ith t&onotions# ie# the notion of order# and the notion of force. 9avign* defines la& as >the rule&hereb* the invisible borderline is fi3ed &ithin &hich the being and the activit* of eachindividual obtains a secure and free space>. Another 8urist# inogradoff# sees la& as >a setof rules i6posed and enforced b* a societ* &ith regard to the distribution and e3ercise of po&ers over persons and things>.

Duguit>s definition is i6portant because he treats la& essentiall* and e3clusivel* as asocial fact. -e identifies the foundations of la& in the essential reuire6ents of co66unit* life. La& can e3ist onl* &hen 6en live together.



Lectures in Jurisprudence <

La&# according to Duguit# denotes an obligator* code of hu6an coni designed to satisf*the social needs of the co66unit*. Ihering bring t&o ele6ents# na6el*# social control#and social purpose. -e defines lai >the for6 of guarantee of the conditions of life in

societ*# assured b* st po&er of constraint>. Ehrlich includes in his definition of la& all them &hich govern social life &ithin a given societ*.Austin defines la& as the general co66and of the sovereign to his sub# obliging the6

to a course of conduct. This definition is the basis of positivist approach# &hich &ill bediscussed in detail later. The ele6eii coercion is not pro6inent# but latent# in Paton>sdefinition of la& as bod* of rules &hich are seen to operate in a co66unit* backed b* O6echanis6 accepted b* the co66unit* b* 6eans of &hich suffic co6pliance &ith therules 6a* be secured to enable the s*ste6 or sX rules to continue to be seen as binding innature>. In a si6ilar vein is definition of ried6ann. According to hi6# the concept of la&6ea nor6 of conduct set for a given co66unit* and accepted b* it as binY b* anauthorit* euipped &ith the po&er to la* do&n nor6s of a degrc general application to

enforce the6 b* a variet* of sanctions.The courts are at the focal point of so6e definitions of la&. A t*t e3a6ple is thedefinition of -ol6es# &ho said/ >The. prophesies of &hat courts &ill do in fact andnothing 6ore pretentious are &hat I 6ean b* la&.> 9al6ond>s definition also conve*s thesa6e idea &hen he defines as the bod* of principles recognised and applied b* the statein ad6inistration of 8ustice. Pointing out that this definition does adeuatel* bring out theele6ent of force involved in the conceptioi la&# Parker defines la& as >the bod* of principles enforced b* the s through 8udicial authorities b* ph*sical force in pursuit of 8ustice# &he attained or not>. The ele6ent of prediction and the pivotal role of courts areseen in the definition given b* )ardoHo also. AccordinK )ardoHo# a principle or rule of la& is a principle or rule of conduc established as to 8ustif* a prediction &ith reasonablecertaint* that it be enforced b* the courts if its authorit* is challenged. All these definitreflect the approach of the realist school# &hich &ill for6 the topic discussion in asubseuent lecture.

The ethical content of la&# &hich is conspicuousl* absent in all definitions &e have sofar e3a6ined# is the core of Del ecchio>s definit -e defines la& as >the ob8ectivecoordination of possible acts a6ong G according to an ethical principle &hich deter6inesthe6 and prev their interference>.

5



Law: Its ature and Functions

unctions of La&

Cne can go on citing various definitions of la&# but that &ill onl* add to the

confusion. No& let us tr* to understand the nature of la& in ter6s of

groups &ithin a societ*# at least in so far as these individuals and groups accepta version or aspect of a co66on social order that includes sub6ission to la&.La& also provides procedures for conflict resolution. The third i6portantfunction of la& is the resource allocation function. La& guarantees

f and protects e3isting production relations and &a*s of distributing

resources# apart fro6 providing the 6eans for active intervention to actualisei ne& principles and policies for resource allocation# and to enforce andI supervise the sa6e.f The 6ain function and purpose of la& has been stated to be achieving 8ustice#stabilit*# and peaceful change in societ*. This naturall* leads us to ! I the uestion#

&hat is 8usticeF Pri6aril*# it 6eans eualit*. As Aristotle sa*s# e I in8ustice arises&hen euals are treated uneuall*# and also &hen uneuals e I are treated euall*. Inother &ords# eualit* 6eans not singling out persons n I for special treat6ent in the

absence of significant differences# but in treating te I like cases alike# and 6eting outfair and eual treat6ent to all. -o&ever# t the difficult uestion is as to &hat

constitutes a significant difference 8f 8ustif*ing special treat6ent in a particular

conte3t. In order to ans&er this te I uestion &e have to 6ove fro6 a for6al and procedural notion of eualit* er ! to a substantive and political notion. It is i6portantto realise that the ie U nu6ber and t*pes of classes a legal order can establish for

differential to treat6ent is al6ost infinite. )aste# gender# religion# race# econo6ic status#so educational attain6ents# place of birth and 6an* other factors 6a*>ill constitute the basis for differential treat6ent. +insberg points out thatus control of po&er relations and e3clusion of arbitrar* po&er are necessar* toor ensure i6partialit* in the process of deter6ination of eualit*. Eualit* in

political rights 6ust be e3tended to eualit* in social and econo6ic rights# /heAnother di6ension of 8ustice is distributive 8ustice# &hich ai6s at

4n. ensuring a fair division of social benefits and burdens a6ong the 6e6bersten of the co66unit*. It serves to secure a balance or euilibriu6 a6ongnts 6e6bers of societ*. hen this balance is disturbed# corrective 8ustice 6ust

step into correct the ineuilibriu6. It is said that distributive 8ustice is the

Itask of the la&6aker# and corrective 8ustice is the task of the 8udge. 9tabilit* and peaceful change# &hich &e have seen as the other function




a6ount of unifor6it*# certaint* and stabilit* are necessar* to 6alnta credibilit* of la&.

Qnless there is predictabilit*# a citiHen cannot piG activities in confor6it* &ith la&.)ertainl* in la&s e3cludes arbitra in decisions. Ever* social order# therefore# desiresstabilit* and seY hile the i6portance of these as ideals cannot be overlooked# the reGthat la& can never attain that ideal in a perfect 6anner. No rule can p for ever* possiblesituation. Distinctions 6ust be dra&n &hen circu6s var*. Too 6uch stabilit* &ill leadonl* to rigidit* and stagnation. As I Pound observes# >la& 6ust be stable# *et it cannotstand still.> 9o a fl approach in tune &ith changing circu6stances is necessar* to alk peaceful change. The success of a legal s*ste6 depends on its propen e6plo* generalrules# standards and principles in the task of regu hu6an affairs# and in balancing theneeds of stabilit* &ith those of cl

hen &e think of la& as a s*nthesis of order and 8ustice# the disti bet&een these t&o

concepts# though interrelated# 6ust not be overlY Crder relates to for6s of social liferather than to its substance and It is not sufficient to create a satisfactor* 6ode of sociale3istence# directs our attention to the fairness and reasonableness of the rules# prii andstandards that are co6ponents of the nor6ative edifice. )onsidei of 8ustice lead us to thecontent of legal nor6s and institu arrange6ents# their effect upon hu6an beings# andtheir &orth in te their contribution to&ards achieving satisfaction in the societ* and building of civilisation. The ai6 of 8ustice is to satisf* the reasonable and clai6s ofindividuals# and at the sa6e ti6e to pro6ote prod effort and that degree of socialcohesion &hich is necessar* to 6air civilised social e3istence. Thus# it can be said thatla& 6ust ai6 creation of order# as &ell as the realisation of 8ustice.

In an* societ*# there &ill inevitabl* be disagree6ents on uestii 8ustice. If under a polic* of protective discri6ination# seats are reser favour of certain castes in educationand e6plo*6ent because thX been deprived of opportunities for generations# it isarguable that / polic* pro6otes 8ustice. -o&ever# it is also arguable that such a doesin8ustice to 6eritorious candidates belonging to other castes & not en8o* the benefit of reservation# and are denied ad6issi e6plo*6ent because of the polic* of protectivediscri6ination.

9i6ilarl*# &here propert* o&ned b* a landlord is taken over b* th &ithout pa*ing an*co6pensation or on pa*6ent of a token a6our the land is distributed to landlesslabourers# one can look at it fro6 di perspectives# and dra& different conclusions. ro6the landlord>s pc vie&# it is clearl* an instance of in8ustice because he had been depri




his propert* &ithout adeuate co6pensation. ro6 the poor landless labourer>s point of vie&# he &as tilling the soil and the landlord &as e3ploiting his hard labour. The la& hasonl* corrected the in8ustice# and restored the balance in societ*.

If a la& is enacted to provide for ;; percent reservation for &o6en in legislatures# it6a* be hailed as a 6easure to achieve real eualit* b* e6po&ering &o6en. It 6a* also be criticised as a denial of eualit* to 6en and thus# a denial of 8ustice. 9i6ilarl*# an*nu6ber of uestions 6a* be raised in relation to 8ustice# as for instance# &hether la&s#&hich per6it abortion# capital punish6ent and euthanasia# pro6ote 8ustice in societ*.The content of 8ustice# as 7elsen observes# is not a6enable to rational deter6ination. Inresponse to the above'referred issues# it is not possible to give clear'cut ans&ers in ter6sof right and &rong. Ans&ers to these uestions rather depend on value 8udg6ents. No& the uestion is &hether &e should include value 8udg6ents in our definition of

la&. In other &ords# in order to describe so6ething as la& &hether it should satisf* so6ecriterion based on 8ustice or fairness. If a la& does not satisf* *our sense of 8ustice# &ill it

be considered as la&# and hence bindingF Does a la& attain the ualit* of la& 6erel* because it &as laid do&n b* the state# and is backed b* the coercive po&er of the state toenforce itF If an oppressive and un8ust la& is i6posed on a societ*# resistance to such la&&ill gro& in that societ*# because people 6a* not accept the legiti6ac* of such la&# eventhough it satisfies the test of for6al validit*. Thus# &e dra& a distinction bet&een thevalidit* of la& and its legiti6ac*.

La! and ora0ity

The relation bet&een la& and 6oralit* has also been the sub8ect 6atter of 6uch debateand discussion. It is closel* related to the uestions &e have been considering. oralit*ai6s at increasing social har6on* b* di6inishing the incidence of e3cessive selfishness#no3ious conduct to&ards others# internecine struggles# and other potentiall* disintegrativeforces in social life. The classical distinction# &hich characterises la& as concerned &ithe3ternal conduct and 6oralit* as concerned &ith internal conduct# &as first 6ade b*7ant. It &as strengthened b* the support of 8urists like Paton# 7antoro&icH# and9ta66ler. In this vie&# la& reuires e3ternal co6pliance &ith e3isting rules regardless of the underl*ing 6otive. oralit* appeals to the conscience of 6an# his intentions# sense of ethical dut*# and the concern for good for its o&n sake. La& is heterono6ous# ie# i6posedon 6an fro6 outside# &hile 6oralit* is autono6ous# ie# co6ing fro6 &ithin 6an>s inner self.





!012 Lectures in Jurisprudence

-o&ever# the relationship bet&een la& and 6oralit* appe co6ple3# a6biguous andfluid than &hat the classical disi out. La&# in so6e conte3ts# is as 6uch concerned&ith intentions as 6oralit*. or instance# &hen the uestion &het guilt* has to ;e

deter6ined on the basis of 6ens rea or ; cannot 6erel* look at e3ternal conduct and

decide. 9i6ila concerned not onl* &ith internal conduct# but also &ith e3i-istoricall*# &e find that no clear distinction &as dra& and 6oralit* in ancient ti6es.In +reece# la* 8uries &ho ad6i in popular courts did not perceive an* cleardistinction her Liit 0an$ua$e ui mo0a0ity= in L>ii$0anU= c"ance00or- euit*according to the dictates of their conscience# &hich h b* the prevailing 6oral ideals#and the religious doctrines catholic church. In India# the all'pervasive concept ofdharm of both la& and 6oralit*. -o&ever# tatet therule Roscoe Pound identifies four stages in the la&'6oral The first is a stage of undifferentiated ethical custo6s# cusactions# religion# and la&. This 6a* be called the pre'legal si stage is that of strictla&# codified or cr*stallised# &hich iY 6oralit*. The third stage is that of infusion of6oralitG reshaping la& b* 6orals. Ideas of euit* and natural la& pi role in the

gro&th of la&. The final stage is that of conscio la& 6aking in &hich 6orals and6oralit* are for the la& 6/ La& attains 6aturit* and 8udges have to decide onl*accon 9everal 8urists believe that there is a distinction bet&een la although there areso6e features co66on to both. According >the ob8ect of la& is the sub6ission of theindividual to the v societ*# &hile the tendenc* of 6oralit* is to sub8ect the in dictatesof his conscience>. Roscoe Pound accepts that lav have a co66on origin# butadds that the* diverge in then< $entha6 su6s up the relation aptl*# sa*ing that >la& has t

as 6orals# but it has b* no 6eans the sa6e circu6ference># -artis not in favour of re8ecting the distinction bet&een # based on theinternalit* and e3ternalit* of conduct altogether# four features#

&hich distinguish 6oralit* fro6 legal as &ell The* are asfollo&s/

(i (mportance- -art places 6oral rules at a higher pi toother social rules and even so6e rules of la&. > rulesde6and sacrifice of individual interests on t

/5

&t ?




person bound# co6pliance &ith the6 obtains vital interests &hich all share alike. (ii(mmunity &rom de0i;erate c"an$e- In the case of legal rules# it is al&a*s possible

to repeal old rules# change e3isting rules# and introduce ne& rules. The

co6petence of the legislatures to change la& 6a* be li6ited b* a &ritten)onstitution. -o&ever# even the )onstitution is a6enable to change in the prescribed 6anner. oral rules cannot be brought into e3istence# altered or repealed# in a si6ilar 6anner. oral rules of a societ* 6a* also change# but thechange is not deliberatel* brought about b* an* single factor. It is the result of several factors &hich e3ert an influence on social 6oralit*. La& 6a* also be oneof the factors &hich influence a change in 6oral rules.

(iii 'o0untary c"aracter o& mora0 o&&ences- A person &ill be absolved fro6 6oralresponsibilit* if he can establish that his act contrar* to a 6oral rule &as doneunintentionall*# and inspite of ever* precaution that it &as possible to take in thegiven circu6stances. A legal s*ste6# on the other hand# &ill not al&a*s accept

such an e3cuse. Legal responsibilit* is not inevitabl* e3cluded b* thede6onstration that an accused could not have kept a la& &hich he has broken. Inthe case of 6oral responsibilit*# it is al&a*s a pre'condition that the individual6ust have a certain kind of control over his conduct.

(iv *orm o& mora0 pressure- The t*pical for6 of legal pressure consists of ph*sical punish6ent or unpleasant conseuences. 9ince 6oral rules are concerned &ith theconscience of 6an and obedience to the6 is considered to be internal rather thane3ternal# a rule# &hich is enforced b* threat of punish6ent# cannot be regarded as a6oral rule. oral pressure is e3erted# not b* threats# but b* re6inders of the 6oralcharacter of the action conte6plated and the de6ands of 6oralit*. It is an appeal toone>s conscience. Deviations fro6 the 6oral code 6a* 6eet &ith a nu6ber of hostile reactions ranging fro6 infor6al e3pressions of conte6pt to severance of social relations.

ried6ann &ho considers the classical distinction bet&een la& and 6oralit* outdated#argues that the relative spheres of la&# 6oralit* and ethics differ considerabl*# but theree3ists an active reciprocal relationship bet&een the legal order# and the 6oral order.oral values press upon the legal s*ste6# and the 6odern la&6aker can# to an increasinge3tent# influence and 6odif* the social habits of the co66unit*. Thus# in theconte6porar*# highl* articulate and organised societ*# la& beco6es an increasingl* 6a8or factor in the transfor6ation of social 6oralit*.

11




9o6e 8urists dra& a line of distinction bet&een ethics and positiv 6oralit*. hileethics deal &ith an absolute ideal# positive 6oralit* i 6ade up of the actual standards&hich are adopted in the life of an particular co66unit*. In so6e respects positive

6oralit* is si6ilar to lai Positive 6oralit*# like la&# e6phasises conduct# rather than stateof 6ind It is also i6posed on individuals e3ternall* and has behind it the effectivi thoughunorganised# sanction of public opinion. -o&ever# public 6oralit differs fro6 la& in thefollo&ing respects/

(i a rule of la& is i6posed b* the state# &hereas positive 6oralit* i i6posed b* theco66unit*G

(ii sanction behind positive 6oralit* is not applied b* organise 6achiner*# nor is itdeter6ined in advance# as in the case of la&

(iii the content of la& is different fro6 that of positive 6oralit*G (iv another difference lies in the 6ethod of e3pression. Rules of posi6 6oralit* lack

precision# &hereas rules of la& are e3pressed in precis and technical language.

The relation bet&een ethics# positive 6oralit* and la& is aptl* su66ed u b* Paton thus/

La!= positi:e mora0ity= and et"ics are o:er0appin$ circ0es !"ic" can ne:er

entire0y coincide= ;ut t"e "and o& man can mo:e t"em and determine t"e

content t"at is common to a00 or to t!o or con&ined to one./

Another uestion &hich has sparked off a heated 8urisprudential debate i as to &hether the la& should be concerned &ith the enforce6ent of 6oralitK The controvers* arose

follo&ing the decision of the -ouse of Lords i haw v DPP 3 In this case# a person

published a book under the title >Ladit Director*># listing the na6es and addresses of prostitutes in London. 9trict speaking# such publication did not constitute an* offence asdefined bK la&. Nevertheless# he &as convicted for the offence of >conspiring to corrup public 6orals># an offence not kno&n to la& till then. ustif*ing th conviction# iscount9i66onds said/

There re6ains in the courts of la& a residual po&er to enforce the supre6e andfunda6ental purpose of la&# to conserve not onl* safet* and order# but also the6oral &elfare of the state.

9upporting this vie&# Lord Devlin argues strongl* that a societ* possesse public 6oralit*

si6pl* because it is a societ*# and the cri6inal la& canno

/%aton @#= ! Textboo" of Jurisprudence# &ourt" edn= /937= p 34.

7A/96/B 7 ,00 ER 6.

!,






ignore the collective 6oral 8udg6ent of the co66unit*. If there is a strong and pervasivefeeling that certain conduct is e3tre6el* threatening and reprehensible to basic rules of co66unit* life# then the sanction of the cri6inal la& should be applied.

-LA -art enters the debate &ith a different vie&. -e argues# on the basis of ill>sessa* titled >Cn Libert*># that the onl* purpose for &hich po&er can rightfull* bee3ercised over an* 6e6ber of a civilised co66unit* against his &ill is to prevent har6to others. -art &ants to separate la& fro6 6oral uestions. Naturall*# he is opposed tothe ver* idea of vesting a po&er in the courts of la& to enforce the supre6e andfunda6ental purpose of la& in order to conserve the 6oral &elfare of the state.

The debate assu6es a different di6ension &ith Lon uller>s repl* to -art. In his book#;

uller asserted that la& 6ust possess certain characteristics if it is to be classifiedcorrectl* as >La&>. The 6ost i6portant characteristic is >inner 6oralit*> &hich 6ustco66and respect. uller enu6erated the follo&ing ualities# &hich 6ust be present in alegal s*ste6 if it is to co66and allegiance fro6 citiHens/

(i La&s 6ust be in e3istence. The* 6ust not e3ist 6erel* as ad hoc settle6ents of disputes.

(iiLa&s 6ust be pro6ulgated publicl*. The* 6ust be 6ade kno&n to persons &ho&ill be bound b* the6.

(iii La&s 6ust not be retroactive. The* 6ust not affect adversel* persons &ho reliedupon the la& as it &as.

(iv La&s 6ust be intelligible and clear. (v La&s 6ust be internall* consistent through ti6e# ie# the* 6ust not change so that

citiHens are unable to orient their actions b* the6. (viLa&s 6ust be free fro6 contradiction.

(vii La&s 6ust not reuire the i6possible. (viii La&s 6ust be ad6inistered so that there is no failure of congruence bet&een the rules as pro6ulgated and their ad6inistration in practice.

uller provides a clear ans&er to the uestion as to ho& should citiHens react to a regi6e&hich ignores these principles# or &hen the legal regi6e assists in the s*ste6atic denialof rights to groups of citiHens. The regi6e &hich is based upon# or &hich activel* assistsin the spread of# in8ustice has no right to e3pect allegiance fro6 its citiHens. According touller# even though the la& 6a* be for6ulated and pro6ulgated in traditional# for6alfashion# its lack of internal 6oralit* deprives it of the nature of >true la&>.

4 The $oralit% of Law# /964.

!;




-art concedes that there are certain rules of conduct &hich organisation 6ust follo& if it is to be viable# and such rul considered as constituting a co66on universal ele6ent in /

societies. -o&ever# according to hi6# it does not follo& that a i legal validit* 6ust

include# e3pressl* or b* i6plication# an* r 8ustice or 6oralit*. A rule of la& 6a* be6orall* iniuitous# bi la&. The validit* of la& cannot be i6pugned solel* on the gn lack of 6oralit*.

To conclude# -art believes that the i66oralit* of la& cannoi the basis of a denial that itis# and &ill continue to be# la& un repealed. uller# on the other hand# is of the vie& thatthe i66 la& vitiates# or destro*s# its right to be called >la&>. A la& fou6 denial of the principles of the inner 6oralit* of the la& is not an* respect fro6 the citiHens.9ubseuentl* 6an* other 8urists i the debate# adding ne& di6ensions to it# and the debateconti in the course of our discussion# its echo &ill be found in the positions of natural la&and legal positivis6.

La! as Socia0 +ontro0

The i6portance of la& as one of the for6s of social control c attention. In order tounderstand this &e have to consider the of la& to the social control process as a &hole#and also to the of social control.

In ever* societ* &e find great co6ple3it* in the actions of the and groups. Theuestion is ho& do &e then perceive societ* G as an organic co66unit*F T&o perspectives of societ* beco6e our discussion. The first looks at societ* as anautono6ous sY independent of those &ho for6 it# giving rise to social forces thG control#and deter6ine the conduct of its constituents. 9ocie the 6echanis6s of social control# is perceived as acting upon and its 6e6bers. This vie& of 6an as a product of social fore>deter6inis6>.

The other perspective vie&s individuals as active agents in i of social realit*. Thisvie& is kno&n as >voluntaris6>. 9ocial coi as a product of the nor6ative process 6ainl*in ter6s of the process operating through internalisation of values. This takes t throughcusto6s# 6ores# folk&a*s# and 6oralit*. These 6a* ! as infor6al# or non'institutionalised 6echanis6s of social coi activit* and interaction give rise to socialvalues# &hich e e3pectations of others# constitute nor6s. Adherence to

/




e3pectations is induced b* a range of sociall* available sanctions that are associated&ith the nor6s the6selves. These sanctions are applied as a response to nor6violation in the course of pri6ar* social activit* &ithin the pri6ar* social units of

group# fa6il*# and kinship. The constraint that is e3ercised through the infor6al6echanis6s of social control is seen as being essentiall* a process of self'regulation.The forces of social control for6 a continuu6 ranged along a scale fro6 infor6al

6eans to the 6ore institutionalised for6s. La& is considered as the 6ost specialisedfor6 of social control b* 8urists like Roscoe Pound. This vie& stresses the nor6ativecharacter of la&# and the relationship bet&een societal values# and the value contentof legal propositions. Rules of la& are seen as e6bod*ing the 6ost &idel* diffusedsocial values. La& shares &ith other for6s of social control a reliance uponenforce6ent through &idel* diffused consensus. Durkhei6 vie&s la& as the directe6bodi6ent of the >conscience collective>. This vie& see6s to ignore the coercivecharacter of la&.

Even &hile accepting the coercive character of la&# it is i6portant to re6e6ber that la& does not operate as an e3clusivel* coercive 6echanis6. If la& 6ust beeffective as a 6ethod of social control# it 6ust have legiti6ac*# and value consensusas the root of legiti6ac*.

La& as a 6ethod of social control functions to circu6scribe po&er# private as &ellas public. Po&er# according to a3 eber# is the probabilit* that one actor &ithin asocial relationship &ill be seen in a position to carr* out his o&n &ill despiteresistance# regardless of the basis on &hich this probabilit* rests>. La& beingessentiall* a restraint upon the e3ercise of arbitrar* po&er is hostile to anarch* as&ell as to despotis6. To avoid anarch* of nu6erous conflicting &ills# la& li6its the po&er of private individuals. To avoidJ the t*rann* of an arbitrar* govern6ent# la&curbs the po&er of the ruling authorit*. $* setting barriers to unli6ited e3ercise of po&er and atte6pting to 6aintain a certain social euilibriu6# la& acts as arestrictive force in social life. It seeks co6pro6ise# peace and agree6ent in the

political and social sphere.

Territorial Nature o& La!

hen &e consider la& as a bod* of rules created b* a legislature and applied and developed b* courts# &e are identif*ing la& &ith stare. 9ince stares are territorial innature# la& 6ust also necessaril* be territorial. The territorialit* of la& is in regard toits enforce6ent as &e as operation. A state can enforce its la& onl* &ithin itsterritorial boundaries. hen &e sa* that the operation of la& is al&a*s territorial# it6eans that it applies to all persons#



I

!@



things# acts and events &ithin that territor*. Negativel*# it 6eans tl does not appl* to persons# things# acts and events outside such terri 9ince the enforce6ent and operationof la& are essentiall* ter6or can be said that a legal s*ste6 belongs to a definedterritor*. This n that/

(i its rules do not purport to appl* e3tra'territoriall*G (ii those &ho appl* and enforce the6 do not regard the6 as app e3tra'territoriall*Gand

(iii other states do not so regard the6.

The principle of territorialit* of la& is rela3ed in so6e situations. 9o6ei a legal s*ste66a* per6it a person &ithin its territor* to follo& the !G his nationalit*. Privateinternational la&# &hich is also kno&n as confl la&s# deals &ith cases in &hich courts of a state have to ad6inister fo la&s in their ad8udication. In such cases# the la& applied6a* not b la& of the state# but the la& of so6e other state. -ere &e 6a* sa* tha la& of astate is given e3tra'territorial application. In e3tradition proceed a citiHen of one state

&ho has co66itted a cri6e in another state is se the state &here the cri6e &asco66itted. -ere# a state agrees to 6al citiHens a6enable to the 8urisdiction of another state. These e3ceptior not &eaken the principle of territorialit* of la& because the* beeoperative onl* &ith the consent of the state. It is logicall* possible to a that the rules of private international la& for e3tradition are part of thY of a state.

La! and *act

The uestions that co6e up for ad8udication before courts in the cour/ ad6inistration of 8ustice 6a* be broadl* divided into uestions of la&# uestions of fact. The ter6 >uestionof la&> is used in three distinct sei

(i a uestion# &hich the court is bound to ans&er in accord &ith a rule of la&G (ii a uestion# &hich the la& itself has authoritativel* ans&ere the e3clusion of the

right of the court to ans&er the uestion thinks fit in accordance &ith &hat isconsidered to be the t and 8ustice in the 6atterG and

(iii a uestion as to &hat the la& is.

All uestions# &hich are not uestions of la&# are called uestions of Thus# it can be saidthat an* uestion# &hich is not predeter6ined b* and an* uestion e3cept a uestion as to&hat the la& is# is a uestio fact. If a legal s*ste6 follo&s 8ur* trial# then uestions of factare left to

/6




fact. 8ur*# and uestions of la& to the 8udge. Vuestions of fact 6a* be pri6ar* or secondar*.Pri6ar* facts are proved b* oral# docu6entar*# or other evidence. 9econdar* facts can be



inferred fro6 pri6ar* facts.Vuestions of fact 6a* be distinguished fro6 uestions of 8udicial discretion. Vuestions

of fact are capable of proof# and are the sub8ect of evidence adduced for that purpose.atters of 8udicial discretion are not sub8ect of evidence and de6onstration# but of argu6ent# and are sub6itted to the reason and conscience of the court. In fact'finding# the

task of the 8udge is to ascertain the truth. The purpose of e3ercising discretion is todiscover the right or 8ustice# and it involves 6oral 8udg6ent# so6ething &hich cannot be proved b* evidence or deter6ined b* la&. La& 6a* not even provide the criteria for assess6ent# &hich are 6atters of evaluation for the 8udge. 9tandards like due process of la&# reasonableness# fairness# decenc*# and 6oralit* etc provide great scope for thee3ercise of 8udicial discretion.

The follo&ing illustration &ill 6ake the distinction bet&een uestions of fact# la&# anddiscretion clear. 4 forcibl* took his &atch fro6 a repairer# &ho refused to give it back e3cept on pa*6ent of his repairing charges. The uestion &hether 4 took his &atch&ithout the repairer>s consent# is a uestion of fact to be proved b* evidence. Theuestion &hether that act a6ounts to theft# is a uestion of la& governed b* the

provisions of the Indian Penal )ode !:5%. inall*# the uestion &hat shall be thereasonable punish6ent for this &rong# is a uestion of 8udicial discretion.hen uestions of la& arise# the dut* of the court is to ascertain the rule of la&# and to

decide in accordance &ith it. As regards uestions of fact# the dut* of the court is toe3ercise intellectual 8udg6ent on evidence in order to ascertain the truth. As far asuestions of 8udicial discretion are concerned# the court 6ust e3ercise 6oral 8udg6ent inorder to ascertain the right and 8ustice of the case.

The e3istence and develop6ent of a legal s*ste6 represents the transfor6ation of uestions of fact# and of 8udicial discretion into uestions of la&. This happens b* the



establish6ent of authoritative and predeter6ined ans&ers to these uestions# 6ainl*&ithin the sphere of 8udicial discretion. During this process# natural and 6oral 8ustice getstrans6uted into legal 8ustice. These develop6ents provide the courts &ith a fi3edfra6e&ork &ithin &hich the* are relativel* free to arrive at decisions on their 6erits.The* allo& rules of la& to function as >guide posts rather than hitch posts>.

The la& 6a* so6eti6es deliberatel* depart fro6 the truth for sufficient or insufficientreasons. This is done 6ainl* through t&o devices# legal presu6ptions# and legal fictions.In legal presu6ptions# one fact is recognised

J

!2




b* la& as sufficient truth of another fact &hether it is in truth suffic Presu6ptions of la& 6a* either be conclusive# or rebuttable. A concli presu6ption is one &hichconstrains the court to infer the e3istence of fact fro6 the e3istence of another even

though this inference couli proved to be false. La& prohibits leading evidence to thecontrar*. E3a6 of conclusive presu6ptions are/ (i a child born during the continuanc6arriage and &ithin ,:% da*s after its dissolution is presu6ed to legiti6ateG (ii a childunder seven *ears of age is presu6ed to be incap of co66itting a cri6eG (iii acertificate issued b* the Registrar of )o6pa that the reuire6ents of the )o6panies Act!1@5 regarding registrai have been fulfilled# is conclusive evidence that suchreuire6ents have b fulfilled. )onclusive presu6ptions are called presumptio 'uris et

de 'ure.A rebuttable presu6ption reuires the court to dra& such an infere even though there

is no sufficient evidence to support it# provided ther no sufficient evidence to establishthe contrar* inference. or instana negotiable instru6ent is presu6ed to be given for

value# unless the contr is proved. A person &ho has not been heard of for seven *ears or 6ore those &ho &ould naturall* have heard of hi6 if he had been alive# is presurr to bedead. -o&ever# this presu6ption 6a* be rebutted b* sufficie evidence to prove that he isalive. In our cri6inal 8ustice s*ste6# an accus person is presu6ed to be innocent# &hichagain is rebutted if the prosecutii proves that he has co66itted the offence.

Another deliberate departure fro6 truth takes place b* the use of ci 'uris, ie# legalfictions. -enr* aine defines a legal fiction as an* assu6ptk &hich conceals or tends toconceal the fact that the rule of la& had undergoK an* alteration# its letter re6ainingunchanged but its operation beir 6odified>. According to 9al6ond# legal fiction is adevice b* &hich la deliberatel* departs fro6 the truth of things# irrespective of &hether thei is an* sufficient reason for the sa6e. Attributing legal personalit* to co6pan* is alegal fiction. Legal fictions do not e3clude 8udicial discretior but 6erel* li6it it. Theuestion &hether legal fictions still pla* at i6portant role in a developed legal s*ste6 isdebatable. -enr* aiW recognised the necessit* of fictions in undeveloped legals*ste6s# but adba that the* are not necessar* in 6odern legal s*ste6s. Legislativea6end6ent are to be preferred to legal fictions. According to rederick Pollock# the ag of fictions is not over. +ra* also considers fictions as >co6patible &ith th

/8



w

r




(k

b* la& as sufficient truth of another fact &hether it is in truth sufficient. Presu6ptions of la& 6a* either be conclusive# or rebuttable. A conclusive presu6ption is one &hichconstrains the court to infer the e3istence of one fact fro6 the e3istence of another eventhough this inference could be proved to be false. La& prohibits leading evidence to thecontrar*. E3a6ples of conclusive presu6ptions are/ (i a child born during thecontinuance of 6arriage and &ithin ,:% da*s after its dissolution is presu6ed to be

legiti6ateG (ii a child under seven *ears of age is presu6ed to be incapable of co66itting a cri6eG (iii a certificate issued b* the Registrar of )o6panies that thereuire6ents of the )o6panies Act !1@5 regarding registration have been fulfilled# isconclusive evidence that such reuire6ents have been fulfilled. )onclusive presu6ptionsare called presumptio 'uris et de 'ure.

A rebuttable presu6ption reuires the court to dra& such an inference even though thereis no sufficient evidence to support it# provided there is no sufficient evidence to establish

the contrar* inference. or instance# a negotiable instru6ent is presu6ed to be given for value# unless the contrar* is proved. A person &ho has not been heard of for seven *ears

or 6ore



b* those &ho &ould naturall* have heard of hi6 if he had been alive# is presu6ed to bedead. -o&ever# this presu6ption 6a* be rebutted b* sufficient evidence to prove that heis alive. In our cri6inal 8ustice s*ste6# an accused person is presu6ed to be innocent#&hich again is rebutted if the prosecution proves that he has co66itted the offence.

Another deliberate departure fro6 truth takes place b* the use of fictio 'uris, ie# legal

fictions. -enr* aine defines a legal fiction as >an* assu6ption &hich conceals or tendsto conceal the fact that the rule of la& had undergone an* alteration# its letter re6ainingunchanged but its operation being 6odified>. According to 9al6ond# legal fiction is adevice b* &hich la& deliberatel* departs fro6 the truth of things# irrespective of &hether there is an* sufficient reason for the sa6e. Attributing legal personalit* to a co6pan* is alegal fiction. Legal fictions do not e3clude 8udicial discretion# but 6erel* li6it it. Theuestion &hether legal fictions still pla* an i6portant role in a developed legal s*ste6 isdebatable. -enr* aine recognised the necessit* of fictions in undeveloped legals*ste6s# but added that the* are not necessar* in 6odern legal s*ste6s. Legislativea6end6ents are to be preferred to legal fictions. According to rederick Pollock# the ageof fictions is not over. +ra* also considers fictions as >co6patible &ith the 6ost refined

and 6ost highl* developed s*ste6s of la&>.



e e Ce -s C& Ce 0e es Cn

Lecture 7

(mportance o& Jurisprudence

ice is = a ary ;y 0ed ent sed ion

Ictio tion one sin$ 0a! "ere to a tion= y an Aaine dded nents .e a$e " t"e

eanin$ and Scope o& Jurisprudence

(& t"e di&&erent ;ranc"es o& 0a! are studied !it"out payin$ any attention to t"e

su;<ect o& <urisprudence= one !i00 ne:er "a:e a compre"ensi:e :ision o& 0a! rat"er

t"e :ision o& 0a! !i00 ;e narro! and partia0. )"is is apt0y i00ustrated ;y an o0d storyo& &our ;0ind men= !"o !ent to see an e0ep"ant. Eac" one o& t"em touc"ed one part

o& t"e e0ep"ant and &ormed "is o!n impression a;out t"e e0ep"ant. Later= !"en t"ey

!ere asked to descri;e t"e e0ep"ant one said t"at it !as 0ike a pi00ar ;ecause "e "ad

touc"ed on0y t"e 0e$ o& t"e anima0. )"e second man said t"at it !as 0ike a 0on$ ;rus"

mo:in$ &rom one side to t"e ot"er= ;ecause "e "ad touc"ed t"e tai0 o& t"e e0ep"ant.

)"e t"ird man said t"at t"e e0ep"ant !as :ery t"in and so&t= &or "e "ad touc"ed t"e

ears o& t"e e0ep"ant. )"e 0ast one descri;ed t"e e0ep"ant as a 0on$ tu;e= an

impression $at"ered ;y touc"in$ t"e trunk o& t"e anima0. #"at eac" o& t"e persons

said !as partia00y true. None o& t"em sa! t"e e0ep"ant= ;ut touc"ed on0y parts o& t"e

anima0.

Let us ;e$in t"e discussion !it" an attempt to exp0ain t"e meanin$ and scope o& <urisprudence. )"erea&ter= !e !i00 discuss its uses and :a0ues.

Jurisprudence= !"ic" is a com;ination o& t!o Latin !ords &uris and prudentia#0itera00y means kno!0ed$e o& 0a!. ne o& t"e o0dest de&initions o& <urisprudence

$i:en ;y U0pian descri;es it as t"e kno!0ed$e o& t"in$s "uman and di:ine= t"e

science o& t"e <ust and un<ust. Sometimes= !e may &ind t"e !ord used to descri;e

0e$a0 connections o& any ;ody o& kno!0ed$e= as in medica0 <urisprudence= or

en:ironmenta0 <urisprudence= ;ut more accurate0y <urisprudence is t"e ana0ysis o&



t"e &orma0 structure o& 0a! and its concepts.

)"e !ord <urisprudence ;e$an to acFuire a tec"nica0 si$ni&icance in En$0and in

t"e ear0y nineteent" century. )"e contri;ution o& ent"am and ,ustin in e0e:atin$

<urisprudence to a p0ace o& "onour is !ort"




re6e6bering. Austin &as# incidentall*# the first professor of 8 in the Qniversit* ofLondon.

etaphoricall*# it can be said that 8urisprudence atte68 s*66etr* out of the chaos

of conflicting legal s*ste6s. Accord it is the scientific s*nthesis of all the essential principles of defined 'urisprudence as 2the study and s*ste6atic arrange general principles of la&.>

All co66unities# &hich reach a certain stage of develop6i legal s*ste6 to protectcertain interests. As the co66unit* d concept of la& beco6es 6ore refined# and theinterests protect change. The first task of 8urisprudence is to thro& light on tl la&. It isalso a functional stud* of the concepts &hich legal s*ste and of the social interests&hich the la& protects. This cann satisfactoril* &ithout a co6ple6entar* stud* of the purpose/ the societ* e3ists. In this sense# 8urisprudence offers a &ide ran for stud* andanal*sis.

-o&ever# there are 8urists &ho think that 8urisprudence has scope. Austin# &hose

i6perative theor* of law will /e disci considers that the 6atter of 8urisprudence is positive la&# la& / strictl* so called# la& laid do&n b* political superior to politics Thefor6al aspect of 8urisprudence finds e3pression in the de -olland also# &ho defines 8urisprudence as the for6al science la&. -e e3plains positive la& as the general rule ofe3ternal hur enforced b* a sovereign political authorit*. Roscoe Pound>s defi/ considers 8urisprudence as the science of la&. -e uses the &ord 8uridical sense# as denoting the bod* of principles recognised anY b* public and regular tribunals in the ad6inistration of 8ustice. + a si6ilar approach &hen he defines 8urisprudence as >the science i state6entand s*ste6atic arrange6ent of the rules follo&ed b* and the principles involved in thoserules.> enks# ho&ever# ob8e description of 8urisprudence as a for6al science# &hich hesa* 8ustified onl* if &e use the &ord for6al in a strained and artific/ itHgerald carries

this idea further b* defining 8urisprudence as given to a certain t*pe of investigation intola&# an investigat abstract# general and theoretical nature# &hich seeks to la* bare thi principles of la& and legal s*ste6s. The general theoretical i 8urisprudence is pro6inentin the definition of olo&icH# &ho 8urisprudence as a >general theoretical discussion aboutla& and its p as opposed to the stud* of actual rules of la&>. 9chu6peter Y 8urisprudenceas the su6 total of the techniue of legal reasonin

,%



I'portance of Jurisprudence

the general principles to be applied to individual cases. In a si6ilar vein# 7arl Lle&ell*nobserves/ >urisprudence 6eans to 6e an* careful and sustained thinking about an* phaseof things legal# if the thinking seeks to reach be*ond the practical solution of an

un6ediated proble6 in la&. urisprudence thus includes an* t*pe at all of honest andthoughtful generalisation in the field of the legal.>The stud* of 8urisprudence in a &ider perspective includes not onl* the stud* of the

concepts of positive la&# but also the influence of the social forces upon their develop6ent. As Dias observes/ >urisprudence is concerned not onl* &ith la&# and itsinstitutions as the* are and &ith their social i6pact# but also &ith i6proving the6 andchanging the6 in line &ith social develop6ent.> ulius 9tone describes 8urisprudence asthe la&*ers> e3traversion. According to hi6# it is the la&*ers> e3a6ination of the precepts# ideals# and techniues of la& in the light of present kno&ledge derived fro6disciplines other than the la&.

Thus# 8urisprudence involves the stud* of the general theoretical uestions about the

nature of la& and legal s*ste6s# about the relationship of la& to 8ustice and 6oralit*# andabout the social nature of la&. It develops concerns &hich properl* reflect the social and political concerns of the conte6porar* period. It atte6pts to suppl* an episte6olog* of la&# a theor* as to the possibilit* of genuine kno&ledge &ithin the legal sphere.

An i6portant aspect of 8urisprudence is that# it is transnational in nature. Its concernsrelate in various &a*s to 6ost# if not all# legal s*ste6s. That is the reason &h* Patondefines 8urisprudence as a particular 6ethod of stud* not of the la& of one countr*# but of the general notion of la& itself. It is a certain t*pe of investigation into la&# aninvestigation of an abstract# general or theoretical nature# &hich seeks to la* bare theessential principles of la& and legal s*ste6s.

A la& student studies a nu6ber of t*pical legal sub8ects like the la& of contracts# or thela& of cri6es. Each such sub8ect consists of a set of rules 6d principles to be derivedfro6 authoritative sources# and applied to factual situations in order to solve practical proble6s. urisprudence# b* contrast# does not constitute a set of rules# is not derived

fro6 authoritative sources# and is apparentl* &ithout practical application. -ere# the6ethod of inuir* is different fro6 that of other legal sub8ects. The concern of

8urisprudence is not to derive rules fro6 authorit* and appl* the6 to proble6s# but toreflect on the nature of legal rules# on the 6eaning of concepts# and on the essential

features of legal s*ste6s. 9everal uestions arise# such as# &hat 6akes a rule a legal rule#and &hat distinguishes la& fro6 6oralit*# etiuette# and other related pheno6enaF

,!



5 ILectures in Jurisprudence

urisprudence tries to build up a general and 6ore co6prehensive picture of each concept as a &hole. It also e3a6ines such concepts

against the background of ordinar* language in order to see the relation bet&een ordinar* and legal usages# and the e3tent to &hich legal proble6s 6a* ;e generated b* language itself. This is the logicalfunction of 8urisprudence It is i6portant to understand that 8urisprudencegoes be*ond this logical function. Legal theor* is concerned &ith la& asit e3ists and functions in societ*# the &a* in &hich la& is created andenforced# the influence o& social opinion and la& on each other# theeffectiveness of la&# and the part pla*ed b* sanctions. It is also the task of 8urisprudence to link la& &ith other disciplines# and to help to locateit &ithin a &ider social conte3t. The interdisciplinar* approach alsohelps anal*sis of legal concepts against the background of social

develop6ents and changing econo6ic and political attitudes. In a &idesense# 8urisprudence investigates the consistenc* bet&een legal s*ste6#and the &a* of life of the societ* in &hich it operates.

Austin divides 8urisprudence into t&o categories# na6el*# anal*ticaland nor6ative. hereas anal*tical 8urisprudence is concerned &ith thelogical anal*sis of the basic concepts that arise in la&# such as dut*#responsibilit*# negligence etc and the concept of la& itself# nor6ative 8urisprudence is concerned &ith the rational criticis6 and evaluation of legal practices. 9uch criticis6 is often 6oral in nature# but it can also beecono6ic# ps*chological# political# or social. It raises uestions such as#&hether la& should enforce 6oralit*G &hat rights should a legal s*ste6

recognise and protectG &hether protective discri6ination can be 8ustG&hether capital punish6ent is a cruel and inhu6an punish6ent etc.Austin also 6akes a division of 8urisprudence into general and particular. -e e3plains

general 8urisprudence as >the science concerned &ith the e3position of the principles#notions and distinctions &hich are co66on to all s*ste6s of la&>. Particular 8urisprudence is the science of an* s*ste6 i of positive la& actuall* obtaining in aspecificall* deter6ined political

societ*. The difference bet&een these t&o is not in essence# but in scope.

9o6eti6es particular 8urisprudence is contrasted &ith co6parative

8urisprudence. hile particular 8urisprudence is the science of la&

relating to a particular stateG co6parative 8urisprudence co6pares the

rules of la& relating to a particular 6atter in t&o or 6ore s*ste6s of la&.9o6e 8urists consider co6parative 8urisprudence as onl* a 6ethod of

stud*. )o6paring it &ith historical 6ethod# $r*ce observes/ >The

co6parative 6ethod is concerned &ith space as the historical 6ethod is

&ith ti6e.> The use of the ter6 >)o6parative La&># instead of co6parative 8urisprudence or co6parative 6ethod# though debatable# has beco6e popular. TheF



77






re ie -n ;e -e. -a0 in o& art it" "e -"e ca0 en

is a

advantages of )o6parative La& or co6parative 6ethod have been discussed later in this

lecture.$entha6 distinguishes bet&een e3positorial 8urisprudence# and censorial

8urisprudence. The for6er is concerned &ith the la& as it is# &hile the latter &ith &hatthe la& ought to be. 9al6ond>s division of 8urisprudence into anal*tical# historical# or ethical also deserves our attention. -is focus &as 6ainl* on anal*tical 8urisprudence# but he has not e3cluded the historical and ethical aspects altogether in his book on

8urisprudence#! because he realised that it &ill be i6possible to give a co6pleteanal*tical picture of la& if these aspects are totall* e3cluded. 9al6ond>s division has been criticised because it appears to create confusion bet&een sub8ect 6atter and6ethod. >Anal*tical> connotes a 6ethod of approach# &hich applies not onl* to for6al# but also to historical and sociological stud*.

urisprudence occupies a pro6inent place in the acade6ic discipline of la&. An*acade6ic discipline &orth its na6e# as 7ahn'reund rightl* observes# >6ust entailinstilling in the student a capacit* for critical thought>. Legal education needs to teach both la& and its conte3t—social# political and theoretical. urisprudence sets la& in a&ider conte3t# and 6otivates the students to learn to think rather than 8ust &hat tokno&. The thinking 6a* gro& into research# &hich can produce repercussions in thelegal# political and social thought.

Another value of 8urisprudence lies in its elucidation of legal concepts. This rendersthe co6ple3ities of la& 6ore 6anageable and 6ore rational. Thus# it helps to i6prove practice of la&. urisprudence sharpens the la&*er>s o&n logical techniue. It helps toco6bat the vice of for6alis6 resulting in disregard of the social function of la&.

urisprudence has a valuable role to pla* in la& refor6s. It provides clintv. intellectualorder# structure# and standards of rational and 6oral criticis6 and evaluation. It thus givesinsight into the relevant uestions to ask &hen la&s are being discussed or legal refor6sare being proposed. Passion 6a* do6inate discussion on the 6erits or de6erits o particular la&s. urisprudence can help to introduce an ele6ent of reason into such

discussions.9tudents# or even teachers of la& and la&*ers# generall* consider GHkr=ce as a



sub8ect &hich has no practical value. 9o6e teachers ask 7nts to suffer> 8urisprudenceas a necessar* e:i0. 9o6e IHHyH '7o students in la& schools tell the students toconcentrate 6ore on u; Ss (c" have practical relevance. It ts i6portant to re6e6ber that J is a sub8ect &h.ch has practical relevance and t6portance.

B

/ Sd'ondon Jurisprudence# t!e0&t" edn= /966.




Even &hile considering la& as a practical discipline# &e 6ust not that its practicalit* is based on the adeuac* of theor* upon &hich it or instance# although an airplane is a practical 6achineG it &orks o its design is based upon sound aerod*na6ic theor*.

Vuestions aboi that involve either nor6ative issues or issues of conceptual anal*sis airaised onl* b* legal philosophers. La&*ers and 8udges have to# an. freuentl* raise suchuestions. $are perusal of the various la& re sho&s that a nu6ber of such uestions areraised before courts. or insi &hat is the 6eaning of the &ords >procedure established b*la&> in a of the )onstitutionF ro6 a value'neutral 6eaning attributed to &ords in theearl* decades after the enact6ent of the )onstitutior 9upre6e )ourt has 6oved to a6eaning &hich incorporates fairnes/ reasonableness in the &ords procedure> and >la&>.9i6ilarl*# ans&e uestions like &hat is the >rarest of the rare cases> in &hich ca punish6ent 6a* be given# &hether death penalt* is cruel and inhi punish6ent# and&hether an atte6pt to co66it suicide should be i an offence etc# cannot be found in the provisions of the )onstitutio statutes# or b* a process of logical reasoning. La& students

6ust# there realise the great potential for interaction bet&een legal philosoph* legal practice.It 6a* be unreasonable to clai6 that &ithout stud*ing 8urisprudY one cannot

understand la&. -o&ever# it 6a* reasonabl* be clai6ed if 6uch fuller appreciation of la& is conferred through the stud 8urisprudence. e can speak or &rite a language&ithout learnin8 gra66ar. The stud* of gra66ar# no doubt# enables us to use the lang6ore effectivel* and sharpl* as a 6ediu6 of co66unication. urisprudY has been rightl*described as the gra66ar of la&.

+omparati:e La!

The i6portance of )o6parative La& is e6phaticall* recognised in -olla observation/>urisprudence is i6possible unless it is preceded )o6parative La&.>

e have alread* 6ade a brief reference to )o6parative La& earlier. S &e &ill discussvarious aspects of )o6parative La& in 6ore detail# generall* use the &ord la& &ith a prefi3 to denote a particular brand la&. E3a6ples are cri6inal la&# constitutional la&#environ6ental la&# lab la& etc. -o&ever# &hen &e use the ter6 >)o6parative La&> &edo refer to an* particular branch of la& in the above sense. The to )o6parative La&denotes a 8urisprudential 6ethod or techniue of sti and research of the la&s of differentcountries co6parativel* and is# therefc

,"




not a distinct branch or depart6ent of la&. The process of co6paring rules of la& takenfro6 different s*ste6s does not result in the for6ulation of independent rules for theregulation of hu6an relationships or transactions. There are no co6parative rules of la&#

and there are also no transactions or relationships# &hich can be described asco6parative. According to -E +utteridge# a &ell'kno&n e3ponent of )o6parative La&/>)o6parative La& is an unfortunate# but generall* accepted label for the co6parative6ethod of legal stud* and research &hich has co6e to be recognised as the best 6eans of pro6oting a co66unit* of thought and interests bet&een the la&*ers of different nationsand as an invaluable au3iliar* to the develop6ent and refor6 of our o&n and other s*ste6s of la&.>

The !oca/ulaire Jridi6ue defines )o6parative La& as a branch of legal science &hoseob8ect is to bring about s*ste6aticall* the establish6ent of close relations bet&een thelegal institutions of different countries. In this definition# +utteridge observes# >ZKe hear the voice of the unificationist &ho regards co6parative research as of little i6portance

e3cept in so far as it operates to pro6ore the movement in favour of international uniformity of la&.>Interest in the la&s of foreign countries and co6parisons of la&s is not so6ething ne&.

Aristotle is said to have studied !@; )onstitutions in order to find out the best for6 of political co66unit*. In the 6iddle ages# )anon La& and Ro6an La& &ere co6pared. Inthe si3teenth centur* England# the respective 6erits of the )anon La& and )o66onLa& &ere debated. -o&ever# the develop6ent of )o6parative La& as a science is a6ore recent develop6ent. The use of the ter6 >)o6parative La&> &as established onl* inthe nineteenth centur*. Its i6portance &as recognised# and its 6ethod and ai6s &eres*ste6aticall* studied during this period. T&o factors &hich led to the popularit* of co6parative studies of la& are the increasing identification of la& &ith geographicall*defined nation states# and the setback to the idea of a universal la&. The unprecedentede3pansion in international relations accelerated this process. )o6parative La& hasgained so 6uch acceptance toda* that it is ad6itted to be a necessar* part of an* legalculture and training.

In the beginning# discussions on )o6parative La& &ere 6ainl* focused on its ai6s andnature# its place a6ong the sciences# its 6ethods# possible applications# and generalusefulness. The 6ost freuentl* raised uestions in these discussions &ere/ &hether )o6parative La& &as an autono6ous bod* of legal kno&ledge or si6pl* a 6ethod (theco6parative 6ethod applied to established legal scienceG &hether it &as a field# distinctfro6 co6parative legal histor*# general legal theor*# and the sociolog* of la&. urther# in&hat precise areas of la&# &ould co6parison be especiall* useful#

71



Lectures in Jurup'dence

and &hat la&s could properl* and profitabl* be co6paredF hat &ere the dangers inco6parative legal studiesF As )o6parative La& got fir6l established# these uestionslost 6uch of their i6portance and relevanct No&# the challenges of )o6parative La&

are to convince those &ho re6ain skeptical about the general utilit* of )o6parativeLa&# and to find 6ean to assist those &ho &ant to use )o6parative La& for their o&n purposes#K The usefulness of )o6parative La& 6a* convenientl* be anal*sed undothree heads# viH# (i its relevance in historical and philosophical legal researct8 (ii itsi6portance in understanding and i6proving national la&G and its i6portance in pro6oting the understanding of foreign la&s# an contribution to the creation of a conte3tfavourable to the develop6ent o international relations. No& &e &ill consider thesethree heads in so6i detail.

Re0e:ance in 2istorica0 and %"i0osop"ica0 Le$a0 Researc"

)o6parative La& &as first recognised as i6portant in the nineteenJ centur* because of the &orks of scholars like ontesuieu# -enr* aine#J and 7ohler. These &orks studieddifferent legal s*ste6s in order toG# de6onstrate# in an historical perspective# the progressof hu6anit* )o6parative studies in legal histor* succeeded in thro&ing light on thUorigins of the idea of la&# and in providing a better understanding of certain institutions#and rules of ancient la&. Earl* Ro6an la&# +er6anic la&# and eudal la& have beenclarified in 6an* respects through the use oil )o6parative La&. ( The contribution of )o6parative La& to legal philosoph* 6ainl* lies in identif*ing the variations# &hiche3ist in the ver* concept of la& itself. 9tudies b* )o6parative La& scholars haveunravelled the e3istence of societies &here the &estern notion of la& &as altogether unkno&n# or &here la& &as s*non*6ous &ith force or a s*6bol of in8ustice# or &as

inti6atel* linked to religion. These studies have established be*ond doubt the crucial#role that )o6parative La& can pla* in the develop6ent of legal philosoph*.The uestion &hich arises is as to ho& can 8urisprudence and general legal theor*

benefit fro6 )o6parative La&. hen an observer places hi6selfG outside his o&n legals*ste6# or in other &ords# &hen he adopts a co6parative perspective# it enables hi6 tounderstand and anal*se historical origins of the classifications kno&n to an* s*ste6# therelative character of its concepts# and the political and social conditioning of itsinstitutions# hen &e tr* to understand the sources and 6ethods of different legals*ste6s# &e realise that so6e legal s*ste6s consider codification and enacted la& as progressive 6odes for giving e3pression to legal rules# and 8udicial decisions areconsidered 6erel* as a 6eans of appl*ing the la&. )o6parative

,5




La& de6onstrates that there are other legal s*ste6s# no less de6ocratic# &hich re8ectcodification as the onl* 6ethod of giving e3pression to legal rules# and &hich assign a6ore i6portant and creative role to the 8udiciar*.

Understandin$ and (mpro:in$ Nationa0 La!

)o6parative La& helps us to gain a better understanding of our o&n national la&# and ini6proving it. The i6portance of )o6parative La& in )onstitution 6aking is a6pl*illustrated b* the )onstitution of India. = The fra6ers of the Indian )onstitution#undertook a co6parative stud* of various constitutional processes operating in differentcountries of the &orld. This e3ercise helped the6 to fashion a constitutional s*ste6suited to the political# social# and econo6ic e3igencies of India. The )onstitution of India# &hich has finall* e6erged after such e3tensive co6parative studies# affordsi66ense opportunities for e3haustive studies and research to a student of )o6parative

La&. The influence of the )onstitution of Q9A on the federal provisions of the Indian)onstitution# unda6ental Rights# and the a6ending process# is obvious. The parlia6entar* s*ste6 of govern6ent is b* and large 6odelled on $ritish constitutionaltheories and practices. The po&ers# privileges# and i66unities of the Indian Parlia6ent#and state legislatures have not been defined in the )onstitution# but stated to be si6ilar tothose en8o*ed b* the -ouse of )o66ons. The s*ste6 of prerogative &rits# another significant institution borro&ed fro6 England# pla*s a crucial role in protecting the legalrights of individuals and ensuring 8udicial control over ad6inistrative action. Theinfluence of the Australian )onstitution could be seen in the provisions relating to centre'state financial relations# and freedo6 of trade and co66erce. The Directive Principles of 9tate Polic* contained in Pt I of the )onstitution have been inspired b* the )onstitution

of Ireland. The elaborate e6ergenc* provisions in our )onstitution o&e 6uch to the+er6an )onstitution. Apart fro6 adopting suitable provisions fro6 several )onstitutions#the Indian )onstitution also contains 6an* innovative provisions# &hich have influenced)onstitution'6aking in developing countries# notabl* 9outh Africa.

The practical utilit* of )o6parative La& to the la&'6aker can hardl* be e3aggerated.hen a $ill is under the consideration of the legislature# co6parable provisions of si6ilar legislation e3isting in other countries &ill be of great use. After a careful stud*# provisions found suitable to the prevailing conditions of the state could be accepted# andothers re8ected. or instance# &hile enacting a la& on freedo6 of infor6ation# Indian parlia6entarians considered the provisions in si6ilar legislations alread* e3isting inother countries. Parlia6entar* co66ittees# to &hich $ills are

,2




generall* referred for scrutin*# often undertake such co6parative studies it order todecide the best 6odel for the countr*. an

udges and la&*ers also derive great benefit fro6 )o6parative La&. As en people

directl* concerned &ith the effective application of la&# the* find glY co6parative studiesto be of great practical utilit*. The persuasive influence cr of the doctrines developed b*A6erican and English 8udges on Indiai co 8udiciar* has been reall* re6arkable. e find

this influence greater in the ef field of constitutional and ad6inistrative la& than in other

branches oi gt la&. of The best illustration of the value of )o6parative La& for a

practisint <a= la&*er could be seen in an A6erican case relating to the &orking hours o

&o6en. In this case#, a la&*er na6ed $randeis# &ho later beca6e a 8udge of the9upre6e )ourt of Q9A# presented his brief containing relevant statistical data collectedfro6 different countries. -e &as thus able to convince the 8udges hearing the case of theneed to accept the nor6s adopted [< b* several civilised nations of the &orld. The

9upre6e )ourt# &hilt st/ accepting the contentions of $randeis# declared that the vie&s

adopted bj w' several civilised countries cannot be considered as capricious. The 6ethod pi of presenting a brief containing socio'econo6ic and co6parative data ca6t 8u to bekno&n as >$randeis $rief. )o6parative La&# thus# provides e3cellent at opportunities forresearch'oriented la&*ers in their professional career. -is

The i66ense utilit* of )o6parative La& for legal acade6ics is 6uch 7h 6oresignificant. )o6parative studies and research on various critical pK proble6s enrich legalliterature# and influence la&'6akers and 8udges. Toda* Gn &e find a greater 6ove6ent of

la& students and researchers to foreign 8. countries in pursuit of advanced studies andresearch. In toda*>s &orld of increasing global co66unications and trade# no legals*ste6 can afford to<U re6ain isolated. Not surprisingl*# therefore# the i6portance of

)o6parative La& is being increasingl* recognised no&. <\The utilit* of )o6parative La& for foreign diplo6ats posted in different j countriesdeserves special 6ention. The indepth kno&ledge of the la& of < the countr* to &hich thediplo6at is posted is essential for hi6 &hen<< several agree6ents concerning varied

sub8ects are prepared and signed b*-c> both countries. ithout adeuate kno&ledge of

)o6parative La&# no sucii>] agree6ent should be drafted# since it 6a* lead to future

conflicts inHC( interpreting the provisions of the agree6ent. r >rY

De:e0opment o& (nternationa0 Re0ations

Is tB n

r , $utter v State of (re)on ,%: Q9 "!% (!1%2.

,:






ore than 6ere peaceful co'e3istence# ne& for6s of co'operation develop a6ong thenations of the &orld# especiall* in relation to co66unications# environ6ent# technolog*and trade. This process is accelerated b* globalisation. In all these spheres of

international co'operation# la& pla*s a crucial role. Cne has to gain kno&ledge of thela&s in &hich different countries give e3pression to their sense of 8ustice and regulate# inthe light of their respective political vie&s and the variet* of state structures. The 9tatuteof the International )ourt of ustice recognises >general principles of la& recognised b*civilised nations> as one of the sources of international la&. The interpretation of this provision can be based onl* on a#n understanding of )o6parative La&.

Another potential field# &here )o6parative La& can contribute a great deal is privateinternational la&. This branch of la&# also kno&n as >)onflict of La&s># consists of rules&hich deter6ine &hether the courts of a particular state are co6petent to hear a dispute&ith a foreign ele6ent# and if so# &hich la& 6ust be applied to ad8udication of thedispute. hile stud*ing private international la&# one realises that conflicts of la&s and

conflicts of 8urisdiction are 6ost often resolved in a countr* &ithout pa*ing an* attentionto the rules appl*ing in other countries. The conseuence of this is uncertaint* about theresult of litigation# and conflicting solutions to the sa6e proble6 fro6 one countr* to theother. )o6parative La& can pla* an i6portant role in introducing a degree of coherencein private international la&. It can# b* dra&ing the attention of the national courts to the&a* in &hich the proble6 put to the6 is resolved b* legislations or courts of other countries# encourage the acceptance of unifor6 rules.

Qnification of La&

The unification of the la& touching international legal relations are# as Rene David and$riefl* rightl* observe# undoubtedl* a 6a8or conte6porar* challenge. According to+utteridge/ >Qnification can onl* be achieved b* length* and patient efforts &hich &illulti6atel* convince those in all countries &ho are in a position to sponsor and carr*through changes in the la& that it is a 6atter of urgent necessit* to take steps in order tore6ove sources of inconvenience and friction in the international sphere.> $* unification#&e do not 6ean replace6ent of national la& &ith a unifor6 supra'national la&. It onl*i6plies a certain a6ount of har6onisation through a variet* of techniues# such asinternational conventions and 6odel contracts# &hich &ill result in i6prove6ent of international relations. )o6parative La&# b* revealing the points of real agree6ent and

,1



E&&orts to esta;0is" a !unu @ <MJtfB<JM

" » w - > t rt& Nations a&ter #or0d #ar /. any u<Hc

"oped t"at t"e +ttaut ... . -= ... =.==' = ->u

&or a00 nations and o& a00 times= !ou0d ;ecome a rea0ity. 2o!e:er= &ai0ure o& t"e

Lea$ue o& Nations s"attered a00 suc" "opes. Later= esta;0is"ment o& t"e United

Nations and t"e acceptance o& t"e Uni:O Dec0arations o& 2uman Ri$"ts re:i:ed"opes a;out an emer$in$ ! 0e$a0 order. , num;er o& internationa0 con:entions and

treaties on "ur ri$"ts= en:ironment= trade etc came into existence under t"e auspice

the United Nations= and pro:ided a &rame!ork &or uni&orm 0a!s t"rou$0 t"e !or0d.

)oday= internationa0 trade s al6ost totall* do6inated b* @t#)i0 t.t<ttetu on

)ari&&s and )rade P@,))Q /99= and t"e ru0O

t"e #or0d )rade r$anisation (TC. It is 6andator* lor all Si$n countries to

amend t"eir municipa0 0a!s so as to con&orm to t"e pro: o& @,)). ,s a

conseFuence= !e may say t"at today a0most t"e entire is $o:erned ;y a common

inte00ectua0 property ri$"ts 0a!. #"i0e t"e ci trends indicate a s"i&t to!ards $reater

uni&ication= t"ose !"o oppose a mo:e ar$ue t"at nationa0 0a!s are t"e product o& t"e pecu0iar O economic en:ironment o& a country= and it !ou0d ;e un!ise to intr a

uni&orm set o& ru0es &or countries !it" :aryin$ cu0tures.

+omparati:e La! as an ,utonomous ranc" o& Le$a0 Kno!i

e&ore conc0udin$ t"is discussion= it is necessary to point out di&&icu0ties in:o0:ed in

t"e comparison o& di&&erent 0a!s. )"e &irst pi is t"at o& 0an$ua$e and :oca;u0ary. ,

0e$a0 system in some ot"er c may "a:e a tradition= structure= and met"ods entire0y

di&&erent &rc o!n= and may ;e operatin$ in a tota00y di&&erent socia0 and economic c

La! courses and institutions de:oted to t"e study and resea +omparati:e La!

main0y aim to de:e0op +omparati:e La! autonomous ;ranc" o& 0e$a0 kno!0ed$e=and to train a cate$ory o& !"o can proper0y ;e termed comparatists. )"eir task is

to prep $round &or ot"ers !"o !ant to adopt a comparati:e met"od in t"eir &ie0ds.

(n ot"er !ords= comparatists= ;y !ay o& $enera0 studies o& socia0 and 0e$a0

structures= create t"e conditions necessary &or dia0o$ues.

a<or @0o;a0 Le$a0 Systems

Undou;ted0y= t"ere is a $reat di:ersity o& 0a!s in t"e modern !c anyone !"o

!ants to em;ark on a comparati:e study= t"is di:ers

45




appear to be an insur6ountable proble6. )o6paratists have atte6pted to identif* ali6ited nu6ber of t*pes or categories &ithin &hich this diversit* can be organised. Thiscategorisation or classification of la&s into >fa6ilies> is done on the basis of the constant

and 6ore funda6ental ele6ents# rather than the less stable rules found in the la&. 9uchclassifications si6plif* presentation# and facilitate an understanding of the &orld>sconte6porar* la&s. -o&ever# the proble6 is that different &riters base their classification on different criteria.

T&o conte6porar* e3ponents of )o6parative La&# Rene David and ohn E)

$rierle*#; recognise three legal fa6ilies# &hich occup* an uncontested place of pro6inence. The* are Ro6ano'+er6anic fa6il*# )o66on La& fa6il*# and fa6il* of 9ocialist La&. It is to be re6e6bered that there are other s*ste6s such as the -indu La&#usli6 La& or e&ish La& situated outside these three traditions or sharing onl* part of their conception of things# &hich prevail in a large nu6ber of conte6porar* societies.

No& let us e3a6ine the 6ain features of the three pro6inent legal fa6ilies.

Ro6ano'+er6anic a6il*

This fa6il*# &hich is also kno&n as the civil la& s*ste6# includes those countries in&hich legal science has developed on the basis of Ro6an hiscivile*

The rules of la& are conceived as rules of conduct inti6atel* linked to ideas of 8usticeand 6oralit*. Another feature of this fa6il* is that the la& has evolved as an essentiall* private la& for regulating the private relationships bet&een individual citiHens. Cther branches of la& &ere developed later according to the principles of civil la&. )ountries belonging to this fa6il* attach special i6portance to enacted legislation in the for6 of

codes.This fa6il* of la&s# &hich originated in Europe# spread to other territories as a result

of colonisation. e also find voluntar* reception of the civil la& s*ste6 in countries#&hich &ere not colonised# 6ainl* as a result of their desire for 6odernisation. In so6e of these countries the reception has been partial# leaving so6e legal relations sub8ect to the principles of the traditional# local la&.

)o66on La& a6il*

This fa6il* includes England# and countries &hose la&s are 6odelled on English la&.The )o66on La& &as for6ed pri6aril* b* 8udges in the

; $a&or Le)al S%ste's of the +orld Toda%# !1:@.

;!





Lecture 4

Sources o& La! /- Le$is0ation

(ntroduction

Cne uestion that freuentl* co6es to our 6ind is as to &hat is the source of la&. ost people 6a* think of Acts passed b* the legislature as the source of la&. -o&ever# if &ethink further on this uestion# it 6ust necessaril* occur to us that there are 6an* other sources of la& as &ell. The ver* e3pression >source of la&> is not free fro6 a6biguit*.9o6e 8urists even 6ake a distinction bet&een >la&># and >sources of la&>. ohn )hip6an+ra* considers la& as the rules authoritativel* laid do&n b* the courts in their decisions.

According to hi6# sources of la& are certain legal and nonlegal 6aterials upon &hich 8udges custo6aril* fall back in fashioning the rules &hich structure the la&. 9uch sourcesinclude Acts of legislative organs# 8udicial precedents# custo6s# opinions of e3perts# and principles of 6oralit*. The approach of +ra* and those &ho support hi6 consider onl*the rules laid do&n b* the courts as la&# and ever*thing else as the sources of la&. Cther &riters# follo&ing a different approach# euate sources of la& &ith the officialauthoritative te3ts fro6 &hich for6ulated legal rules usuall* derive their force. Theseinclude the )onstitution# statutes# treaties# e3ecutive orders# 8udicial opinions etc. êtanother sense in &hich the e3pression >sources of la&> is used is to denote certain bodiesof la& &hich have served as traditional reservoir of legal rules and principles# such as the)o66on La&# euit*# and the )anon La&.

Let us# for the 6o6ent# leave aside the controvers* over the 6eaning of the e3pression>sources of la&># and tr* to find out &hat are the different sources of la&. A clear understanding of the sources of la& is ver* i6portant for a proper understanding of thenature of la&. A stud* of the sources of la& is also i6portant because it helps us toans&er uestions about the validit* of la&.

9ources of la& are often divided into for6al and 6aterial sources. 9al6ond




defines a for6al source of la& as that fro6 &hich a rule of la& derives its force andvalidit*. In other &ords# it is the &ill of the state as 6anifested in statutes or decisions of courts. A 6aterial source of la& is that fro6 &hich is derived the 6atter# not the validit*

of la&. A fa6iliar e3a6ple of the 6aterial source is custo6. The rule applied b* a 8udgein deciding a case 6a* be dra&n fro6 a custo6# but &hat gives it legal force is not thecusto6# but the sole6n deter6ination of a court.

It is co66on kno&ledge that in the 6odern state# the la& is nor6all* created b* thefor6al act of legislation# or b* the decision of a court. La& 6a* also be created b* the actof a subordinate person# or a group of persons acting &ithin the li6its of delegatedauthorit*. These are the for6al sources of la&. aterial sources include an*thing that6a* be dra&n into the process of la& 6aking. The* range fro6 a custo6 of theco66unit* to a principle of ancient Ro6an La&# Isla6ic La&# or -indu La&# fro6 8uristic &ritings to decisions of foreign courts. hile all these 6a* influence the processof la&'6aking# it is i6portant to re6e6ber that the* have to be filtered through a for6al

source in order to attain the ualit* of la&. hen a uestion arises as to &hether a particular proposition is a valid proposition of la&# &e need a criterion of validit* toans&er that uestion. Ever* legal s*ste6 la*s do&n the criteria of validit*# &hich a proposition has to satisf* before it is considered as a valid proposition of la&.

Another &a* of classif*ing sources of la& is into legal# and historical sources. Legalsources are those sources &hich are recognised as such b* the la& itself. -istoricalsources are the sources lacking for6al recognition b* the la&. Legal sources of la& areauthoritative because courts readil* accept the6 as such. -istorical sources# though notauthoritative# are i6portant because the* influence the course of legal develop6ent.Legal sources are said to be the onl* gates through &hich ne& principles can findentrance into la&. hen &e sa* this# &e are stressing the authoritative nature of the legalsources. -o&ever# this does not den* the i6portance of historical sources. Infact# all rulesof la& have historical sources.

It is also i6portant to re6e6ber that in ever* legal s*ste6 there are certain ulti6ate principles fro6 &hich all rules are derived. This idea 6a* be e3plained better &ith anillustration. The rule that a person 6ust not allo& &aste &ater to flo& fro6 his kitchen or toilet to a public road 6a* have its source in the b*ela&s of a 6unicipal council. The rulethat these b*ela&s have the force of la& has its source in a legislative enact6ent na6el*#the Pancha*ati Ra8 Act. e can also trace the source of authorit* of this Act to the)onstitution of India. hen a further uestion is asked as to &hat is the source of the rulethat the )onstitution has the fo8e of la&# &e 6a* have to sa* that it is onl* historical# notlegal. Thus# &e 6a* have to conclude

;"



Sources of Law I: Le)islation

that the ulti6ate source is al&a*s historical# and not legal. The validit* of the)onstitution is assu6ed or accepted as self'e3istent.

In 8urisprudence# &e are 6ainl* concerned &ith the legal sources of la& fro6 &hich

la& 6a* be found to proceed. These sources are# inter alia# &ritten )onstitution#legislation# 8udicial precedent# and custo6. 9o6e people include &ritings of e3perts alsoas a legal source# but it is debatable &hether such &ritings constitute a legal source# or re6ain onl* as a historical source. It is co66on kno&ledge that toda* la& proceeds6ainl* fro6 t&o legal sources# na6el* legislation# and precedent. Legislation is the6aking of a la& b* the for6al and e3press declaration of a recognised authorit*# ver*often the legislature of the state. It is accepted as the 6ost po&erful instru6ent of legalrefor6. Precedent denotes the 6aking of la& b* a declaration and application thereof b*the court in a decision in the course of ad6inistration of 8ustice. To these t&o 6a8or sources of la& &e 6a* also add )usto6ar* and )onventional La&s. )usto6ar* La& isconstituted b* those custo6s# &hich fulfill the reuire6ents laid do&n b* la&s as the

condition of their recognition as obligator* rules of conduct. )onventional La& isconstituted b* agree6ents having the force of special la& inter partes# in derogation# of or in addition to# the general la& of the land. The legal sources of la& 6a* be categorisedas follo&s/

(i enacted la& having its source in legislationG (ii case la& having its source in precedentG(iiicusto6ar* la& having its source in custo6G and (ivconventional la& having its source in agree6ents.

e &ill no& discuss in detail the various aspects of legislation as a source of la&# postponing the discussion of other legal sources to subseuent lectures.

Le$is0ation- Nature and eanin$

Legislation 6eans la& 6aking. It also refers to the la&s 6ade b* the legislature. In a&ider sense# it includes all the sources of la&# an* act done &ith the effect of adding to#or altering the la&. hen a 8udge establishes a ne& principle in a 8udicial decision# it is possible to sa* that he has e3ercised legislative po&er# and it is also legislation in the&ider sense of the ter6.

Legislation is generall* used in a 6ore li6ited sense.it denotes the la*ing do&n of legal rules b* a sovereign or subordinate legislature. An i6portant distinction bet&eenla&'6aking b* a legislature and la& 6aking b* a court 6ust be clearl* understood.hen the legislature 6akes a la&# it does not have an* actual disputes before it# and itla*s do&n general

;@






rules for the future# &ithout reference to an* actual dispute. )ourts# other hand# areengaged in the settle6ent of disputes# and an* la&' that the* 6a* do is onl* &ithreference to actual disputes before the onl* insofar as is necessar* for their solution.

Thus# 6a* sa* that la&'6aking is incidental to the solving of legal disputesG &hile la&'is the 6ain function of the legislature.The legislature of a state perfor6s 6an* functions other than la&>i In a &ider sense#

all its functions are included &ithin the ter6 >legi -o&ever# in a 8urisprudential sense#legislation includes onl* an e3 of the &ill of the legislature directed to the 6aking of therules Thus# legislation 6a* be defined as the enunciation or pro6ulgG la&s b* thelegislature of the state. It is the for6al declaration of i rules b* the legislative organ of the bod* politic.

Legislation is 6ost accuratel* ter6ed enacted la&# all other forn distinguished as un'enacted. In Ro6an La& there &as a division / )usto6ar* La& 8'us non scriptum9, andother la& 8'us scriptum9. Tl fa6iliar to an English la&*er are )o66on La&# and

statutor* lav like $lackstone prefer to use the e3pressions &ritten and un&rittei indicatethe distinction. In 6odern de6ocracies# the la&'6aking K vested in a bod* of electedrepresentatives of the people. If the federal# there &ill be a la&'6aking bod* at the)entre# and each i also have its o&n la&'6aking bod*.

The significant uestion that arises in relation to legislation is re the legal li6its of the po&er to enact la&. This is further co6plic the presence of entrenched unda6entalRights in the )onstitutior li6it the la&'6aking po&er of the legislature. It is obvious thatY legal s*ste6s have different approaches to the proble6 of legislativi -istoricall*#England has been follo&ing the principle of parlia6ent sovereignt*# &hich practicall*6akes the legislature o6nipotent in the feeld of legislation.

-o&ever# recent develop6ents have placed several restraints la&'6aking po&er of the $ritish Parlia6ent casting a shado& of a out on its o6nipotence# and diluting theconcept of parlia6entar* sovi The first step in restricting parlia6entar* sovereignt* &astake $ritain beca6e a 6e6ber of the European )o66unit* in the *es 9ection , of theEuropean )o66unit* Act !12,# passed b* Parlia6ent in !12,# stated that parlia6entar*statutes# both past anc shall take effect sub8ect to co66unit* la&. e find a change inthe tra approach of the $ritish courts to the uestion of parlia6entar* sov in : v

ecretary of tate for 1ransport, e7 p Factortame.! It &as affirn

/ A/99/B / ,+ 654.

46




the doctrine of parlia6entar* sovereignt* had been superseded b* a ne&hierarch* of legal rules# and that the co66unit* treat* obligations had indeed6ade it possible for the Parlia6ent to bind its successors.

The enact6ent of the -u6an Rights Act b* $ritish Parlia6ent in the *ear !11: is another significant step. This Act incorporated the European)onvention on -u6an Rights !1@% (>European )onvention> into do6estic la&.The Act provides that if an* $ritish legislation is found to be inco6patible &iththe provisions of the European )onvention# a court can issue a declaration of inco6patibilit*. This is fairl* si6ilar to 8udicial revie& of legislation being practised b* the courts in India or Q9A. -o&ever# technicall* the doctrine of parlia6entar* sovereignt* is protected b* providing that even after a court has6ade a declaration of inco6patibilit*# the statute continues to be enforceable. Itis generall* agreed that this protection is onl* technical# and the declarationconstitutes a serious 6oral li6itation on parlia6entar* sovereignt*. The effect

of the declaration of inco6patibilit* is illustrated b* a recent decision of the)ourt of Appeal in , v $ental -ealth ,eview Tribunal orth and East London ,e)ion. In this case# the )ourt of Appeal declared s 2; of the ental-ealth Act !1:; inco6patible &ith art @ of the European )onvention. Therelevant provision &as pro6ptl* a6ended in order to 6ake it co6patible &iththe European )onvention.

In India# the unda6ental Rights guaranteed in part ; of the )onstitution#and the distribution of legislative po&ers bet&een Qnion Parlia6ent and statelegislatures in 9ch II of the )onstitution li6it the la&'6aking po&ers of theParlia6ent and state legislatures. An* la& enacted b* the legislature does notauto6aticall* attain the ualit* of la&G it has to satisf* a further criterion of validit*# na6el* the test of constitutionalit*. The test of constitutionalit* isapplied b* the 8udiciar*. This gives the 8udiciar* the po&er to decide &hether ala& enacted b* the legislature is

ne valid. Legislation thus loses its do6inating position as a source of la& to

btso6e e3tent. The po&er of the 8udiciar* to sit in 8udg6ent over la&s enactedt*.b* the legislature raises not onl* uestions concerning the relative i6portanceenof legislation and precedent# but also ver* i6portant 8urisprudential uestions34.concerning the inter'relationship bet&een the legislature and the 8udiciar*# ish

ire# Di&&erent *orms o& Le$is0ation

ntvLegislation 6a* be broadl* classified as supre6e# and subordinate. 9upre6e

hatlegislation proceeds fro6 the supre6e or sovereign po&er in the state and

7 A7557B F; /.

43






is# therefore# incapable of being repealed# annulled# or controlled b* an* other legislativeauthorit*. 9ubordinate legislation proceeds fro6 an* other authorit*# and is dependent for its validit* on so6e superior or supre6e authorit*. In a 6odern state# the tasks of a

legislative bod* are so 6anifold and co6ple3 that the* cannot be perfor6ed effectivel* b* that bod* alone. atters of detail# 6atters reuiring specialised kno&ledge or e3pertise 6a* put an e3orbitant burden and strain on the shoulders of a legislative bod*.It has# therefore# beco6e a co66on practice to delegate a part of the la&6aking po&er tothe govern6ent or autono6ous bodies. It is i6portant to re6e6ber that the authorit* of asubordinate bod* to legislate is derived fro6 the sovereign legislature. 9ubordinatelegislation can be repealed b* and 6ust give &a* to sovereign legislation. 9ubordinatelegislation is sub8ect to parlia6entar* control.

ive different for6s of subordinate legislation can be identified. These are/

i

+o0onia0 Le$is0ation

This denotes the li6ited la&'6aking po&er en8o*ed b* the colonies# sub8ect to thecontrol of the i6perial legislature. The i6perial legislature 6a* repeal# alter# andsupersede an* colonial enact6ent. This is the first and the 6ost i6portant species of subordinate legislation# though its i6portance has di6inished along &ith the decline of colonialis6. An i6portant principle of delegation is dele)atus non potest dele)are# ie# adelegatee cannot further delegate. The uestion &hether a colonial legislature candelegate its legislative po&ers &as raised in Re Powell !polb Candle Co It &as held thata colonial legislature is not a 6ere delegate of the i6perial Parlia6ent# and hence candelegate its legislative po&ers to other bodies# &hich are dependent upon it.

Executi:e Le$is0ation

hen legislative po&ers are delegated to the e3ecutive# it is called e3ecutive legislation.Though the essential function of the e3ecutive is to i6ple6ent the la&s and carr* on thead6inistration# it is al&a*s entrusted &ith so6e subordinate legislative po&ers also.Toda*# practicall* ever* la& enacted b* the legislature contains delegation clausesconferring la&'6aking po&ers on the e3ecutive to supple6ent the statutor* provisions.)o66on La& also recognises the prerogatives of the )ro&n to 6ake la&s for theterritories# acuired b* conuest or cession# &hich do not possess their o&n legislatures.

4 A/881B ,+ 787.

;:




Judicia0 Le$is0ation

The po&er of the superior courts to 6ake rules for the regulation of their o&n procedure

is considered as a delegated legislative po&er. This is 8udicial legislation in the truesense of the ter6. La&'6aking b* courts b* &a* of precedents is not considered as aninstance of delegated legislation.

unicipa0 Le$is0ation

unicipal authorities# &hich are units of local self'govern6ent# are given li6ited andsubordinate la&'6aking po&ers b* the enact6ents establishing the6. The b*ela&s or regulations 6ade b* 6unicipal authorities b* virtue of the delegated po&ers areapplicable onl* &ithin the territorial li6its of such authorities.

,utonomous Le$is0ation

All the above kinds of subordinate legislation proceed either fro6 the state# or fro6 oneor other of its 6an* subordinate depart6ents. -o&ever# legislation is not necessaril*li6ited to the state. In e3ceptional cases# the state delegates legislative po&er to certaingroups of private individuals. In such cases# the li6ited legislative po&er given to suchgroups are confined to 6atters &hich concern the6. A registered co6pan* 6a*# for e3a6ple# alter its articles of association# thereb* changing its constitution and6anage6ent. This kind of delegated legislation is categorised as autono6ous.Autono6ous legislation rese6bles conventional la& in so6e respects. êt an i6portantdifference bet&een the t&o 6ust not be forgotten. )onventional la& is al&a*s a productof agree6ent. Autono6ous la&# on the other hand# is the product of a true for6 of legislation# and is i6posed b* superior authorit*. It does not depend on agree6ent of parties for its validit*. or instance# &hen the articles of association of a co6pan* arealtered b* a 6a8orit* of shareholders# it &ould also be binding on the 6inorit* &ho didnot agree to the alteration.

De0e$ated Le$is0ation and ,utonomic Le$is0ation

9o6e 8urists 6ake a distinction bet&een delegated and autono6ic legislation. The*consider la&'6aking po&ers e3ercised b* virtue of delegation b* the supre6e la&'6aking authorit* as delegated legislation. Autono6ic legislation# on the other hand#originates fro6 the po&er of persons or organisations other than the govern6ent to 6akela&s or adopt rules essentiall* si6ilar in character to la&s. 9uch po&er &as e3ercised in

;1





earl* societies b* the heads of fa6ilies# and later b* the )hurch and religious groups. Thestate>s authorit* and po&er &as rather &eak d that period. +raduall*# the public po&er of the state began to supplG restrict the private po&er of the head of the fa6il* for the purp protecting his &ife and children fro6 arbitrar* and autocratic e3en po&er b* hi6.-o&ever# the po&er of religious groups to regulate o&n affairs is to a large e3tent

retained even in a 6odern secular stati po&ers en8o*ed b* such groups cannot be said too&e their e3istenc 6ere delegation b* the state.The po&ers of (i corporations and other associations to enact artl associations and

b*ela&sG (ii trade unions to regulate the rights and of their 6e6bersG and (iii professional associations of la&*ers and d to 6ake rules of discipline and professionalethics# are also included categor* of autono6ic legislation. The fact that such po&ers e3 per6ission of the state and &ithin the li6its of the constitutional s does not deprive the6of their autono6ic character because a subsi a6ount of private po&er to regulate &ithincertain boundaries is st intact. The noted 8urist Lon L uller# rightl* calls such enclavesof autoi legislation >6iniature legal s*ste6s>. Autono6ic legislation is ver* si6ilar toautono6ous legislation# &hich &e have alread* e3plained G of the categories of delegated

legislation. urists like Edgar $odenh consider it as a distinct categor* of legislation# andnot as a categi delegated legislation.

,d:anta$es o& Le$is0ation

A co6parative anal*sis of legislation and precedent# &hich are the 6ain sources of la&#reveals 6an* advantages of legislation over prea These are as follo&s/

(i The process of legal evolution necessaril* involves three step (a 6aking ne&la&sG (b repealing old la&sG and (c 6od current la&s. The advantage of legislation is that it can 6ake# i and 6odif* la&s &ith si6plicit* and efficac*.Precedent 6a* ne& la&s and 6odif* current la&sG but in a rigid s*stY precedents# it cannot overrule a settled principle of la&. disadvantage of precedent is graduall* disappearing as the 6 trend is to abandon.the strictdoctrine of precedent. The 9u8 )ourts of 6ost countries# including India andQ9A# and the )ouncil and the -ouse of Lords in England# have the po overruletheir o&n previous decisions. 9till# the po&er of the to overrule &hen co6pared&ith the po&er of the legislati

"%

P:Q

repeal is at a disadvantage# because a court has to &ait until an appropriate case co6es before it for consideration# &hereas the legislature can# on its o&n initiative# repeal a la&an* ti6e it chooses to do so. Legislation# therefore# possesses greater abrogative po&er#and beco6es a 6ore effective instru6ent of legal gro&th and la& refor6.hen the legislature 6akes the la& and the 8udiciar* interprets and applies it# there isdivision of labour leading to increase in the efficienc* of the &ork. This kind of divisionsecures ti6e and opportunit* for 6ature consideration of effects and defects b* t&o



independent bodies. The functional differentiation is ideal for a health* s*ste6 of govern6ent. The difference is blurred &hen the business of 6aking the la&# and that of enforcing it is vested in the 8udiciar*. Precedent is a for6 of la&'6aking &hich co6pelsthe 8udge to 6ake the la&# and to enforce it. The for6ulation of la& b* the 8udge in a precedent is al&a*s conditioned b* the facts of the case. There 6a* not be sufficient ti6e

for reflection on its 6erits and de6erits in relation to the generalit* of cases &ith largediversit* of circu6stances. Legislation can al&a*s co6prehend the generalit* of a proble6 in all its di6ensions. oreover# legislation also satisfies natural 8ustice becausela&s are kno&n before the* are enforced. A precedent operates retrospectivel*# because itis applied to facts &hich occurred prior to the for6ulation of the la&.The e3 post facto nature of precedent is a violation of 6oral 8ustice. In the case of legislation# citiHens get an opportunit* to kno& the la& before the* &ould be charged&ith a violation of it. In the case of a precedent# a person is punished for violating a la& before that la& is 6ade kno&n. This defect of precedent results in greater in8ustice &henone precedent is overruled b* another# 6aking all transactions on the basis of the earlier precedent unla&ful. A 8udge can declare la& onl* in the course of deciding a case actuall*

before hi6. Precedents# therefore# depend on the accidental course of litigation. An*s*ste6atic develop6ent of la& cannot take place through such accidental course of litigation. Legislation# in co6parison# is a 6uch better planned activit*# &hich cananticipate social proble6s# and provide for legal rules to solve those proble6s. It is possible to present a s*ste6atic code of rules to 6eet future contingencies. Thelegislature# in the process of la&'6aking# can also dra& inferences fro6 the variede3perience of a cross section of the co66unit*.

"!



t &i00 no a eap# settle a doubt or

!_ henever it beco6esnecessar* toS ffl < onl* b*

advantage# of le<la3iotu (vii Another advantage of legislation is its superiorit* infor6. It concise# clear# and easil* accessible. A statute enacted b* t legislaturefollo&s a definite for6# and the provisions are stai &ith brevit* and clarit*.udg6ents# on the other hand# 6a* r to several pages# and the task of e3tracting theratio decidendi i difficult one even for persons &ell versed in la&. 9al6ond apobserves/ >)ase la& is gold in the 6ine—a fe& grains of the precic 6etal to the tonof useless 6atter—&hile statute la& is coin of t real6 read* for i66ediate use.>

Disadvantages of Legislation

hen &e co6pare legislation and precedent as sources of la&# &e find tr legislationsuffers fro6 certain disadvantages too. The first a6ong t disadvantages of legislation isits rigid nature. Legislation applies irrespecti of circu6stances# &hereas precedent can be distinguished or 6odifi according to the circu6stances. Precedent is# therefore# 6oreelastic ai fle3ible.

Legislation is h*pothetical in nature# because it proceeds on the basis assu6ed facts.The application of legislation to co6ple3 fact situatio often beco6es difficult. In thecase of precedents# the 8udge shapes the !G &ith reference to real facts# and it is al&a*s possible to shape the la& to si the needs of individual cases. In this sense precedent is6ore practical the legislation.

An advantage of legislation# &hich &e have stated above# is its superiorG in for6&hich 6a*# in so6e cases# beco6e a disadvantage. If the drafti of the la& is defective#its 6eaning beco6es a6biguous resulting in difficuK in application. In case of precedents# on the other hand# the princip assu6e 6ore i6portance than &ords. Thisnaturall* gives the 8udges 6e freedo6 to interpret precedents.

Relation of Legislation to Cther 9ources

It is evident that the various sources of la& are interlinked# and ofti interdependent. In6odern states# legislation assu6es 6ore i6portan than other sources. -o&ever# &ecannot overlook the fact that legislatio

7




as a source of la&# is co6parativel* ne& in origin. Earl* la& &as conceived as &us# ie# the principle of 8ustice rather than as lex# ie# the &ill of the state. The state &as not e3pectedto 6ake the la&# it &as onl* e3pected to enforce it. It &as believed that the rules to be

enforced b* the state are those rules of 8ustice and right# &hich have been divinel*revealed to 6en. The* are found in the ancient custo6s# or in religious faiths and practices. The earliest courts &ere believed to be not the &ork of 6ortal 6en# but the&ork of +ods. It &as onl* later that the po&er of the political rulers to change the la& for achieving political and legal develop6ent &as recognised. The &eakening influence of custo6 and religion on la& strengthened the role of legislation. The e6ergence of independent and i6partial courts to interpret and appl* the &ritten la& and to ad8udicatedisputes# 6ade precedent one of the i6portant sources of la&. As the 8udicial functiongoes be*ond 6ere dispute settle6ent and e3tends to filling the gaps in la&# &hich)ardoHo calls >legislating interstitiall*># precedent beco6es as i6portant or perhaps 6orei6portant than legislation as a source of la&. It is also i6portant to note that the relative

i6portance of different sources of la& is dependent on the stage of develop6ent andfeatures of each legal s*ste6.

+odi&ication

)odification 6eans the reduction of corpus &uris# ie# the &hole bod* of la&# so far as practicable# to the for6 of enacted la&. This follo&s the recognition of legislation as theonl*# or at least the 6ost i6portant# source of la&# other sources being subsidiar* or supple6entar*. The 6ove6ent to&ards codification beca6e strong in Europe in thenineteenth centur*. The rench )ivil )ode# kno&n as the )ode of Napoleon# &as enactedin the *ear !:%". 9oon codes &ere enacted in Austria (!:!!# +er6an* (!:15# and9&itHerland (!1%2. The 6ain 6otive behind codification &as the desire to render the la&

accessible# certain# definite# har6onious# logicall* arranged and si6ple. + Paton"

identifies t&o t*pes of countries# &hich tend to adopt codes/ (i those &ith &ell'developed s*ste6s &here the possibilit* of further develop6ent is re6ote for the6o6entG and (ii those &ith undeveloped s*ste6s# &hich cannot grapple &ith ne&econo6ic proble6s.

Cnce the process of codification is co6pleted# the presu6ption is that ever* case could be decided b* deduction fro6 the provisions of the code. -o&ever# e3perience sho&sthat no code has ever been perfect. The fla&s in drafting# such as a6biguit* and conflict&ith other provisions# have been

Textboo" of Jurisprudence# &ourt" edn= /937.

";



as a source of la&# is co6parativel* ne& in origin. Earl* la& &as conceived as 'us, ie# the principle of 8ustice rather than as le7, ie# the &ill of the state. The state &as not e3pectedto 6ake the la&# it &as onl* e3pected to enforce it. It &as believed that the rules to beenforced b* the state are those rules of 8ustice and right# &hich have been divinel*revealed to 6en. The* are found in the ancient custo6s# or in religious faiths and

practices. The earliest courts &ere believed to be not the &ork of 6ortal 6en# but the&ork of +ods. It &as onl* later that the po&er of the political rulers to change the la& for achieving political and legal develop6ent &as recognised. The &eakening influence of custo6 and religion on la& strengthened the role of legislation. The e6ergence of independent and i6partial courts to interpret and appl* the &ritten la& and to ad8udicatedisputes# 6ade precedent one of the i6portant sources of la&. As the 8udicial functiongoes be*ond 6ere dispute settle6ent and e3tends to filling the gaps in la&# &hich)ardoHo calls >legislating interstitiall*># precedent beco6es as i6portant or perhaps 6orei6portant than legislation as a source of la&. It is also i6portant to note that the relativei6portance of different sources of la& is dependent on the stage of develop6ent andfeatures of each legal s*ste6.

+odi&ication

)odification 6eans the reduction of corpus 'uris, ie# the &hole bod* of la&# so far as practicable# to the for6 of enacted la&. This follo&s the recognition of legislation as theonl*# or at least the 6ost i6portant# source of la&# other sources being subsidiar* or supple6entar*. The 6ove6ent to&ards codification beca6e strong in Europe in thenineteenth centur*. The rench )ivil )ode# kno&n as the )ode of Napoleon# &as enactedin the *ear !:%". 9oon codes &ere enacted in Austria (!:!!# +er6an* (!:15# and9&itHerland (!1%2. The 6ain 6otive behind codification &as the desire to render the la&

accessible# certain# definite# har6onious# logicall* arranged and si6ple. + Paton"

identifies t&o t*pes of countries# &hich tend to adopt codes/ (i those &ith &ell'developed s*ste6s &here the possibilit* of further develop6ent is re6ote for the6o6entG and (ii those &ith undeveloped s*ste6s# &hich cannot grapple &ith ne&econo6ic proble6s.

Cnce the process of codification is co6pleted# the presu6ption is that ever* case could be decided b* deduction fro6 the provisions of the code. -o&ever# e3perience sho&sthat no code has ever been perfect. The fla&s in drafting# such as a6biguit* and conflict&ith other provisions# have been

Textboo" of Jurisprudence# &ourt" edn= /937.

4




found to be the 6a8or dra&backs of codes. These fla&s 6ake it i6possible to decideever* case b* deduction. Therefore# even under a code# interpretation beco6es ani6portant task.

The develop6ent of la& in England has been characterised b* the virtual absence of enacted la&. The )o66on La& developed fro6 case to case. The prevalent opinion &asalso against codification. The first influential 8urist to support codification &as ere6*$entha6. The 6ove6ent for codification gathered so6e 6o6entu6 in England also# butit did not share the enthusias6 of the continental countries# and still lags behind incodification.

It &ill be a 6istake to think that codification involves the total abolition of precedentas a source of la&. Prior to codification# unenacted la& is the principal source# andlegislation is considered as a special instru6ent for occassional 6odification or develop6ent of la&. This relation is altered as codification progresses. Legislation beco6es the principal source# and case la& is considered incidental and supple6ental.

The process of interpretation of the la& gro&s into a bod* of 8udicial co66entar*# &hichgives 6eaning to the &ords and phrases used in enacted la&. A full understanding of thela& is possible onl* &hen an understanding of the provisions of enacted la& issupple6ented b* kno&ledge of case la&. )o66entaries incorporating provisions of statutes and decisions of courts are published in response to this need. Pro6inente3a6ples of such co66entaries are the A6erican La& Institute>s ,estate'ent of !'erican Law# -alsbur%0s Laws of En)land1 and -alsbur%0s Laws of India* Theseco66entaries# though not authoritative and official# have been accepted as dependablee3positions of the la& b* the professional co66unit*.

+odi&ication in (ndia

)odes have been in e3istence in India since ancient ti6es. The codes of anu#â8navalk*a# $rihaspathi# Narada# and Parashar are the 6ost &ell kno&n a6ong theancient Indian codes.

In the 6odern period# atte6pts to codif* the la& in India &ere initiated b* the $ritishrulers &ith the appoint6ent of the irst Indian La& )o66ission under the provisions of the )harter Act of !:;;. This La& )o66ission &ith Lord acaula* as its chair6an#6ade significant contributions through the drafting of a nu6ber of codes# includingIndian Penal )ode# )ode of )ivil Procedure# and Li6itation Act.

The 9econd La& )o66ission# &hich &as appointed in !:@;# did not favour thecodification of -indu La& and usli6 La&. The Third La& )o66ission appointed inthe *ear !:5! &as 6ainl* concerned &ith the

""



Sources of Law 2: Le)islation

ible la& of succession and inheritance# generall* applicable to all persons other de# than -indus and usli6s. The )o66ission>s reco66endations resulted

into the enact6ent of the Indian 9uccession Act !:5@. The Act &as to

ual appl* generall* for all testa6entar* and intestate succession# e3cept thoseise. &ho &ere e3e6pted. -indus# $uddhists and usli6s &ere e3e6pted fro6rial the purvie& of the Act. The Third La& )o66ission>s reco66endationsfor &ere responsible for the subseuent enact6ent of the Negotiablelot Instru6ents Act in !:2!# 9pecific Relief Act in !:2!# and the Indianin )ontract Act and the Indian Evidence Act in !:2,. The )o66ission had

also proposed the draft of the Transfer of Propert* Act# &hich &as againon considered and revised b* the ourth La& )o66ission appointed in thehe *ear !:21.or After independence# the +overn6ent of India took a 6a8or initiativeas to&ards codification of -indu la&. Inspite of opposition fro6 orthodo3

sc sections of the -indu societ*# a nu6ber of Acts# &hich are collectivel*Sn called the -indu )ode# &ere enacted. The* include the -indu arriageig Act !1@@# -indu 9uccession Act !1@5# -indu inorit* and +uardianshipie Act !1@5# and -indu Adoptions and aintenance Act !1@5. These Acts/d appl* to an* deno6inations of -indus and also to ains# 9ikhs# andig( $uddhists. The enact6ent of the 9pecial arriage Act in the *ear !1@5 iso I also considered to be a significant step. It is a secular la& of a generaln nature under &hich an* t&o Indians# irrespective of their religion# 6a*G 6arr*. It is onl* a per6issive and optional la&.e The )onstitution of India places e6phasis on codification of personal* I la&s b* inclusion of art "" in the Directive Principles of 9tates Polic*#

&hich reads/ >The state shall endeavor to secure for the citiHens a unifor6civil code throughout the territor* of India.> -o&ever# this constitutionalgoal still re6ains a pious &ish even after @@ *ears of the enact6ent of )onstitution of India.

The La& )o66ission of India is entrusted &ith the task of 6aking proposals for refor6# and codification of Indian la&. There has been hecticlegislative activit* in India after independence# both at the )entral and statelevel. ith thousands of )entral and state la&s in force# legislation has practicall* superseded the other sources of la&.

"@



Lecture

Sources o& La! ((- %recedent

eanin$ o& %recedent

Precedent 6eans 8udg6ent or decision of a court of la& cited as an authorit* for the legal principle e6bodied in it. The doctrine of precedent# &hich is also kno&n as the doctrineof stare decisis# ie# stand b* the decision# is based on the principle that like cases should be decided alike. Cnce a case is decided b* a 8udge b* appl*ing a principle# a case onsi6ilar facts &hich 6a* arise in future 6ust also be decided b* appl*ing the sa6e principle. This not onl* saves the ti6e and labour of 8udges# but also secures certaint*#

predictabilit*# and unifor6it* in the application of la&.The English legal s*ste6 has al&a*s attached great i6portance to 8udicial precedent.

The vast bod* of )o66on La& is al6ost entirel* the product of decided cases.)ontinental s*ste6# on the other hand# considers precedent onl* as evidence of la&# andnot a source of la&. Precedents are instru6ents for the persuasion of 8udges. English la&considers precedents not 6erel* as evidence of the la&# but as source of la&# and acceptsthe authorit* of precedents. It is an assu6ption of English la& that ever* decision shall beaccepted as precedent and follo&ed not onl* b* all subordinate courts# but also b* courtsof co'ordinate 8urisdictions. This approach has influenced all legal s*ste6s# includingIndia# &hich follo& the )o66on La& tradition. It 6ust be added that even in continentallegal s*ste6s such as rance# Ital* and +er6an*# the i6portance of the reported

decisions has been increasing# and the courts of these countries no& tend to attach greater &eight to their o&n previous decisions. -o&ever# the respect sho&n to 8udicial precedents depends on their e3cellence or 6erit.



3


)"e Doctrine o& Stare 4ecisis

-istoricall*# the doctrine of precedent began b* asserting the doctri stare

decisis. This 6eans >to stand b* precedent and not to distur settled point of la&>. In other &ords# 8udicial decisions have a bi/ force# and en8o* status of la& per se. The doctrine of stare decisis post t&o conditions to be satisfied#viH# (i there 6ust be a settled 8u hierarch*# for other&ise it &ill not bekno&n &hose decisions are bii on &ho6G (ii there 6ust also be reliablereports of cases. If cases are authoritative as la&# there should be preciserecords of &hat the* la* c

The si6ple reason behind the doctrine of stare decisis &as that oneco66unit* accepts a precedent as authoritative la& and rests its e3pecta on

it# overturning it &ould cause grave inconveniences to the co66i and 6ightdisappoint and disturb their legiti6ate e3pectations in va affairs. Therefore#it is considered better in the interest of certaint* consistenc* to stand b* thedecision.

This vie& is further strengthened b* the 6a3i6 communis error fact ie#co66on 6istakes 6ake la&. udicial declaration of la& b* a co6pS court isal&a*s respected b* the societ* as being authentic# authorit and valid# even ifthe decision of the court is founded on fault* and erron pre6ises. Asubseuent annul6ent of the decision &ill certainl* dis and disappoint thelegiti6ate e3pectations of the people# b* unsettling settled issues# resulting ina chaotic condition in the societ*. 9o# considered &ise# in the interest ofcertaint*# consistenc* and stabilit stand b* the earlier decision. As $lackstoneobserves# >It is an establi/ rule to abide b* for6er precedents# &here the sa6e point co6es'agai litigation as &ell as to keep the scale of 8ustice even andstead* and liable to &aiver &ith ever* ne& 8udge>s opinion.> Therefore# it isconsid proper to stand b* the earlier decisions in the interest of stabilit* oflegal s*ste6.

ulius 9tone# has identified the rationale of the doctrine as >resting6a3i6ising fairness and efficienc* in ad8udication or as fulfilling e3pectati of litigants or as a basis of confidence in the 8udiciar*>. -e sa*s that essence of stare decisis is that &here there is no sufficient reason for depari fro6 principle laid do&n in a prior decision# 8udges should not de8 fro6 the6. Inother &ords# there should be sufficient teasons for depart fro6 prior decisions.

Professor A Laksh6inath#, discusses the sociolog* of stare decisis, sa*that &hile identif*ing stare decisis as a 8udicial attitude# a 8udge is reui

/ Precedent and Law: 4%na'ics of Co''on Law 5rowth# /981.

7 Precedent in The Indian Le)al S%ste'# second edn= 7551.



":



(


)"e Doctrine o& Stare 4ecisis

-istor>ican*# the doctrine of precedent began b* asserting the doctrine o& ......... PHHC.

tuc mpins >to stand b* precedent and not to disturb the U

settled point of law0* In other &ords# 8udicial decisions> nave a> t6dinr $= force# anden8o* status of la& per se. The doctrine of stare decisis postulates t&o conditions to besatisfied# viH# (i there 6ust be a settled 8udicial hierarch*# for other&ise it &ill not bekno&n &hose decisions are binding on &ho6G (ii there 6ust also be reliable reports of cases. If cases are to be authoritative as la&# there should be precise records of &hatthe* la* do&n.

The si6ple reason behind the doctrine of stare decisis &as that once the co66unit*accepts a precedent as authoritative la& and rests its e3pectations on it# overturning it

&ould cause grave inconveniences to the co66unit*# and 6ight disappoint and disturbtheir legiti6ate e3pectations in various affairs. Therefore# it is considered better in theinterest of certaint* and U consistenc* to stand b* the decision.

This vie& is further strengthened b* the 6a3i6 co''unis error facit &us# ie#co66on 6istakes 6ake la&. udicial declaration of la& b* a co6petent court isal&a*s respected b* the societ* as being authentic# authoritative and valid# even if thedecision of the court is founded on fault* and erroneous pre6ises. A subseuentannul6ent of the decision &ill certainl* disturb and disappoint the legiti6atee3pectations of the people# b* unsettling the settled issues# resulting in a chaoticcondition in the societ*. 9o# it is considered &ise# in the interest of certaint*#consistenc* and stabilit* to stand b* the earlier decision. As $lackstone observes# >It is

an established rule to abide b* for6er precedents# &here the sa6e point co6esagain9n litigation as &ell as to keep the scale of 8ustice even and stead* and not liableto &aiver &ith ever* ne& 8udge>s opinion.> Therefore# it is considered proper to stand b* the earlier decisions in the interest of stabilit* of the legal s*ste6.

ulius 9tone#! has identified the rationale of the doctrine as >resting on 6a3i6isingfairness and efficienc* in ad8udication or as fulfilling e3pectations of litigants or as a basis of confidence in the 8udiciar*>. -e sa*s that the essence of stare decisis is that&here there is no sufficient reason for departing fro6 principle laid do&n in a prior decision# 8udges should not depart fro6 the6. In other &ords# there should besufficient reasons for departing fro6 prior decisions.

Professor A Laksh6inath#, discusses the sociolog* of stare decisis# sa*ing that

&hile identif*ing stare decisis as a 8udicial attitude# a 8udge is reuired

/ Precedent and Law: 4%na'ics of Co''on Law 5rowth# /981.

7 Precedent in The Indian Le)al S%ste'# second edn= 7551.

8





Sources of Law II: Precedent

to consult accu6ulated &isdo6. Stare decisis is both a social and legal nor6. It is anun&ritten social rule &hich contains clusters of rules and values on shared understandinga6ong groups. It also e6bodies a co6ple3it* of un&ritten or half'&ritten legal rules of

practice having distinct conseuences. -e holds that the social 8ustification of staredecisis is in its pro6ise of certaint* and stabilit*. $esides# the doctrine fosters fairness inad8udication# pro6otes efficienc*# disciplines the court# e3cludes arbitrariness# andlegiti6ises 8udicial po&er. The doctrine helps to generate 8udicial accountabilit*.

In Professor -art>s anal*sis# the stare decisis doctrine represents the secondar* rule or po&er conferring rule or a rule of recognition.

9ir illia6 -olds&orth>s general thesis &as that the English doctrine of precedent >hitsthe golden 6ean bet&een too 6uch fle3ibilit* and too 6uch rigidit*G for it gives to thelegal s*ste6 the rigidit* &hich it 6ust have if it is to possess a definite bod* of principles# and the fle3ibilit* &hich it 6ust have if it is to adapt itself to the needs of achanging societ*>.

+0assi&ication o& %recedents ri$ina0 and

Dec0aratory %recedents

The 8udicial decisions are of t&o t*pes# na6el* those &hich create a ne& la&# and those&hich appl* kno&n and settled principles of la& to the particular facts of a case. $oththese t*pes of decisions are treated as precedents. It is because the legal principlese6bodied therein are authoritative guides to courts for the deter6ination of futurecontroversies. Decisions &hich create a ne& la& are called original precedents# &hile

those &hich appl* kno&n and settled principles of la& to the particular facts of a case arecalled declarator* precedents. A declarator* precedent is not a source of ne& la&#&hereas an original precedent is.

There are several declarator* precedents# for the la& on 6ost of the points is alread*settled# and 8udicial decisions are 6ere declarations of pre'e3isting rules. Cn the other hand# original precedents# though fe&er in nu6ber# are greater in i6portance# as the*alone develop the la&.

This distinction bet&een original and declarator* precedents is based on t&odia6etricall* opposite theories of precedent. Cne theor* supported b* 8urists like Austinand ried6ann concede the la&'6aking role of the 8udge. In their vie&# so6e precedents6a* be original because the* la* do&n original or ne& principles of la&. urists like

$lackstone do not agree &ith this# and consider precedents as declarator* onl*# ie# the*6erel* reiterate recognised principles of la&. The )o66on La& contains a rule for

"1



66 Lectures in Jurisprudence 1

ever* situation# and the 8udge>s function is onl* to discover and appl* it top the case athand. This is kno&n as the declarator* theor* of precedent )ritics of the theor* dis6issthis as a childish fiction. English 8udges 0iktt ansfield# right# Atkin# and Denning also

did not subscribe to the declarator* theor*. These 8udges believed that 8udges have todevelop lavJ in tune &ith the changing needs of the societ*# and the progressive de6andsof 8ustice# &henever occasion de6ands so.

In countries like India# &here 8udges have to interpret the )onstitution and deter6inethe validit* of legislative enact6ents and even constitutional a6end6ents# it is onl*natural that 8udges get 6ore opportunities to perfor6 a creative role. The declarator*theor* of precedent is inadeuate to provide a 8urisprudential basis to such a 8udicialrole.

,ut"oritati:e and %ersuasi:e %recedents

)lassification of precedents into authoritative and persuasive is a &idel* acceptedclassification. An authoritative precedent is one &hich the 8udge is bound to follo&irrespective of &hether he approves it. In other &ords# the 8udge has no choice. or instance# a decision of the 9upre6e )ourt of India is binding on a 8udge of the 7erala-igh )ourt. 9i6ilarl*# a decision of the 7erala -igh )ourt is binding on lo&er courts in7erala. In a s*ste6 of precedents# decisions of superior courts are al&a*s considered asauthoritative precedents.

Authoritative precedents are further classified into absolute and conditional. Anabsolutel* authoritative precedent is absolutel* binding# and 6ust be follo&ed &ithoutan* uestion# ho&ever# unreasonable or erroneous it 6a* appear to be. It has a legalclai6 to i6plicit and unuestioned acceptance b* the court. )onditionall* authoritative precedent is one &hich is nor6all* binding on the 8udge# but 6a*<be disregarded b* hi6in li6ited circu6stances.

A persuasive precedent is one &hich the 8udge is under no obligation to follo&. -ere#he has a choice in deciding &hether to follo& a precedent. If he is convinced of the 6eritsof a decision# he 6a* follo& itG other&ise he 6a* refuse. A decision of the Delhi -igh)ourt is onl* a persuasive precedent as far as the adras -igh )ourt is concerned# and itis under no obligation to follo& it. oreign 8udg6ents 6a* also be considered as persuasive. Persuasive precedents# though not binding# often e3ert a decisive influence on 8udicial decisions. The distinction bet&een a persuasive precedent and a conditionall*authoritative precedent lies in the fact that the for6er reuires reason to support it# &hilethe latter reuires a reason to re8ect it. Authoritative precedents are considered to be legalsources of la&# &hile persuasive precedents are onl* historical sources.

@%




Ratio Decidendi and ;iter Dicta

Cur discussion of precedent has so far carefull* avoided the use of t&o i6portant &ords#

na6el*# ratio decidendi# and obiter dicta. hen &e sa* that a 8udicial decision is bindingas a precedent# &hat &e reall* 6ean is that a rule or principle for6ulated and applied inthat decision 6ust be applied &hen si6ilar facts arise in future. This rule or principle isthe ratio decidendi# &hich is at the centre of the doctrine of precedent. The e3pressionratio decidendi has different 6eanings. The first 6eaning# &hich is the literal translationof the e3pression# is >the reason for deciding>. A 6ore satisfactor* &a* of e3plaining ratiodecidendi is as >the rule of la& proffered b* the 8udge as the basis of his decision>. 9o6e people are in favour of shifting the e6phasis and regard ratio decidendi as the rule of la&#&hich others regard as being of binding authorit*. This gives 6ore i6portance tosubseuent interpretations of the principle than the pronounce6ent of the 8udge &hodecides the case. Interpretation is treated as a continuous and creative process in &hich

the 8udge has the freedo6 and fle3ibilit* in interpreting a precedent# e3panding# or li6iting its application.Ratio decidendi 6a* best be described as the underl*ing principle of a decision# &hich

for6s its authoritative ele6ent. E3plaining &hat is ratio decidendi is easier co6pared toe3plaining ho& to find out ratio decidendi. 9ince different 8udges follo& different st*lesof &riting 8udg6ents and there 6a* be several 8udg6ents in the sa6e case# the task of e3tracting the ratio of a decision beco6es ver* co6plicated indeed. Cne 6ethodsuggested b* +oodhart involves the identification of 6aterial facts of a case. Cne has tolook at the decision on 6aterial facts in order to reach the ratio of the decision. Thedifficult* &ith this 6ethod is that there is no ascertainable *ardstick to find out the6aterial facts. hat appears to be 6aterial fact to one person 6a* appear to bei66aterial to another. Another 6ethod# &hich is kno&n as >a6baugh>s test># is based ona negative test. irst of all one has to for6ulate a proposition# &hich he considers as theratio. Then a &ord is added# &hich &ill have the effect of inversing the 6eaning of the proposition. If it is possible to reach the sa6e conclusion &ith the second propositionalso# the original proposition cannot be treated as the ratio. This 6ethod considers ratio asthe principle or principles &ithout &hich the court could not have reached the decisionthat it reached. The success of this 6ethod depends chiefl* on the for6ulation of the first proposition for &hich one has to rel* on his o&n intelligence and intuition.

The position that finall* e6erges is that there is no foolproof 6ethod of finding out theratio decidendi of a case. It is al&a*s a 6atter of 8udicial creativit* and discretion. It isthe 8udicial choice involved in the application

@!



Lectures in Jurisprudence 7

of precedent that 6akes the doctrine of precedent fle3ible# and respons68 to changes.Pronounce6ents of la& in the 8udg6ent# &hich are not part of the ratio decidendi# are

kno&n as obiter dicta. In other &ords# it is a chance re6ark &hich has no binding force.

Although obiter dicta is not considerei authoritative and lacks status of la&# it cannot bedis6issed as insignificant er* often it influences 8udicial thinking and 6a*# in courseof ti6e# becorat the ratio. The i6pact of obiter dicta depends on the reputation of the 8udge# the position of the court in the hierarch*# and the circu6stances in &hich it ca6eto be pronounced. E3a6ples of obiter dicta are rules of Ian stated 6erel* b* &a* of analog* or illustration# a suggested rule upon &hich the decision is not finall* based# aruling based on h*pothetical facts# a 8udicial declaration of a rule unacco6panied b* itsapplication etc. The observations of the highest court# though obiter dicta# have high persuasive effect on lo&er courts. Cbiter dicta 6a* help to rationalise the la&# and alsoserve to suggest solutions to proble6s not *et decided b* the courts.

)"eories o& %recedent

hen &e 6ention case'la& or precedent as 8udge'6ade la&# the uestion arises &hether the 8udges have an* po&er or authorit* to 6ake or change the la&. There are t&oconflicting vie&s on this uestion. The first is that the 8udges onl* declare the e3istingla& and never 6ake the la&G but the second asserts that the 8udges do 6ake or createne& la&. Let us e3a6ine these conflicting theories in so6e detail.

Dec0aratory )"eory

This theor* &as propounded b* 9ir athe& -ale as earl* as in !2!; &hen8 he said/

.. .the decisions of courts of 8ustice... do not 6ake a la& properl* so called# for

that onl* the 7ing and Parlia6ent can doG *et the* have a great &eight and

authorit* in e3pounding# declaring and publishing &hat the la& of this 7ingdo6

is.;

-o&ever# it &as $lackstone &ho for6all* enunciated this theor*. According to hi6/

A 8udge is s&orn to deter6ine# not according to his o&n 8udg6ent# but according

to the kno&n la&s and custo6s of the land# not delegated to pronounce a ne& la&#

but to 6aintain and e3plain the old one &us decree et non&us dare*8

4 -istor% of the Co''on Law# /875= p 89.

Co''entaries I# p 88.

@,





ources of Law - Precedent

si:e

itio irk# red 6t. S6e the s in la& pon Gical etc. lighthe

ange that c theThis 6eans that the 8udges can onl* declare the la&# and never 6ake or give ne& la&.

The staunchest supporters of this $lackstonian doctrine &ere the 8udges the6selves. or

e3a6ple# Lord Esher R said/@

...there is in fact no such thing as 8udge'6ade la&# for the 8udges do not 6ake thela&# though the* freuentl* have to appl* e3isting la& to circu6stances as to&hich it has not previousl* been authoritativel* laid do&n such la& is applicable.

This $lackstonian doctrine unco6pro6isingl* asserts that the function of the 8udge is 'usdecree et non 'us dare, ie# to discover in the e3isting rules of la& the particular principlesthat govern the facts of individual cases. udges are# therefore# onl* >la&'finders> rather than la&'6akers.

%riticism of the 1heory

This classical theor* of $lackstone has been sub8ected to severe criticis6 b* e6inent 8urists. The great la&'refor6er ere6* $entha6 said that the state6ent that 8udges onl*declare the la& is >a &illful falsehood having for its ob8ect the stealing of legislative po&er b* and for hands &hich could not or durst not openl* clai6 it>. -is disciple ohnAustin also has assailed it as a childish fiction e6plo*ed b* our 8udges that 8udiciar* or co66on la& is not 6ade b* the6# but is a 6iraculous so6ething 6ade b* no bod*#e3isting# I suppose# fro6 eternit* and 6erel* declared fro6 ti6e to ti6e b* the 8udges>.9everal other e6inent 8urists like unro 96ith and -ol6es also consider that thisorthodo3 theor* cannot be taken seriousl*.

udges as La&6akers Theor*

The second theor* of precedent is that 8udges 6ake la&. La& 6ade b* a 8udge is as realand effective as an* statute. A nu6ber of 8urists have supported this vie&. Pro6inenta6ong the6 is Prof Dice* &ho sa*s/

As all la&*ers are a&are# a large part and# as 6an* &ould add# the best part of the

la& of England is 8udge'6ade la&' that is to sa*# consists of rules to be collected



fro6 the 8udg6ents of the courts. This portion of the la& has not been created b*

Acts of Parlia6ent and is not recorded in the 9tatute $ook. It is the &ork of thecourts# it is recorded in the reports# and it is# in short# the fruit of 8udicial

legislation.5

An A6erican 8urist# Prof +ra* has# ho&ever# taken an e3tre6e vie& contending that 8udges alone are 6akers of la&. -e sa*s# >hoever hath an absolute authorit* to interpretan* &ritten or spoken la&# it is he &ho is

1 +illis v 9addele% A/897B 7 47.

6 Law and Public (pinion in En)land 4urin) The ineteenthCentur%# /9/= p 46/.

@;



trul* the la&'giver to all intents and purposes and not the person &ho first &rote or spoke the6># and he concludes# >v" fortiori &hoever hath an absolute authorit* not onl*to interpret the la& but to sa* &hat the la& is# is trul* the la&giver.>

Limitations of the 1heory

Although this theor* proclai6s that the 8udges 6ake la&# it is to be ad6itted that the* donot en8o* an unrestricted po&er of la*ing do&n abstract principles of la&. There arecertain &ell'defined li6itations on the po&er of 8udicial legislation. or instance/

(i The 8udge has no po&er to ignore or override the provisions of a statute. -e isdut* bound to enforce the statutor* provisions# leaving to the legislature to deal&ith an* unpleasant conseuence not foreseen at the ti6e of passing of the Act.

(ii An authoritative precedent li6its the la&'6aking po&er of the 8udge.

(iii The 8udicial legislation is restricted to the facts of the case placed before the

8udge# &hich is the outco6e of an accidental course of litigation. (iv Cnl* the ratio decidendi# and not the obiter dicta# has a binding force andauthorit* of la&.

It is# thus# clear that &ithin certain li6its 8udges have the po&er of profoundl*influencing the develop6ent of la&. Even if the* do not >6ake> the la& in the usual senseof pro6ulgating at &ill the rules of hu6an conduct# it 6ust be ackno&ledged that the*develop the la& b* contributing several original precedents.

2ierarc"y o& +ourts

or the operation of the doctrine of precedent# a settled hierarch* of courts is i6perative# because the basic rule of precedent is that a court is bound b* the decisions of all superior courts. In England# the -ouse of Lords occupies the highest position in the hierarch*. The)ourt of Appeal (civil and cri6inal divisions co6es ne3t. The high court# court of sessions# 6agistrate courts are the other courts in the order of hierarch*. According to thedoctrine of precedent in England# the high court is bound b* the decisions of the )ourt of Appeal# and the )ourt of Appeal is bound b* the decisions of the -ouse of Lords. )ourtsare bound onl* b* decisions of higher courts# and not bound b* those of lo&er or eualrank. -igh court is not strictl* bound b* its o&n previous decisions# but it &ill nor6all*

@"






follo& previous decisions# on the principle of 8udicial co6it*# in order to avoid conflictsof authorit*# and to secure certaint* and unifor6it* in the ad6inistration of 8ustice. The)ourt of Appeal# and possibl* divisional courts# still consider the6selves bound b* their

o&n decisions. This rule is# ho&ever# sub8ect to the follo&ing e3ceptions/

(i If t&o earlier decisions are in conflict# the )ourt of Appeal 6a* choose bet&eenthe6.

(iiIf a decision although not overruled is inconsistent &ith a decision of the -ouse of Lords or &ith a decision of the udicial )o66ittee of the Priv* )ouncil# the )ourtof Appeal is not bound b* it.

(iii If a decision &as given per incuriam, ie# in ignorance of a statute# or other bindingauthorit*# the )ourt of Appeal is not bound b* it.

The uestion &hether the -ouse of Lords is bound b* its o&n previous decision &as

ans&ered in the affir6ative b* Lord -alsbur* in London 1ramways v London %ounty%ouncil.; 1his &as considered necessar* in order to produce finalit* and certaint* in thela&. This practice continued until !155# &hen a change of practice &as announced b* aPractice 9tate6ent. The -ouse of Lords accepted >the use of precedent as anindispensable foundation upon &hich to decide &hat is the la& and its application toindividual cases>. It &as pointed out that precedent >provides at least so6e degree of certaint* upon &hich individuals can rel* in the conduct of their affairs# as &ell as a basisfor orderl* develop6ent of legal rules>. -o&ever# the -ouse of Lords recogniHed that >toorigid adherence to precedent 6a* lead to in8ustice in a particular case and also undul*restrict the proper develop6ent of the la&.> It &as# therefore# proposed to 6odif* thee3isting practice and >&hile treating for6er decisions of this -ouse as nor6all* binding#

to depart fro6 a previous decision &hen it appears right to do so>. It is significant to notethat the Practice 9tate6ent does not use the &ord >overrule># but continuousl* uses thee3pression >depart fro6 a previous decision>.

In India# as &e kno&# the 9upre6e )ourt is the highest court of la& in civil# cri6inal#and constitutional 6atters. There are high courts at the state level# and civil and cri6inalcourts belo& the high court. Article !"! of the )onstitution states that the la& declared b*the 9upre6e )ourt of India shall be binding on all courts in India. The uestion &hether the 9upre6e )ourt is bound b* its o&n decisions under art !"! &as raised in en#al mmunity )o Ltd v tate of ihar. In that case it &as held that

3 P/898Q ,+ 431.

8 ,(R>/911 S+66/.

@@




although the &ords# >all courts in India appear to be &ide enough to includethe 9upre6e )ourt also# the* do not include the 9upre6e )ourt. Asa result#the 9upre6e )ourt is not bound and is free to reconsider its previous

decisions in appropriate cases. This position &as reiterated in Sa&&an Sinv State of ,a&asthan; &herein it &as held that the )onstitution does not place an* restrictions on the po&ers of the 9upre6e )ourt to revie& itsearlier decisions or even to depart fro6 the6. The court 6ade it clear thatthe doctrine of stare decisis should not be per6itted to perpetuateerroneous decisions to the detri6ent of the general &elfare. The courtrecognised the need for e3ercising restraint in overruling previousdecisions# stating that the po&er 6ust be e3ercised onl* &henconsiderations of a substantial and co6pelling character 6ake it necessar*to do so.

9u66arising the position# the 9upre6e )ourt observed in a recenti

case/!% I

... stare decisis is not a dog6atic rule# allergic to logic and reasonsG/

it is a fle3ible principle of la& operating in the province of precedents(

providing roo6 to collaborate &ith the de6ands of changing ti6es/

dictated b* social needs# state polic* and 8udicial conscience. (

here there is a conflict bet&een the t&o decisions of the 9upre6e )ourt# &

the decision of the larger $ench prevails over that of the s6aller $ench This principle is true in the case of high courts also.

Exceptions to t"e Doctrine o& Stare 4ecisis

If there is an e3cessivel* rigid application of the doctrine of precedent# the>courts 6a* not be able to adapt the la& to changing situations. Cn the other hand# e3cessive rela3ation of the doctrine &ill result in confusion anduncertaint*. It is# therefore# necessar* to retain the doctrine of precedent#and at the sa6e ti6e# to per6it a rela3ation of the doctrine in appropriate

cases. A rigid application of precedent is rela3ed b* e6po&ering thesuperior courts to overrule their decisions# and also b* recognising certaine3ceptions to the doctrine of stare decisis*

The &ell recognised e3ceptions to the doctrine of stare decisis are/

(i if a decision conflicts &ith a previous decision of the sa6e courtG (ii if a decision has been i6pliedl* overruled b* a subseuent decision

of a higher courtG



9 ,(R /961 S+ 81.

/5 State of 5u&arat v $ir<apur $oti =ureshi =sasab Ja'at P7551Q 8 SEE 14= p

189.

@5

i



ources of Law - Precedent

(iii if a decision &as reached per incuriam, ie# is adecision &hich is given in ignorance of theter6s of a statute or a rule having the force of a

statuteG (iv if a decision has beco6e obsolete# ie# it is nolonger functional or has beco6e out of dateG and

(v a decision is su/ silentio, ie# a decision arrivedat &ithout application of 6ind or precedent and&ithout an* reason.

Judicia0 )ec"niFues o& Usin$ a %recedent

An anal*sis of the 8udicial process reveals several 8udicial techniues of using precedents.The 6ost i6portant a6ong such techniues are/ (i refusal to follo& a precedentG (iidistinguishing a precedentG (iii reversing a precedentG and (iv overruling a precedent.

1

Refusal to ollo& a Precedent

A 8udge can refuse to follo& a precedent onl* &hen itis not binding. In the case of a persuasive precedent#the 8udge has the freedo6 to decide &hether to follo&the sa6e. Even in cases &here there is a refusal tofollo&# the 8udge often considers the precedentscarefull*# and after a process of reasoning co6es to the

conclusion that it need not be follo&ed.

Distinguishing a Precedent



Ever* decision is pronounced on a specific set of past facts. hen si6ilarit# the situations arise in future# a 8udge has to decide &hether the rule for6ulatedn the in the previous decision should be applied in the present case. In other Sn and &ords# appl*ing precedent is a process of 6atching the facts of the precedent

edent# and the ruling thereon &ith the facts of the instant case. If the* 6atch# the 8priate rule is applied. If not# it is distinguished. The decision &hether the factsiperior 6atch is to be taken b* that 8udge. 9ince the decision &hether to appl* the prions precedent depends on it# the techniue of distinguishing a case affords

great fle3ibilit* in the application of precedents.

/

courtG 3ision



Reversing a Precedent

Reversal of a decision takes place on appeal. The effect of reversal is nor6all* that thefirst 8udg6ent ceases to have an* effect at all. It a6ounts to a nullification of the decisionas &ell as the principle &hich for6ed the basis of the decision.

@2

(




,11:erru0in$ a %recedent

Cverruling involves disapproval of the principle laid do&n in a decision off the sa6e or alo&er court. It never affects the decision in the earlier easel and the parties in theoverruled case continue to be bound b* the decision_ under the doctrine of res 8udicata.Reversal takes place in an appeal fro6 a decision# &hereas overruling takes place inso6e other case of si6ilar nature.< Cverruling 6a* be e3press or i6plied. In e3pressoverruling# it is clearl*J stated that a particular decision is overruled. It is i6plied &hen alater decision of a superior court is inconsistent &ith that of the inferior court. The effectof overruling is retroactive# e3cept that it does not unsettle 6atters# &hich are res 8udicataas bet&een the parties in the overruled decisions# and accounts &hich have been settled.This is consistent &ith the theor* that 8udges do not 6ake la&# but onl* declare &hatal&a*s has been the. la&. It considers an overruled decision as an erroneous declarationof the la& and hence# not la&. -o&ever# this rule of retroacrivit* 6a* create practicaldifficulties. It is &ith a vie& to avoid such practical difficulties that the doctrine of prospective overruling has been enunciated.

%rospecti:e :erru0in$

The doctrine of prospective overruling &as laid do&n b* )ardoHo in <reat orthern

:ailway v un/urst =il :efinin# %o.!> It 6eans overruling of an established precedent&ith effect li6ited to future cases# leaving events# &hich arose before the date of suchoverruling to be governed b* the old precedent itself. The 8ustification for this doctrine

has been furtha clarified u Linfefetter v alker u &S' =`'==.==` >




the 9upre6e )ourt had held that in e3ercise of the po&er to a6end the )onstitutionunder art ;5:# the Parlia6ent &as co6petent to enact a6end6ents abridging theunda6ental Rights in Pt III of the )onstitution. Cverruling these decisions# the court

held that art ;5: did not e6po&er the Parlia6ent to abridge unda6ental Rights. If this principle &as applied retrospectivel* then so6e a6end6ents to the )onstitution &hich&ere held valid in Shan"ari Prasad and Sa&&an Sin)h# &ould have beco6e invalid. Thecourt &anted to avoid the insur6ountable practical proble6s of such retrospectiveinvalidation of constitutional a6end6ents. It# therefore# borro&ed the doctrine of prospective overruling enunciated b* the 9upre6e )ourt of Q9A to hold that all thea6end6ents &hich have alread* been 6ade# &ill continue to re6ain valid. The li6itationon a6ending po&er laid do&n in 5ola" ath is applicable onl* to future a6end6ents.

The doctrine of prospective overruling &hich &as applied to constitutional a6end6entsin 5ola" ath &as later e3tended to la&s found unconstitutional# and also to theinterpretation of ordinar* statutes. E3plaining the scope of the doctrine# the 9upre6e

)ourt in =ailash Chand Shar'a v State of ,a&asthan2> observed/

...&hen the court finds or la*s do&n the correct la& in the process of &hich the prevalent understanding of la& undergoes a change# the )ourt# on considerationsof 8ustice and fair deal# restricts the operation of the ne& found la& to the future sothat its i6pact does not fall on the past transactions. The doctrine recognises thediscretion of the court to prescribe the li6its of retroactivit* of the la& declared b*it. It is a great har6onising principle euipping the )ourt &ith the po&er to 6ouldthe relief to 6eet the ends of 8ustice.

It &as e3plained in $ana)in) 4irector v 9 =aruna"ar ? that the doctrine is applied in

order to prevent unsettle6ent of the settled position# to prevent ad6inistrative chaos# andto 6eet the ends cf 8ustice.

The doctrine of prospective overruling is a 8udicial assertion of the la& 6aking role of the 8udge. This co6es into direct conflict &ith the $lackstonian doctrine that 8udgescannot 6ake la&. In the conte3t of 8udicial activis6 and 8udicial legislation e6erging asrealities# it is no 6ore relevant to turn back to the controvers* &hether 8udges can 6akela&. It has to be accepted that overruling obviousl* changes the la&# and thereb* upsets

/6 ,(R 7557 S+ 7839.

/3 P/994Q SEE 373.

@1




e3pectations based thereon. The decision as to &hether such change should be prospective or retrospective in effect assu6es great significance. The guiding factors inarriving at a proper decision on this uestion 6ust be the considerations of stabilit*#

protection of reliance on la&# efficienc* in ad6inistration of 8ustice# eualit*# and theideal 8ustice.

La! Reports

Earlier# &e have seen that for a s*ste6 of precedent to be operational# a settled hierarch*of courts# and the availabilit* of la& reports are necessar*. In all legal s*ste6s &hichfollo& the doctrine of precedent# the 8udg6ents of superior courts are published in aregular and s*ste6atic 6anner. It has been rightl* observed that the histor* of staredecisis is the histor* of la& reporting. hile it is true that an efficient s*ste6 of reporting

8udg6ents is highl* essential for the survival of the doctrine of precedent# it is euall*true that reliance on precedents i6proves the ualit* of la& reporting. The usual 6ethodno& being follo&ed is to give a head'note# su66arising the facts and decision in the beginning# follo&ed b* the te3t of the 8udg6ent. In England# regular &eekl* report of cases began &ith the All England Reports in the *ear !1;5. There are also several seriesof reports covering the earlier period# but their authorit* varies. In India# there are officialas &ell as unofficial publications reporting the decisions of the high courts and the9upre6e )ourt. The 9upre6e )ourt Reports and the Indian La& Reports are the officialla& reports published under the authorit* of the 9upre6e )ourt and the high courtsrespectivel*. Private publications reporting 8udicial decisions include the 9upre6e )ourt)ases# All India Reporter# La& Reports of India# udg6ents Toda*# Delhi La& Ti6es#)alcutta La& Ti6es# adras La& ournal# 7erala La& Ti6es etc. There are also publications reporting cases on particular branches of la&# such as the )ri6inal La&ournal# Inco6e Ta3 Reports# Labour La& ournal# )onsu6er Protection udg6ents#)o6pan* )ases etc. Thus# &e find that there is a highl* co6petitive and reliable s*ste6of la& reporting in India &hich 6akes precedents easil* accessible.

,d:anta$es and Disad:anta$es o& %recedents

In an* 6odern legal s*ste6# legislation and precedent assu6e al6ost eual i6portance.9o6e people consider precedent to be a better source of la& than legislation# &hile othersdo not consider precedent as la& at all. The truth is that both legislation and precedent pla* their o&n roles in the develop6ent of la&. The 6ost obvious advantage of precedentis that it can

5%




a&a*s respond to the practical needs of the societ*. This i6parts fle3ibilit* to the rigidrules in the statute. A 8udge deals &ith a concrete proble6# &hereas the legislatures la*sdo&n a rule in an abstract and general for6 in anticipation of proble6s. The 8udge is able

to get a >feel> of the actual proble6 before he thinks of a re6ed*.The supporters of precedent argue that case la& is easier to understand than statute la&.Principles and rules are stated &ith reference to a particular factual conte3t# and thereasoning &hich leads to the conclusion is also elaboratel* stated. Adherence to the letter or to the for6ula of &ords# &hich is called the vice of for6alis6# is absent in case la&.The various rules of interpretation per6it a 8udge to go be*ond the te3t of the statute# andfacilitate an interpretation &hich &ill pro6ote the ob8ectives of the statute. Another advantage of precedent is that it is a product of the best legal brains. udges of superior courts# &hether appointed directl* fro6 the $ar or pro6oted fro6 the lo&er ranks of the 8udiciar*# possess considerable e3perience and e3pertise. Legislative drafts6en andlegislators cannot clai6 to possess these ualities.

)ritics of precedent point out that case la& is not la& at all# because it is not i6perative.This vie& is not accepted b* positivists like Austin &ho hold that 8udges are the agents of the sovereign# and the la& 6ade b* the6 is also supported b* sanctions as in the case of an* other co66and of the sovereign. Another criticis6 levelled against precedent is thatthe co66unit* has no control over 8udicial la& 6aking. This is trueG but there is alsoso6e intrinsic 6erit in the fact that an independent and i6partial 8udiciar* can al&a*sre6ain detached and ob8ective &ithout being influenced b* the e6otional currents prevalent in the co66unit*. This enables the 8udiciar* to protect the rights of individualsas &ell as those of the 6inorities. It is also i6portant to re6e6ber that if a 8udicialdecision goes against the spirit of the co66unit*# it can al&a*s be overruled b*legislation.

Another criticis6 of precedent is that it is sub8ective in nature. A 8udge can decide casesaccording to his &hi6s and fancies. hile there is so6e truth in the state6ent that thereis a sub8ective ele6ent in ever* 8udicial decision# it 6a* not be correct to sa* that it istotall* sub8ective. There are 6an* factors# &hich 7arl Lle&ell*n describes as thestead*ing factors# &hich ensure fairness and ob8ectivit* in 8udicial decisions# and &hichdo not per6it a 8udicial decision to be arbitrar*. 9o6e critics of precedent allege that 8udicial decisions are 6ade in haste and under the pressure of co6pelling facts. -o&ever#it 6ust be noted that ever* 8udicial decision is taken after elaborate argu6ents on bothsides b* e3perts# and after careful deliberation of the relevant provisions of la& and precedents.

A co6parison bet&een precedent and legislation i66ediatel* reveals

5!




one 6a8or dra&back of precedent# na6el*# the bulk* and volu6inous nature of case la&.The habit of so6e 8udges to &rite ver* length* 8udg6ents using inco6prehensiblelanguage contributes to the difficulties involved in e3tracting the ratio of a decision. The

increasing trend of separate concurring 8udg6ents adds a ne& di6ension to the proble6.Another 6a8or defect of precedent is that it is al&a*s e3 post facto. A rule laid do&n ina 8udicial decision is applied to facts &hich had occurred earlier in point of ti6e# &henthe parties had no kno&ledge of this rule. The hardship caused to the parties is increased&hen a ne& rule is laid do&n overruling an earlier decision. In the case of legislation# this proble6 does not arise because legislation operates onl* prospectivel*.

It is also to be noted that precedents can never be a substitute for legislation# becausethe* can never be co6prehensive. A precedent is a response to a proble6 that reaches thecourt. hether a particular social proble6 actuall* reaches the court depends on severalfactors# including the a&areness and econo6ic capacit* of the aggrieved parties.

A final uestion that has to be considered in relation to precedent is &hether in a

s*ste6 of precedent it is possible to adapt la& to the changing conditions of social life.hile follo&ing precedents# &e look at the past for a solution to the present proble6. Thedevelop6ent of la& and its capacit* to 6eet ne& challenges necessaril* postulate afuturistic perspective. In a rigid s*ste6 of precedent# the 8udge is al&a*s tied do&n to the past. This is re6edied to a great e3tent b* per6itting the courts to overrule their o&ndecisions. )reative 8udges can also find out 6ethods of e3panding and e3tending earlier precedents# and also use the 8udicial techniue of distinguishing# &hich has been alread*e3plained. A good 8udge is a 6aster# and not a slave of precedents.

The doctrine of precedent serves a great purpose—that of ensuring certaint*#consistenc*# predictabilit*# and stabilit* of the legal s*ste6. 9tretched be*ond a point#these virtues &ill beco6e stu6bling blocks to the progress of the la&# since la& has torespond to social changes. The challenge of a 8udge &orking &ithin the s*ste6 of precedent is to reconcile stabilit* and change. The e3perience of )o66on La& over along period of histor*# as ulius 9tone concludes after an incisive stud*# bears a6pletesti6on* to the fact that )o66on La& 8udges have achieved significant success in6eeting this challenge.

5,



Lecture 1

Sources o& La! (((- +ustom

ri$in and (mportance o& +ustom

There are several theories concerning the origin of custo6# and its relationship &ith thela&. A discussion of those theories is not necessar* for our purpose. -o&ever# aconclusion &hich e6erges as a consensus of all the theories and is established b* actualstud* of pri6itive co66unities is that custo6 is anterior to 7ings and courts. The origin

of custo6 6a* be traced to the ver* inception of the co66unit* itself. A co66unit*involves three essential ele6ents/ (i the groupG (ii the e3istence of the divergent desires&ithin the groupG and (iii the clai6s 6ade b* so6e 6e6bers against others or againstthe group. )onflicting clai6s and desires &ithin the group naturall* generate proble6s. If the group is to re6ain a co66unit*# these proble6s 6ust be resolved# for &hich certainnor6s are reuired. Even in a pri6itive co66unit*# a distinction 6ust be 6ade bet&een&hat is actuall* done# and &hat ought to be done. It 6a* also beco6e necessar* toreconcile the nor6s of the fa6il*# or the tribe &ith those of the co66unit*. hen a proble6 arises# an ans&er 6ust be found. Tact and sense of the 6erits and appreciation of the strength of each part*# pla* a greater part than the desire to find a rule that is 8ust andlogicall* 8ustifiable. Cnce a rule is adopted# practice generates conviction. Practice gro&sinto convention. hat 6akes convention a custo6 is the recognition that there isauthorit* behind it. In other &ords# custo6 co6es into e3istence &hen the co66unit* inso6e &a* backs a particular rule. In the 6odern state# the legall* recognised custo6 issupported b* the courts# and an apparatus of coercion.

)usto6 is not necessaril* linked to an* sense of 8ustice. The e3istence of a custo6 6a* be 8ustified b* e3pedienc* or po&er relations in a co66unit*.




The obvious e3a6ple of a custo6# &hich has no ele6ent of 8ustice in it# is slaver*.The i6portance of custo6 di6inishes &ith the gro&th of a legal s*ste6# since custo6

is superseded b* legislation and precedent. Nevertheless# custo6 is useful to the fra6ers

of la& in t&o &a*s/ (i it provides thet 6aterial out of &hich the la& can be fashioned b*saving the intellectual effort needed to create a la&# de novo> and (ii ps*chologicall*# itis easier to secure obedience to a la& if it clai6s to be based on a custo6 i66e6oriall*observed. There is inevitabl* a tendenc* to adopt &hat has been follo&ed in the past assafe guide for the future.

The 6ain reasons for the reception of )usto6ar* La& into the la& of the 6odern stateare/

(i )usto6 is freuentl* the e6bodi6ent of those principles# &hich haveco66ended the6selves to the national conscience as principles of 8ustice and public utilit*# and are e6bodied in the 6a3i6 via trita via tuta, ie# freuented

path is reliable path. The la& e6bodies those principles that have beenackno&ledged and approved b* the state in the e3ercise of its sovereign po&er.)usto6 e6bodies those principles that have been ackno&ledged and approvednot b* the po&er of the state# but b* the public opinion of the societ* at large. Itis# therefore# said that custo6 is to the societ*# &hat la& is to the state.

(ii The e3istence of an established usage is the basis of a rational e3pectation of itscontinuance in the future. As far as possible the state tries to fulfill people>srational e3pectations rather than frustrate the6. Even in full* developed legals*ste6s# custo6s ate not totall* replaced b* positive la&. )usto6s &hich are notcontrai8 to the prevalent 6ores of the co66unit* are either recognised andincorporated into the la&# or are 6erel* tolerated. An earlK e3a6ple of custo6gaining statutor* recognition is the Native Rights Act !:5@ of Ne& ealand#&hich allo&ed the aboriginal aoris to continue to be governed b* their o&ntribal custo6s. In India# during the colonial period# there &as an atte6pt to codif*the civil la& and cri6inal la&# but the religious personal la&s &ete left untouched b* the $ritish. Even after independence# the -indu personal la& alone &asrefor6ed and codified# leaving the personal' la&s of other 6a8or religiousco66unities as the* &ere befottl independence. The tribals in India are also6ostl* governed b*l their custo6ar* la&s. It is# thus# clear that the influence ofcusto6 is still a factor to be reckoned &ith even in a 6odern legal s*ste6.!

5"



Sources of Law III: Custo'

Kinds o& +ustoms

)usto6 is usuall* divided into legal# and conventional. Legal custo6 is one &hose

authorit* is absolute# and &hich in itself and proprio vi)ore possesses the force of la&. Itis operative per se as a binding rule of la&# independent of an* agree6ent on the part of those sub8ect to it.

)onventional custo6# &hich is also called usage# operates onl* indirectl* through the6ediu6 of agree6ents# &here it is accepted and adopted in individual instances asconventional la& bet&een the parties. It is an established practice &hich is legall* binding not because of an* legal authorit* independentl* possessed b* it# but because ithas been e3pressl* or i6plicitl* incorporated in a contract bet&een the partiesconcerned. ost agree6ents consist of t&o parts—na6el*# e3pressed ter6s# and i6pliedter6s. It is for the la& to suppl* i6plied ter6s supple6enting the ter6s e3pressed b* the parties. )ourts dee6 conventions as i6plied ter6s of contract# &hen the follo&ing

conditions are satisfied/

(i The usage 6ust be so &ell established as to be notorious. No particular period of longevit*# ho&ever# is necessar* to satisf* the reuire6ent of notoriet*.

(ii The usage cannot alter the general la& of the land# &hether statutor* or )o66onLa&. Qsage derives its force fro6 its incorporation into an agree6ent and#therefore# can have no 6ore po&er to alter the la& than an e3press agree6ent.

(iii The usage should be a reasonable one. (iv It need not have an* particular scope. Qsages 6a* be# and usuall* are# li6ited to a

trade or localit*# but the* 6a* be co66on to the &hole countr* or even the &orld.(v The usage &ill not be enforced in a particular case if it purports to nullif* or var*

the e3press ter6s of a contract. Its sole function is to i6pl* a ter6 &hen thecontract is silent. The parties cannot be understood to have contracted in the lightof a usage# &hich the* have e3pressl* contradicted.

La& originating in usage nor6all* passes through three successive historical stages. irstis the e3istence of the usage# &hich is a uestion of fact. Then the courts take 8udicialnotice of it. inall*# it 6a* be e6bodied in a statute# and then it assu6es its ulti6ate for6as enacted la&.

Cnce a general usage has received 8udicial or statutor* recognition# it cannot be altered b* the gro&th of an* other later usage in conflict &ith it. As $uckland re6arks# &hat isla& is not usage# but the state6ent of the characteristics &hich it should possess.

5@




)usto6 has also been classified into local custo6# and general custo6 of the real6.A local custo6 prevails in so6e defined localit* onl*# and constitutes a source of la&for that place onl*. In order that a local custo6 6a* be valid and operate as a source of

la&# certain reuire6ents 6ust be satisfied.

ReFuisites o& a +ustom

In order to operate as a source of la&# a custo6 6ust have the follo&ing attributes/

Reasona;0eness

A custo6 6ust be reasonable. ?alus usus a/olendus est. The authorit* of 8 usage is notabsolute# but conditional upon its confor6it* &ith 8ustice and > public utilit*. It is not6eant that the courts are at libert* to disregard a U custo6 &henever the* are not satisfiedas to its absolute rectitude and &isdo6# or &henever the* think that a better rule could befor6ulated in the e3ercise of their o&n 8udg6ent. This &ould be to deprive custo6 of allauthorit*—either absolute or conditional. The true rule is# or should be# that a custo6# inorder to be deprived of legal efficac*# 6ust be so obviousl* and seriousl* repugnant toright and reason that to enforce it as la& &ould do 6ore 6ischief than that &hich &ouldresult fro6 overturning the e3pectations and arrange6ents based on its presu6edcontinuance and legal validit*. I

+on&ormity !it" Statute La! !

A custo6 6ust not be contrar* to an Act of Parlia6ent. In the &ords of )oke# >Nocusto6 or prescription can take a&a* the force of an Act of Parlia6ent.>

Cbservance as o& Ri$"t

(

The third reuisite of the operation of custo6 as a source of la& is that it 6ust have beenobserved as of right. -o&ever# this does not 6ean that a custo6 6ust be acuiesced in asa 6atter of 6oral right.

(mmemoria0 ,ntiFuity



The fourth and the last reuire6ent of a legal custo6 relates to the length of ti6e during&hich it has been established. A custo6# to have the forct

55



Sources of Law III: Custo'

of la&# 6ust be i66e6orial. A custo6 is said to be i66e6orial &hen its origin is soancient that the beginning of it is be*ond hu6an 6e6or*# and no testi6on* is availableas to a ti6e &hen it did not e3ist.

In addition to the aforesaid reuire6ents# continuit*# peaceableness# certaint*# andconsistenc* &ith other custo6s# are also considered as reuisites for a valid custo6.

@enera0 +ustom o& t"e Rea0m

A custo6 prevailing throughout England since !!:1 is considered as part of the)o66on La&. The e3pression >general custo6 of the real6#> is# therefore# s*non*6ous&ith )o66on La&. It is no longer a living and an operative source of English la&. Allthe general custo6s of the real6 have been transfor6ed into case la&# &hich has itsi66ediate source in precedent.

+ustom and %rescription

-istoricall*# the la& of prescription has been regarded as a branch of the la& of custo6.A prescription &as conceived as a custo6 li6ited to a particular person and his ancestorsor predecessors. It 6a*# therefore# be described as a personal custo6# and 6a* bedistinguished fro6 a local custo6 &hich &as li6ited to a place.

The difference bet&een a local custo6 and prescription &ill be clear fro6 the follo&inge3a6ple. If on the death of an o&ner intestate all lands belonging to hi6 have# fro6 ti6ei66e6orial# descended to his *oungest son# it is a custo6# and is the source of a rule of special and )usto6ar* La&. 9i6ilarl*# if the o&ner of a far6 and all his predecessors intitle fro6 ti6e i66e6orial have used a &a* over the ad8oining far6# it is a prescriptionand is the source of a prescriptive right of &a* vested in the o&ner. Therefore# &e can sa*that custo6 is a long practice operating as a source of la&G &hile prescription is a long practice operating as a source of rights.

$oth prescription and custo6 are essentiall* governed b* si6ilar rules of la&. Thereuisites of a valid prescription are in essence the sa6e as those of a valid custo6#na6el*# it 6ust be reasonable# i66e6orial# and consistent &ith statute la&. +raduall*#other for6s of prescription not kno&n to the earl* la& ca6e to be recognised. Thereuire6ent of i66e6orial antiuit* is not insisted on in the case of prescription. Incases of ease6ents# en8o*6ent for ,% *ears confers a prescriptive right. Thus# &hen a person has been en8o*ing a right for ,% *ears# he no& has an absolute title instead of a6ere evidence of user.

52





Lecture 6

,pproac"es to La! (- 2istorica0 ,pproac"

Cvervie&

Different people have different ideas about la&. Ever*one tries to e3plain the 6eaning#nature# and function of la& fro6 his o&n perspective. This is the reason behind thee3istence of 6ultiple theories of la&# and different approaches to la&. Legal philosophers&ho had devoted a lifeti6e of stud* and anal*sis to the funda6ental issues of la&# asdistinct fro6 an* particular branch of la&# have contributed 6uch to our understanding of la&. Te3tbooks on 8urisprudence usuall* classif* these contributions under theories of

la&# approaches to la& or schools of 8urisprudence. or anal*tical purposes# &e 6a*classif* the theories under several broad titles. -o&ever# the truth is that under ever*categor* &e find several varied versions and vie&s. Each theor* or approach has beenaccepted or re8ected at various points in ti6e. Each theor* has been criticised# re'interpreted# or 6odified. 9tudents of la& generall* feel that the 6ost difficult part of 8urisprudence is the one that deals &ith theories of la&. hile it is true that the task tograsp the intricacies of various theories of la& is not easil* acco6plished# a preli6inar*understanding of the i6portant aspects of these theories is intellectuall* &ell &ithin thereach of an average student of la&. Infact# the s*llabus reuires stud* onl* to that e3tent#leaving a deeper and 6ore critical stud* for those &ho are reall* interested and6otivated.

The uestions &hich arise are as to &h* &e should stud* these abstract theories andapproaches# and in &hat &a* does the stud* help us in understanding particular branchesof la&# or in solving practical proble6s of la&F These are the uestions freuentl* asked b* the la& students. It 6ust be understood that no branch of la& can stand in isolation#and no legal proble6 can be solved &ith the help of a read*6ade rule alone. Each legalrule and each branch of la& 6ust be conceived as part of a legal



6 Lectures in Jurisprudence i

s*ste6. arious approaches to la&# and theories of la& help in understanding a legals*ste6.

A &ord of caution is necessar* here. The approaches and theories# &hich &e &ill

discuss in this and the subseuent lectures# &ill help in understanding the nature andfunction of la& and the legal s*ste6. inall*# one 6a* feel that no single theor* providesa totall* satisfactor* e3planation. That is precisel* the reason &h* it beco6es necessar*to undertake a stud* of all these theories. hile each theor* offers onl* a partial vie&and has 6an* defects and li6itations# an understanding of all the theories &ill certainl*give a broad vision of la&.

Let us begin our discussion &ith the historical approach. It considers la& in directrelationship &ith the Life of the co66unit*. The central uestion that this approachraises is as to ho& did la& evolveF The historical approach believes that la& evolved# asdid language# b* a slo& process# and la&# like language# is a peculiar product of anation>s genius. Later# &hen &e discuss the positivist approaches to la&# &e &ill find that

Austin defined la& as the co66and of the sovereign. The historical approach re8ects thisdefinition# and states that the source of la& is not the co66and of the sovereign# noteven the habits of the co66unit*# but the instinctive sense of right possessed b* ever*race. The real source of la& lies deep in the 6ind of 6en.

The historical approach co6prises inuiries into the past and evolution# &ith the ob8ectof elucidating the position toda*. The inuir* is undertaken 6ainl* to find out the e3tentto &hich the >oughts> of conte6porar* la&s have been fashioned b* the past. Inuir* intothe past# especiall* into pri6itive and undeveloped co66unities# conducted to discover &hat >la&> 6ight appropriatel* be taken to 6ean# is kno&n as the anthropologicalapproach. It is a variant of the historical approach.

There are several factors &hich paved the &a* for the rise of the historical approach.

irst of all# it &as a reaction against the non'historical assu6ption of the natural la&theor*# &hich &e &ill e3a6ine later. The need for a realistic investigation into historicaltruths &as recognised. The rench revolution# &ith all its brutalities# &as considered asthe cul6ination of the atte6pt to establish a legal s*ste6 based on reason# &ithoutreference to past or e3isting circu6stances. It &as rench conuest b* Napoleon thataroused the gro&th of nationalis6 in Europe. 9ince there &as hostilit* to&ardsever*thing associated &ith rench# the idea of codification# &hich arose in rance# &asalso treated &ith hostilit*# and the historical approach provided a theoretical foundationto the opponents of codification. The influence of thinkers like ontesuieu# &ho6aintained that la& &as shaped b* social# geographical and historical considerations#&as another

2,



$pproaches to Law - Historical $pproach

$( significant factor. In England# Ed6und $urke echoed this vie&# and referred to thei6portance of tradition as a guide to social change.

The 6ost influential and i6portant 8urist of the historical school &as 9avign*. -e

&arned that refor6s &hich &ent against the strea6 of a nation>s continuit* &eredestined to fail. The essential prereuisite to the refor6 of la& &as a deep kno&ledgeof histor*. -istorical research &as the indispensable 6eans to the understanding andrefor6 of the present. 9avign* e6phasised that the 6uddled and out6oded nature of alegal s*ste6 &as usuall* due to a failure to co6prehend its histor* and evolution.

The 6ost i6portant contribution of 9avign* to the understanding of la& &as histheor* that the nature of an* particular s*ste6 of la& &as a reflectionXoLthe spirit of the people &ho evolved it. -e called it 25ol"s#e's'>. Puchta# a cfisciple of 9avign*#asserted that la& &as the 6anifestation of a co66on conscience. >La& gro&s &ith thegro&th and strengthens &ith the strength of the people and finall* dies as the nationloses its nationalit*.>

The broad principles of the s*ste6 are to be found in !ol"s#eist, &hich are 6anifestin custo6ar* rules. It follo&s that la& is8i 6atter of unconscious gro&th. La& 6akingshould# therefore# follo& the course of historicaldevelop6ent. 9avign* considered custo6 as preceding and superior tolegislation. Legislation should al&a*s confor6 to the popular consciousness. La& is#thus# not of universal application. It varies &ith people and ages. !ol"s#eist, accordingto 9avign*# is the standard b* &hich la&s are to be 8ustified.

9avign* clearl* ad6itted that !ol"s#eist onl* for6ulated the rudi6entar* principles of a legal s*ste6# and it did not provide all the necessar* details. As societ*# andconseuentl* la&# beco6es 6ore co6ple3# a special bod* of persons is called into being&hose business is to give technical# detailed e3pression to !ol"s#eist. These are the

la&*ers &hose task is to reflect accuratel* the prevailing #eist. In the branches of la&the !ol"s#eist 6anifests itselfG it &ould be helpful if legislators took account of traditions &hen fra6ing ne& la&s. Even though 9avign* 6aintained that legislation&as subordinate to custo6 and should confor6 to !ol"s#eist, he did not opposelegislation or refor6 b* &a* of codification at so6e appropriate ti6e in the future. Theonl* reuire6ent is that codification should be preceded b* >an organic# progressive#scientific stud* of the la&>.



+omments on @ol"s)eist

Even those &ho accept the idea of !ol"s#eist point at the difficulties in

fi3ing it &ith precision. 9avign* treated it as a discoverable thing.-o&ever#

2;




our e3perience is that even in a s6all group# people hold different vie&s ondifferent sub8ects. This is all the 6ore true for a nation. 9o6e critics go to thee3tent of sa*ing that the )eist does not e3ist.

-istor* is replete &ith e3a6ples of transplantation of la& in alien lands. Ro6anLa& &as transplanted in Europe. Ro6an'Dutch La& &as taken to distinct places#and it still survives in 9outh Africa and 9ri Lanka# long after it has disappearedfro6 its ho6eland. The reception of English La& in so 6an* parts of the &orld#including India# is also an evidence o& supra'national adaptabilit* and resilience.All this is inconsistent &ith 9aving*>s idea of @ol"s)eist# and goes to sho& thatthere is so6e ualit* in la& other than 8ust popular consciousness.

It has been pointed out that the influence of @ol"s)eist is onl* a li6ited one. Itsinfluence see6s to 6anifest itself 6ore strictl* in so6e branches o& la& than inothers. or instance# inspite of the successful introduction o& an alien s*ste6 of la& into India and Turke*# the indigenous fa6il* la&s re6ained practicall*

unaffected.9o6e co66entators have dra&n attention to the distinction bet&een < thecreative influence of @ol"s)eist# and its adaptative and abrogative = influence. In6odern ti6es# the function of @ol"s)eist is that of 6odif*ing and adapting# rather than creating. The fact that la& is so6eti6es used deliberatel* to change e3istingideas and 6a* also be used to further interstate co'operation in 6an* spheres# isnot recognised b* the historicaK school.

9o6e other li6itations of @ol"s)eist also need to be 6entioned. an*G institutionshave originated# not in @ol"s)eist# but in the convenience of a ruling oligarch*.9laver* is a clear e3a6ple of this. In India# the practice o&. untouchabilit* &as started b* the do6inant classes. It is pertinent to point I out that 6an* custo6s o&e theirorigin to the force of i6itation# and not to an* innate conviction of theirrighteousness. 8

@ol"s)eist does not adeuatel* e3plain the e3istence of local custo6. Theuestion is if la& is the product of @ol"s)eist# ho& is it that onl* so6e people andnot all have evolved a special ruleF 9avign* tries to e3plain this b* recognisingthe e3istence of >inner circles> &ithin a societ*.

In an* 6odern state i6portant rules of la& ver* often develop as the result of conscious and violent struggle bet&een conflicting interests# and not as a result of i6perceptible gro&th. The la&s protecting the rights o& &orkers is a conspicuouse3a6ple. In India# the conflict bet&een the landless labourers and the lando&nershas seen violent agitation and intervention of la& in the for6 of land refor6legislation. Thus# at least in so6e cases# instead of being a reflection of @ol"s)eist# la& has in effect shaped @ol"s)eist*

Roscoe Pound &as critical of 9avign* s >8uristic pessi6is6> in distrusting

3



I



!pproaches to Law I: -istorical !pproach

an* deliberate atte6pt to refor6 the la&# and in not recognising the creative &ork of 8udges and 8urists. Dias observes that 9avign* >did grasp a valuable truth about la&# butruined it b* over e6phasis>.

Inspite of its li6itations# the historical approach has 6ade 6an* significantcontributions to the legal theor*. It provided a great sti6ulus to the historical stud* of la& and legal institutions# &hich has ingrained a sense of historical perspective in theoutlook of la&*ers. In England# the influence of the historical approach can be seen inthe &ritings of aine# inogradoff# Pollock# aitland# and -olds&orth. It clearl*de6onstrates the close connection bet&een the )o66on La&# and the social and political histor* of England.

$* insisting that la& cannot be understood &ithout an appreciation of the social 6ilieuin &hich it had developed# the historical school destro*ed the idea of i66utable rules of la& discovered b* abstract reason. In the place of 6oral authorit* behind la&# thehistorical school substituted social pressure. This bridged the gap bet&een historical# and

sociological schools. Though the historical school challenges 6ost of the assu6ptions of the natural la& school# there is one point &here both these theories concur. $oth consider for6al criteria of validit* of la& to be of subordinate i6portance. Thus# the gro&inginfluence of the historical school indirectl* paved the &a* for the resurgence of naturalla&.SY In a period &hen the e6phasis &as shifting fro6 custo6 to legislation and atte6ptsfor la& refor6s through legislations &ere in full s&ing# the historical schoolde6onstrated its perils and taught the lesson that develop6ent should flo& &ithin thechannels of tradition. It also de6onstrated the connection bet&een so6e parts of la& andcultural evolution# and the need to delve into the past so6eti6es in order to obtain a fullunderstanding of the la& as it is at present.

e have no& seen the contribution and li6itation of the historical approach. No& ho&do &e conclude our discussionF e borro& fro6 Paton &ho observed/ >The historical6ethod in 8urisprudence should be supple6ented b* a critical approach based on a philosoph* of la&# in order that true perspective 6a* be 6aintained.>

There are so6e other approaches to la& closel* allied to the historical approach# &hichare also generall* discussed along &ith the historical school. e &ill e3a6ine the6 briefl*.

,nt"ropo0o$ica0 ,pproac"

-enr* aine# &ho is considered to be the greatest representative of the historical schoolin England# inaugurated both the co6parative and

2@




anthropological approaches to the stud* of la&. Instead of stressing the ( uniueness of national institutions# he brought to bear a scientific urge to I unif*# classif*# andgeneralise the evolution of different legal orders.

Tracing the pattern of legal develop6ent# aine identified four stages# E(i la&'6aking b* personal co66and believed to be of divine inspirationG f (ii co66ands cr*stallise into custo6sG (iii the ruler is superseded b* a 6inorit* &hoobtain control over the la&G and (iv revolt of the 6a8orit* against oligarchic 6onopol*and publication of la& in the for6 of a code. According to aine# static societies do not progress be*ond this point. -o&ever# progressive societies proceed to develop the la& b* three 6ethods# viH legal fiction# euit*# and legislation. $* the use of fiction# la&could be i e3tended or changed to 6eet the changing needs of societ*# &hile it &as # pretended that la& re6ained unchanged. Euit* &as a set of principles that &ereconceived to have a higher sanctit* than the current rules of la&# and# therefore# couldsupersede la&. Legislation is the direct la& 6aking b* the authorit* of the state. aine

recognised that the progress of civilisations de6anded an increasing use of legislation.)odification is an advanced for6 of legislative develop6ent# and represents the stage at&hich all the preceding phases of develop6ent are &oven into a coherent &hole.

According to aine# in earl* societies the legal condition of the individual &asdeter6ined b* status. It 6eans that his clai6s# duties# liberties etc# &ere deter6ined b*la&. The 6arch of >progressive> societ* &itnessed the disintegration of status and thedeter6ination of the legal condition of the individual b* free negotiation on his part.This is su66arised in aine>s fa6ous observation/ >The 6ove6ent of progressivesocieties has hitherto been a 6ove6ent fro6 status to contract.>

aine>s >status to contract theor*> 6a* be illustrated &ith reference to the earl*Indian societ*. In the age of ancient codes# such as the S'ritis# fa6il* &as a unit of thesociet*. Legal conditions of the individual# his rights# duties# privileges etc# dependedon his status in the fa6il*# 9ubseuent social develop6ents reduced the authorit* of the pater fa'ilies or the "arta of the 8oint fa6il*. The rigid dependenc* of the individualstatus gave &a* to a greater freedo6 of &ill and 6ove6ent. The individual acuiredthe capacit* to enter into contracts# and to involve hi6self in & personal obligations.Another e3a6ple is the position of slaves &ho &ere not recognised as persons b* la&.+raduall*# the* acuired freedo6# and eventuall* slaver* evolved into contractualrelation of e6plo*er and e6plo*ee. Earl* histor* also reveals the denial of 6an* legalrights# including the right to o&n propert* and the right to vote# to &o6en. In a feudalsociet*# a person>s status deter6ined his relation to land. -o&ever# all these are no&things of the past.

25



!pproaches to Law I: -istorical !pproach

-e to

ritis#= "is

0i0y.

0-ies0ua0

iua0

- inrere

tnd

nd

in$

da0

<scLegal scholars have raised doubts about the relevance of aine>s >status to contract





ost anthropologists agree that &hat is called >la&> should be described in ter6s of itsfunctions and the attitude of the people to&ards it# rather than in ter6s of for6 or enforce6ent.

Dia0ectica0 (nterpretation

This theor*# associated &ith the great thinker -egel# distinguishes bet&een la&s of nature# and positive la&s. La&s of nature are outside hu6an consciousness# and cannever be i6proved. The* have to be accepted because the* e3ist. Positive la&s# on theother hand# are 6an'6ade and# as such# do not have to be accepted because the* e3ist.

-egel considered evolution as a process of action and reaction bet&een opposites#thesis and anti'thesis# &hich results in their s*nthesis. The >idea>

22



is thesis and its anti'thesis is the >idea outside itself# &hich is nature. The s*nthesis isspirit# of &hich the @ol"s)eist is possibl* an aspect. The sub8ective spirit (thought andconsciousness and its anti'thesis# the ob8ective spirit (legal and social institution ares*nthesised in the absolute spirit. La& co6es into the categor* of ob8ective spirit. La&and other social institutions# according to the -egelian theor*# are the result of free

sub8ective &ill endeavouring to realise freedo6 ob8ectivel*.

io0o$ica0 (nterpretation

-erbert 9penHer advanced a theor* of la&# dra&ing parallels bet&een the socialorganis6# and the biological organis6. According to hi6# the adaptation of the individualto social conditions is due to heredit*. -e inherits a social instinct fro6 his ancestors#including ideas of 6oralit*# obligation# right# and 8ustice. In this 6anner differentsociological groups evolve differentl*# and so do their la&s and institutions.

9pencer identifies t&o stages in the process of evolution. In the first# &hich is

pri6itive# &ar and co6pulsion figure pro6inentl*. In the second# &hich is advanced# peace and freedo6 are pro6inent. 9pencer &as a strong individual &ith a laisseH faireapproach to govern6ent. -e denied the co6plete absorption of the individual in the state#and 6aintained that the dut* of govern6ent &as to secure individual to the greatest possible e3tent. ith his strong belief in the evolution of la&# 9pencer naturall* did nothave 6uch faith in legislative refor6.

Racia0 )"eory o& La!

This theor*# &hich prevailed in National 9ocialist +er6an* under -itler# is based on thefollo&ing t&o cardinal principles/

Leaders"ip %rincip0e

The state is a group# and a group has no strength or unit* &ithout a leader. The leader#therefore# beco6es the 6*stical personification of national unit*. La& and the states beco6e the sa6e thing and since the leader is the e6bodi6ent of the state# la& is &hatthe leader co66ands. This i6plies the follo&ing/ (i unuestioning obedienceG (ii la&should serve political endsG and (iii nothing# not even reverence for statutes# shouldstand in the &a* of i6ple6enting the &ill of the leader.

2:



Racial Principle

According to this theor*# la& &as inherited b* blood. It should (i save the ends of thestate and its policiesG and (ii help to preserve racial purit*# for the state cannot be strong#unless it is raciall* pure.

According to this theor*# the onl* international s*ste6# &hich could be tolerated# &as anordic one# ie# one based on a blood tie. Ever* state has a natural privilege and po&er to prevail over other states# and to take their land for its o&n people.

This theor* derived inspiration fro6 the historical school# biological interpretation# andthe -egelian theor*# but in a perverted &a*. ro6 the historical school# the idea that theroots of la& lie deep in the past &as adopted to lend a nationalist flavour to the racialtheor*. The biological theor* &as used to perpetuate the idea that la& &as inherited b* blood. The -egelian theor*# &hich sho&ed ho& the individual could be integrated intosociet*# &as utilised to suppress individual rights.

@ierke- , 2istorian !it" a Socio0o$ica0 %erspecti:e

+ierke# &ho carried on the surve* of the historical school further# represented acollectivist rather than an individualist approach. To this e3tent# his &ork is closer to thatof the sociologists# but his interpretation of this develop6ent on historical lines earns hi6a place a6ong the front'runners of the historical schools.

The distinct contribution of +ierke lies in his e6phasis on the significance of associations. +ierke denied that the recognition of an association as a person depended onthe state. According to hi6# the realit* of social control lies in the &a* in &hichautono6ous groups &ithin societ* organise the6selves. -e then proceeded to trace the

progress of social and legal develop6ent in the for6 of histor* of the la&# and practice of associations.+ierke>s critics point out that he never uite succeeded in reconciling the independence

of autono6ous bodies &ith the supre6e po&er of the state.

21





Lecture 3

,pproac"es to La! ((- Economic ,pproac"

The econo6ic approach 6a* be considered as a variant of the historical approach in sofar as it has sought to unfold a pattern of evolution. To so6e e3tent# it is sociological because it concerns the part &hich la& has pla*ed# and is pla*ing in societ*. et it differsfro6 both historical and sociological approaches in that its 6ain concern is &ith thecontent of la&# the nature of &hich is regarded as a refle3 of an econo6ic substrata.

Interpretation of la& as a part of an econo6ic interpretation of social evolution is a b*' product of the social and political theories of thinkers like ar3 and Engels. e do notfind an* specific definition of la& in the &ritings of ar3 and Engels. Their vie&s on

la& are not set out separatel* in an* treatise# but lie scattered in their &ritings. Theapproach in these &ritings# &hich &e 6a* call ar3is6# reveals a s*ste6 of sociolog*# a philosoph* of 6an and societ*# and a political doctrine. In order to understand thear3ist approach to la&# &hich is often described as an econo6ic theor* of la& andstate# it is necessar* to consider at least so6e aspects of ar3ist ideolog* because la& istreated as a 6anifestation of that ideolog*.

Like -egel# ar3 and Engels visualised histor* as an unfolding and d*na6ic pheno6enon according to the recurrent conflict bet&een a thesis and anti'thesis. -egelconsidered ideas as the deter6inant factor of develop6ent. This &as substituted &ith6aterial and econo6ic forces b* ar3 and Engels. According to -egel# >realit* is but areflection of an idea.> -o&ever# to ar3# >ideas are reflections of realit*>.

The pri6itive tribal societ*# according to ar3# contained no anti'thesis in itself as longas there &as eual distribution of co66odities. hen distribution beca6e uneual# thesociet* &as split into classes patterned b* the division of capital and labour. alue of co66odities# thus# ca6e to be governed b* the cost of labour reuired to produce the6.The place of




the tribal societ* &as taken b* the state# &hich beca6e the instru6ent of the stronger class. The 6odern capitalist state necessaril* involves the do6ination of the labouring6a8orit* b* a 6inorit* &hich controls the econo6ic resources of the countr*. La& is an

instru6ent b* &hich this 6inorit* e3ploits the &orking class. The tension bet&eencapital and labour &ill eventuall* break into conflict# a revolt of the 6a8orit* against the6inorit*. Qlti6atel*# the 6a8orit* &ill gain control of the econo6ic resources# eli6inatethe 6inorit*# and establish a dictatorship of the proletariat. This &ill lead to co66unis6or classless societ*. Do6ination &ill cease# ineualities &ill vanish and eventuall*# thestate and the superstructure in the for6 of la& &ill disappear as &ell.

arxist )"eory

ar3ist theor* conceived la& as an instru6ent of govern6ent polic*. Traditional

doctrines such as separation of po&ers# rule of la&# and 8udicial independence &ere6eaningless. ar3ist theor* asserts that 8udges# like la& itself# are instru6ents of state polic*. ( Pursuant to ar3ist theor*# the follo&ing four doctrines as to the nature I of la&6a* be for6ulated/ I

Doctrine of Econo6ic Deter6ination of La& /

According to this doctrine# la& is a superstructure on an econo6ic s*ste6. Econo6icfacts are independent of# and antecedent even to la&. $ourgeois theories of la& &hich present it differentl* are 6ere distortions. There 6a* be other superstructures andideologies# eg religion# but the* all have their ulti6ate realit* in the background of econo6ics.

Doctrine of )lass )haracter of La&

This doctrine postulates that la& is an instru6ent used b* the rulers to keep the 6assesin sub8ugation. Even after the establish6ent of proletarian dictatorship# la& &illcontinue to be used as the instru6ent b* &hich the &orking class 6a8orit* can crush andeli6inate the capitalist 6inorit*. La& is# thus# an instru6ent of do6ination.

1

Doctrine of Identit* of La& and 9tate

The state ca6e into e3istence as soon as there &as uneual distribution off co66odities#and subseuent develop6ent of class distinctions. La& &as

:,





!pproaches to Law II: Econo'ic !pproach

one of the 6eans &hereb* the capitalist 6inorit* sought to preserve and increase its po&er. Those &ho had propert* used the legal s*ste6 to protect it against those &ho didnot have propert*. The la& and the state in capitalist societies together for6 an apparatus

of co6pulsion and do6ination.

Doctrine of ithering A&a* of La& and 9tate

This doctrine states that &hen the co66unist or the classless societ* is established# there&ill no longer be an* do6ination or ineualit*. Therefore# the t&o instru6ents of do6ination# ie# the la& and the state# &ill &ither a&a*.

The ar3ist theor* dra&s attention e3plicitl* to the coercive and repressive features of la&. La& is seen as a 6eans of do6ination# oppression# and desolation. The focus of attention is on the la&'state relationship. La& is reduced to a position &here it is

presented as a si6ple instru6ent in the hands of the holders of state po&er. The state isvie&ed as an instru6ent or 6echanis6 &ielded b* the do6inant socio'econo6ic class.This is so6eti6es called the instru6entalist vie& of la&. hile e3plaining the classcontent of la&# DN Pritt observes that a class holding state po&er is the 6aker of la&# andit 6akes it in accordance &ith its class interest. La& is successful because it disse6inatesa false consciousness# spreading the illusion of neutralit* and i6partialit*. The greater thefunctionalit* of la&# the greater is the do6ination of la& over people>s lives. La& has been co6pared to an >iron fist in the velvet glove>.

Atte6pts have been 6ade b* 6odern 8urists to present 6odified versions of the ar3isttheor* of la&. $efore e3a6ining the6# &e &ill briefl* consider the 6a8or criticis6s of thetheor*. hile agreeing &ith the fact that la& has been used as an instru6ent for therepression of one class b* another# so6e critics point out that this has not been the solefunction of la&. Regulation# and even coercion# is unavoidable in order to enable an*societ* to function effectivel*. La& gives practical e3pression to the balance that has to be struck bet&een co6peting interests. It ceases to be 6erel* an instru6ent of do6ination# and beco6es a 6eans of ad8usting interestsG an independent 8udiciar* pla*s a6a8or role in this process. )ritics attack the ar3ist theor* for its failure to recognise therole of la& as a 6eans of preserving securit* and 6oral standards# and also as a 6eans of restraining oppression b* classes of individuals. According to the6# la& satisfies theineradicable hu6an craving for 8ustice.

Cther features of the conceptualisation of la& &hich run counter to the ar3ist theor*are/

(i la& represents the value consensus of societ*G

:;



J



i


(ii la& represents those values and perspectives &hich are funda6ental to socialorder# and deserve protection in public interestG

(iii the state as represented in the legal s*ste6 is value'neutralG and

(iv in pluralistic societies# the la& represents the interests of the societ* at large b*6ediating bet&een co6peting interest groups.

The conceptualiHation of la& as an agenc* of integration# &hich &e find as a basic postulate in the critiue of the ar3ist theor*# and that of la& as an instru6ent of

oppression and protector of the do6inant econo6ic interests# &hich is the basic tenet of the ar3ist theor*# see6 to represent t&o e3tre6e positions. ar3is6 challenges the

assu6ption of desirabilit* and naturalness of la&# of the essentialit* of la&# and of la& asa necessar* e3pression of a



&ell'balanced and integrated societ*.There are other thinkers &ho have e3pressed doubts about the validit* of the basic

superstructure 6etaphor# and the econo6ic deter6inis6 pro6inent in the ar3ist theor*of la&. a3 eber feels that la& 6ight affect the econo6*. -art&ell argues/ >...legalinstitutions have so6e autono6* of their o&n &hich# in var*ing degrees# 6akes the6

e3ogenous variables in an* process of econo6ic change.> -oro&itH# &ho studied therelationship bet&een la& and econo6* in the A6erican conte3t# traces the influence of econo6* on la&# and also sho&s ho& la& helped to forge a 6a8or change in theecono6*. It is interesting to note that -oro&itH>s stud* identifies an alliance bet&een thelegal profession# and the 6ercantile class. -e sho&s the 6anner in &hich la& activel* participated in econo6ic gro&th# and de6onstrated the role it pla*ed in capitalistaccu6ulation# and in redistri;ution o& !ea0t" ard poitkai po&er. )IIIs stud* providesi ne& insight into the relationship bet&een basic and superstructure revealing the activerole pla*ed b* the superstructure in re'designing the econo6ic base.

ar3ist theor* has generated a great deal of discussion in various disciplines# so6e of &hich have a bearing on la& also. Although it is not possible to touch even the fringe of

all 6odern &ritings on the sub8ect# &e &ill briefl* refer to a fe& of the6. 9u6ner !observes that legal ideolog* contains 6ore than 8ust capitalist econo6ic ideolog*. La&reflects the ideologies of different fractions &ithin the bourgeoisie# and the ideologies of other classes. It also reflects the ideologies of occupational groups# 6inorit* groups# andideologies related to fa6il* structure# political representation etc. La& is an ideologicalfor6 of the fullest co6ple3it*# but it is not euall* pluralistic. 9u6ner sa*s that it is basicall* a reflection of class ineualit* e3pressing the ideologies of the do6inant class.According to hi6# >the

/ ,eadin) Ideolo)ies# /939.

:"




legal s*ste6 is first and fore6ost a 6eans of e3ercising political control available to the propertied# the po&erful and the highl* educated. It is the &eapon and to* of thehege6onic bloc of classes and class fractions &hose rough consensus it sustains.>

PoulantHas e3plores the concept of autono6* of state# and that of la&. -e uses thee3pression >relative autono6* of the state> to e3press the idea that &hatever autono6* thestate 6ight have# it re6ained# for all practical purposes# the state of the ruling class.Deviating fro6 this vie&# Theda 9kocpol argues that the state is >an autono6ousstructure# a structure &ith a logic and interests of its o&n# not necessaril* euivalent to#or fused &ith# the interests of the do6inant class in societ*>. The degree of autono6*en8o*ed b* the state is dependent on the hege6on* of the do6inant class. here thedo6inant class is trul* all po&erful in econo6ic# political# social and cultural ter6s andfree fro6 effective challenge# the state &ill be sub8ect to its hege6on*. here suchhege6on* is strongl* challenged# the autono6* of the state is likel* to be substantial.

Qpendra $a3i#, an Indian 8urist# after anal*sing PoulantHas>s concept of relative

autono6* of state and la&# observes that 6odern la& perfor6s distinct and separatefunctions against the do6inating class# and for the do6inated. -e accepts the realit* of the notion of relative autono6* of la&# and adds that &ithin it also d&ells the differentialautono6* of legislation# ad8udication# ad6inistration# and enforce6ent.

7arl Renner is another i6portant 8urist &ho atte6pted to construct a theor* of la&using the ar3ist sociolog*. Renner noted that infrastructure and superstructure &ere6etaphors &hich served onl* to illustrate the connection# not to define in e3act ter6s. -e

6ade a deep anal*sis of the relationship of propert* and societ*.; -is thesis is that inspiteof the stabilit* of legal concepts like propert* and contract# their social functions hadundergone profound transfor6ation. hile agreeing &ith the vie& that in order tounderstand a legal concept one had to penetrate its econo6ic base# Renner deviated fro6

the ar3ist approach in recognising that la& 6ight itself beco6e an active agent inreshaping social conditions. The i6portance of Renner>s &ork lies in de6onstrating that part of la& &hich has shaped the econo6ic develop6ent.

+ra6sci &idened the ar3ist focus on econo6ic relations in societ* to e6brace politics# culture# and ideolog*. -e believed that class do6ination resulted as 6uch fro6 popular consensus engineered in a civil societ* as fro6 ph*sical coercion or its threat b*the state apparatus. This &as

7 $arx# Law and Justice# /994.

4 Institutions of Private Law and their Social Functions# /99.

:@



particularl* the case in advanced capitalist societies &here the 6edia# 6as.> culture#education# and la& had assu6ed ne& roles.

A critical school of ar3is6# kno&n as the rankfurt school# atte6pta to link ar3is6to social ps*cholog*. The school dra&s our attention tY the oppressive co6ple3it* of advanced technological societ*# &hich i increasingl* sub8ected to the control of

technocrats. Technolog* and scieno create a specific t*pe of kno&ledge &hich is utilisedto 6aintain do6inatioi and repression. arcuse# &ho belongs to the rankfurt school#e3presse doubts about the revolutionar* potential of a &orking class do6inated b thei6pact of technocratic ideolog*.

hile tr*ing to understand la& fro6 a ar3ist perspective# one uestio that 6a* arisein our 6inds is about la&s &hich restrain oppression# ( la&s &hich are against theinterests of the ruling class. )ha6bliss assei that In&s are passed &hich reflect theinterests of the general populatk and &hich are antithetical to the interests of those in po&er. ar3ists &ou argue that such la&s are a bribe# a s6all concession to bu*'off thede6ai for 6ore funda6ental changes. Another proble6 that &e face &hile appl*i thear3ist theor* to conte6porar* pluralist societies is the difficult* identif*ing the ruling

class. The po&er structure in such societies i/ co6ple3 arrange6ent of po&er centres#&hich 6akes shifting co6pro6i and acco66odations. Robert Dahl points out thedifficulties in identif* a 6onolithic# all'po&erful ruling elite. odern develop6ents also sho@ deco6position of capital and a separation of o&nership of 6eans production fro6their control# as a result of the 6anagerial revolution/ gro&th of corporatis6. Dahrendorf#&ho raised these issues# also refei to the deco6position of labour# division bet&eenskilled and unski &orkers# indigenous &orkers and i66igrants# and the e6ergence of 6ilclass. hen &e tr* to develop a theor* of la& fro6 the ar3ian perspeci thesedevelop6ents 6ust also be taken into account.

In the ar3ist anal*sis# the 8udiciar* is. as 6uch a part of the central state po&er as

the e3ecutive# legislature# civil service# 6ilitar*# and the pc A+ +riffith" asserts that

the 8udiciar* supports the status uo. interesting to recall ho& a criticis6 of the 8udiciar* in the ar3ist ideolo perspective led to conte6pt of court proceedings beforethe 9upre6e ) of India. In the *ear !152# the then ar3ist )hief inister of 7( E9 Na6boodiripad# 6ade the follo&ing observations in a press inter

arx and En$e0s considered t"e <udiciary as an instrument o& oppression..

Jud$e are dominated ;y c0ass "atred= c0ass interests and c0ass pre<udices.

#"en e:idenc is ;a0anced ;et!een a !e00 dressed pot ;e00ied ric" man and a

poor= i00 dresse

The Politics of the Judiciar%# /99/.

:5




and illiterate person# a 8udge instinctivel* favours the for6er... the udiciar* is&eighted against &orkers# peasants and other sections of the &orking classes and

the la& and the s*ste6 of the 8udiciar* essentiall* serve the e3ploiting classes...Even &hen the 8udiciar* is separated fro6 the e3ecutive it is still sub8ect to theinfluence and the pressure of the e3ecutive.

The 7erala -igh )ourt convicted Na6boodiripad for conte6pt of court# inspite of the

dissent b* 77 athe& &ho held that the right to freedo6 of speech and e3pression

guaranteed b* the )onstitution protected Na6boodiripad>s observations. The 9upre6e

)ourt also upheld the conviction# but reduced the fine fro6 Rs !#%%% to Rs @%.@

Economic ,na0ysis o& La!

As distinct fro6 the ar3ist approach# &hich denies la& an* autono6* and considers itas an ele6ent of superstructure and as an instru6ent of class do6ination# there is another approach rooted in econo6ics &hich is found in the &orks of Ronald )oase# +uide)alabresi# and Richard Posner. This school of thought advocates that la& ought to beconcerned &ith econo6ic efficienc*. It clai6s to put for&ard a descriptive theor* of la&in &hich la& is si6pl* concerned &ith pro6otion of econo6ic efficienc*# and the protection of &ealth as a value. ealth# in the econo6ist>s sense# is not a si6ple 6onetar*6easure# but refers to the su6 of all tangible goods and services.

The econo6ic school 6akes the assu6ption that hu6an beings are rational. In other &ords# the 6an is a rational 6a3i6iser of his satisfactions. The econo6ic approachargues that people are rationall* self'interested. hat the* do# sho&s &hat the* value#and their &illingness to pa* for &hat the* value is the ulti6ate proof of their rational self interest.

The rational 6an in the econo6ist>s assu6ption is not the sa6e as the reasonable 6anaccording to this legal doctrine. The reasonable 6an &ill ordinaril* behave in areasonable# prudent 6anner. Thus# he &ill act &ith fair regard to the &elfare of others.The rational 6an# on the other hand# seeks to 6a3i6ise his o&n self interest. -e sho&sonl* li6ited concern for the &ell being of others.

Cne significant contribution to the econo6ic approach &as 6ade b* Ronald )oase. -istheor* is &idel* kno&n as the >)oase Theore6>. e &ill e3plain the )oase Theore6 &ithan e3a6ple. 9uppose a factor* is e6itting s6oke# and thereb*# da6aging the clothes hung

out for dr*ing on the terrace of five neighbouring houses. In legal ter6s# the uestion is

1 E$S a'boodiripad v T0 a'biar!I, 2A?B SC B2D*

!









as a na* that age. that lave 8ase# n or

this takes /r b* #@%%# / at a lood. costs #@%%. i? e &# viH . The ustice

costs# &ho6 of the led. If es not o&ing Ge 6a* /nts of 3ist. If occur e is the

saction nature nt. The G prevail n air or cording $pproaches to Law - Aconomic $pproach

to )alabresi# those decisions 6ust be taken on considerations of econo6ic U efficienc*#distributional preferences# and other 8ustice considerations. Richard Posner# another leading e3ponent of the econo6ic school# is of the vie& that the &hole process of legislation is based on the funda6ental assu6ption that legislators are rational6a3i6isers of their satisfactions like an*one else. The desire for getting elected leadslegislators in striking deals &ith organised interest groups for votes# the bargain being

that the interest groups &ill provide votes and 6one* for the ca6paign in return for favourable legislation. According to Posner# 8udges have a dual role/ to interpret theinterest group deals e6bodied in legislation# and to provide the basic public service of authoritative dispute resolution. udges are also driven to be efficient b* the fact thatinefficient decisions &ill i6pose greater social costs than efficient ones. Litigants losingfro6 an inefficient 8udicial decision &ill have a 6uch greater incentive to appeal thanthose &ho lose b* reason of an efficient decision. The proliferation of appeals andsubseuent legal costs act as a disincentive for the 8udge to act be*ond the confines of efficienc*. -o&ever# Posner ad6its that although &ealth 6a3i6isation is built into thela&# *et due to the independence of the 8udiciar* the la& does not achieve perfectefficienc*. The 8udicial preference for basing decisions on precedents rather than on

econo6ic considerations is another factor. No& &e &ill e3a6ine the 6anner in &hich econo6ic anal*sis could be applied tospecific branches of la&. irst# &e &ill take the la& of contract. )ontractualtransactions are voluntar* transactions. h* is there a need for a la& governing the6Fh* does the la& have to intervene in this natural> process of e3changeF Posner arguesthat there is no need for legal intervention &hen the parties perfor6 their part of the bargain si6ultaneousl*. This is ver* rare. Qsuall*# there is a gap bet&een the e3ecutor*stage# and the e3ecuted stage of a contract. It is because of this lapse of ti6e that thela& of contract has developed. In the period bet&een agree6ent and perfor6ance# one parr* is at the 6erc* of the other and# therefore# reuires legal protection. Posner e3plains the basic doctrine of contract in ter6s of efficienc*. )onsideration pro6otesthe need for econo6ic e3change. Da6ages for breach protect a part*>s e3pectations.9tudents of contract la& are fa6iliar &ith unilateral contracts or general offers. Posner

puts such contracts in a ne& light in the follo&ing e3a6ple/5 4 offers O!% for the returnof his lost cat. There is no negotiation &ith potential finders# no acceptance of this offer in the conventional sense. êt so6eone &ho hears of the re&ard and returns the cat hasa legall* enforceable



6 Econo'ic !nal%sis of Law# t"ird edn= /986= p 89.

:1



clai6 to the re&ardG his co6pliance &ith the ter6s of the offer is treated as acceptance.The result is correct because it pro6otes a value 6a3i6ising transaction. The cat is &orth6ore than O!% to '\and less than O!% to the finder# so the e3change of 6one* for the catincreases social &elfare# *et it &ould not be so likel* to occur if the finder did not have alegall* enforceable clai6 to the re&ard.

)ri6inal la& 6a* appear to be outside the boundaries of econo6ic anal*sis of theefficienc* principle. Infact# it is not so. The econo6ic rationale behind cri6inal la&

vie&s cri6e# &ith the e3ception of cri6es of passion# as an econo6ic activit* &ith

rational participants. -irsch e3plains it in follo&ing &ords/2

A person co66its a cri6inal offence if his e3pected utilit* e3ceeds the level of utilit* he could derive fro6 alternative (legal activities. -e 6a* choose to be acri6inal# therefore# not because his basic 6otivation differs fro6 that of other persons# but because his options and the valuation of their benefits and costs differ.The cri6inal la& seeks to influence hu6an behaviour b* i6posing costs oncri6inal activities# thereb* providing the individual &ith an econo6ic incentive tochoose not to co66it a cri6inal offenceG that is# a deterrent incentive.

In cri6inal la&# as &e kno&# the right of action is taken over b* the state fro6 individualvicti6s. This 6oves the la& a&a* fro6 the econo6ics of the 6arket place# &here the principles of la&# as in the case of contract and tort# 6i6ic the response of individuals asrational 6a3i6isers. The econo6ic school does not see6 to provide an* satisfactor*e3planation for this. Another related uestion is about a substantial overlap bet&een tortand cri6inal la&. The uestion is &hether it is better# in the interest of efficienc*# to leave6ost of the acts currentl* categorised as cri6es# to the la& of tort. Posner thinks that6ost of the co66on la& cri6es are intentional torts &hich represent >a pure coercivetransfer either of &ealth or utilit* fro6 victi6 to the &rongdoer>. -is co66it6ent to

econo6ic anal*sis takes Posner to the e3tent of sa*ing that >the prevention of rape isessential to protect the 6arriage 6arket>.

No& that &e have e3a6ined the ar3ist approach and the econo6ic anal*sis of la&#the uestion arises &hether &e find an*thing co66on to both. The econo6ic anal*sisrecognises that a legal s*ste6 reflects the econo6ic s*ste6. or instance# an econo6ics*ste6# &hich is based on free 6arket principles &ith the ai6 of &ealth 6a3i6isation#&ill have a legal s*ste6 &hich reflects this. To this e3tent the econo6ic anal*sisrecognises the correctness of the ar3ist approach.

? Law and Econo'ics# /939= p 755.

1%




eated as ximisin$ iC to t"e ire= yet it i&orcea;0e

economic c rationa0e o& passion= exp0ains it(t is $enera00y a$reed t"at t"e economic ana0ysis can ;e a use&u0 too0 in exp0ainin$

t"e !orkin$ o& 0a!= especia00y some ;ranc"es o& 0a!. 2o!e:er= t"e pro;0em !it" t"e

economic sc"oo0 is t"at its proponents con:erted it into a strait<acket into !"ic"

e:ery aspect o& 0a! is &orced. (n t"e process= t"ey "a:e a0so i$nored many ot"er

&actors !"ic" s"ape 0a!. oreo:er= t"e t!o assumptions t"ey make= :iT= t"at !ea0t"

maximisation is t"e so0e socia0 :a0ue= and t"at indi:idua0s are a00 rationa0

maximisers= rest on s"aky and unpro:en &oundations. )"e edi&ice ;ui0t on t"ese

&oundations= t"ou$" 0ooks impressi:e= su&&ers &rom many imper&ections and

!eaknesses.

- 0e:e0 o& Ce to ;e a -o&ot"er and costs sin$ costs -conomic incenti:e.

;y t"e state economics o& f contract and )"e economic r t"is. ,not"er i and

crimina0 & e&&iciency= to "e 0a! o& tort= itentiona0 torts or uti0ity &rom c ana0ysis takes

ie is essentia0 to

id t"e economic 0in$ common to stem re&0ects t"e " is ;ased on &ree !i00 "a:e a 0e$a0

ana0ysis reco$nises



9/



/

hat is generall legal thought &h nu6ber of difft approaches is to t 8urisprudence. 9ir thought &e have e can identi sociological 8urist

C( Inuiries -ere the have shapi (ii Inuiries c societ*. (iiiInuiries v societ*.

(ivInuiries v validit* of

Socia0 ri$ins o&

Ihering# a +er6an 8 la&s and legal institu of >purpose> as the rrn in sociological factorsand as an instru6en e3ist for the individi

Law as a $eans to an j



Lecture 8

,pproac"es to La! (((- Socio0o$ica0 ,pproac"

#"at is $enera00y descri;ed as socio0o$ica0 <urisprudence is in&act a ;ody o& 0e$a0

t"ou$"t !"ic" s"ares some common e0ements= ;ut !"ic" re:ea0s a num;er o&

di&&erent approac"es. )"e ;est !ay to understand t"ese approac"es is to turn to t"e

!ritin$s o& t"e ma<or exponents o& socio0o$ica0 <urisprudence. Since a num;er o&

<urists are associated !it" t"is sc"oo0 o& t"ou$"t !e "a:e to ;e se0ecti:e.

#e can identi&y t"e &o00o!in$ types o& inFuiries in t"e !ritin$s o& socio0o$ica0

<urists-

PiQ (nFuiries !"ic" seek socia0 ori$ins o& 0a!s and 0e$a0 institutions. 2ere t"e&ocus is on t"e content o& ou$"ts= and t"e &actors t"at "a:e s"aped and are

s"apin$ t"em.

PiiQ(nFuiries concerned !it" t"e impact o& 0a!s on :arious aspects o& society.

PiiiQ(nFuiries !"ic" dea0 !it" t"e tasks !"ic" 0a! s"ou0d per&orm in society.

Pi:Q(nFuiries !"ic" attempt to &ind some socia0 criteria to test t"e :a0idity o&

0a!s.

Socia0 ri$ins o& La! and Le$a0 (nstitutions

("erin$= a @erman <urist= started !it" an ana0ysis o& t"e socia0 ori$ins o& 0a!s and

0e$a0 institutions. (n "is semina0 !ork=/ ("erin$ pro<ected t"e idea o& purpose as

t"e mainsprin$ o& 0a!s ;y statin$ t"at t"e ori$in o& 0a!s 0ay in socio0o$ica0 &actors.

("erin$ considered 0a! as a part o& "uman conduct inV as an instrument &or

ser:in$ t"e needs o& t"e society. La! does not aIst &or t"e indi:idua0 as mere0y to

satis&y "im= ;ut ser:es "is interests

/ Law as a $eans to an End# /97.




&ith the good of the societ* in vie&. Appl*ing this idea to the concept of propert*#Ihering sa*s that propert* is both a social and an individual institution. Li6itation of theindividual>s right to propert*# or even its e3propriation# is 8ustified in the interests of

societ*.Ihering recognised that la&s are onl* a t*pe of 6eans for achieving social control. -eclassified the factors found in societ* into/ (i e3tra legal conditions# those under thecontrol of natureG (ii 6i3ed legal conditions# those in &hich la&s do not pla* a pro6inent partG and (iii purel* legal conditions# those interests &hich are secured solel* b* legalregulation# The recognition of inter'dependence of all those factors is a distinguishingfeature of Ihering>s approach to la&. -e considered la&s as >the su6 of the conditions of social life in the &idest sense of the ter6# as secured b* the po&er of the state through the6eans of e3ternal co6pulsion>. Ihering e6phasised the need to reconcile co6petingsocial and individual interests. I -e &as not in favour of an* a priori theories of 8ustice#for the si6ple reason that a la& 6a* be bad toda* and good to6orro& if the social

background shifts in the 6eanti6e.

(mpact o& La!s on Society

Ehrlich# another i6portant 8urist of the sociological school# &as 6ainl* concerned &iththe i6pact of la&s on various aspects of societ*. According to hi6# la&s found in for6allegal sources# such as statutes and decided cases# give onl* an inadeuate picture of &hat reall* goes on in a co66unit*. The nor6s &hich reall* govern life are onl*i6perfectl* and partiall* reflected in the6. -e dre& a distinction bet&een nor6s of decision# &hich correspond to &hat is traditionall* understood to be la&s# and nor6s of conduct &hich govern life in societ*. There is often a considerable divergence bet&eenthe nor6s of decision# and the nor6s of conduct.

The inevitable gap bet&een the nor6s> of for6al la& and those of actual behaviour isthe basis of Ehrlich>s for6ulation of the >living la&> theor*# for &hich he is best kno&ntoda*. -e said that the living la& of ever* societ* lies outside the confines of for6allegal 6aterial# ie# in societ* itself. Cnl* a 6inute fraction of social life co6es before thecourts. The proble6s &hich co6e before the courts do not trul* represent social life# butrepresent onl* so6e for6 of breakdo&n of social life. The task of for6al la& 6akers#according to Ehrlich# is to keep for6al la& as nearl* abreast of the living la& as possible.

e find a striking si6ilarit* in the approach of both Ihering and Ehrlich to theuestion of la&>s role in social control. $oth considered the nor6s e6anating fro6 thestate and its organs as onl* one factor of social control

1"



!pproaches to Law III: Sociolo)ical !pproach

the concept of an individual t*# or even its

tchieving social (i e3tra legal àl conditions# i purel* legal Gal regulation# distinguishinghe su6 of the ecured b* the sion>. Ihering dual interests. Sr the si6ple if the social

&as 6ainl* *. According and decided co66unit*# ill* reflected i correspond lduct&hich bet&een the

se of actual theor*# for >er* societ* tself. Cnl* e6s &hich resent onl* & 6akers# the

living

id Ehrlich /he nor6s al control

along &ith other for6s of social control such as custo6s# 6oralit*# and the practices of groups and associations. A statute &hich is habituall* disregarded b* the co66unit*#according to Ehrlich# is not a part of the Ziving8a&. 9ince for6al la&s are onl* anad8unct of the living la&# 8urisprudence 6ust r9concerhed not onl* &ith for6al la&s# but also &ith the living la&. This involves an observational stud* of societ*.

)o66entators have dra&n attention to so6e of the dra&backs in Ehrlich>s theor* &ithits e6phasis on living la&. hile accepting the distinction bet&een for6al la& andliving la& as necessar* and i6portant# a uestion has been raised as to &hether both

should be called >la&>. Ehrlich deprived for6al la& of an* creative activit* and presented it as invariabl* trailing behind social develop6ents. This vie& also does notsee6 to be totall* correct. Another dra&back is that Ehrlich rightl* dre& a distinction bet&een nor6s of decision and nor6s of behaviour# but failed to bring out their 6utualinteractions. -e has not recognised the ever 'increasing part pla*ed b* the stateorganisation in the regulation of social life. inall*# Ehrlich>s concept of 8urisprudence isconsidered so &ide as to 6ake it un&ield* and a6orphous. -o&ever# it 6ust bead6itted that Ehrlich>s po&erful influence induced 8urists to abandon purel* abstract pre'occupations# and to concern the6selves &ith the proble6s and facts of social life.

)ask o& La!s in Society

The third t*pe of inuir*# viH# inuir* into the task of la&s in societ*# &as the 6ainconcern of ere6* $entha6# &ho is re6e6bered for his utilitarian theor*. According to$entha6# pro6otion of the greatest happiness of the greatest nu6ber# &as the function of la&s. This can be achieved b* bringing about the 6a3i6u6 happiness of each individual#for the happiness of each &ill result in the happiness of all. $entha6 also designed a6ethod to 6easure the happiness b* the ualit* of pleasure resulting fro6 an action. The



good or evil of an action should be 6easured b* the ualit* of pain or pleasure resultingfro6 it. The business of govern6ent &as to pro6ote the happiness of societ* b*furthering the en8o*6ent of pleasure# and affording securit* against pain.

Legislation should ai6 at providing subsistence# abundance# eualit* of opportunit*#and securit* for all. $entha6 said/ >The public good ought to be the ob8ect of the

legislator# general utilit* ought to be the foundation of his reasoning>. -e favoured private propert* because it &as essential to ensure the fulfil6ent of settled e3pectations. Thei6portance given to private enterprise and private initiative in $entha6>s &ritings clearl*sho&s his preference for econo6ic liberalis6.

1@




$entha6>s utilitarian theor*# &ith >pleasure'pain> criteria as a *ardstick to 6easurehappiness of individuals and ulti6atel* the ualit* of la&# has been criticised 6ainl* onthe ground that it is sub8ective. The proble6 of balancing individual interests &ith the

interest of the co66unit* did not receive adeuate attention fro6 $entha6. Inspite of these &eaknesses# U $entha6>s contribution to sociological 8urisprudence is significant because < he asserted that the task of la&'6aking is to achieve social ends and that la&sshould be 8udged b* their conseuences. $entha6 is considered to be the pioneer of functional 8urisprudence# &hich &e can definitel* bring under the sociological approach.9o6e people consider $entha6 as a precursor of legal positivis6 because he &asopposed to all doctrines of natural la&# and defined la& as >the N':'' I t#KK+&&0,

d a '$tt#r

WBfl <tuatt ,I= in his &ell' kno&n essa*#, added a ne& di6ension to\ $entha6>sutilitarianis6. ill agreed &ith $entha6 that >actions are right in proportion as the* tendto pro6ote happinessG &rong as the* tend to produce to reverse of happiness>. -o&ever#

he &as of the vie& that pleasures of the intellect# such as the en8o*6ent of art# poetr*#literature and 6usic# the pleasures of feelings and inspiration# as &ell as those of 6oralsenti6ents# 6ust be assigned a 6uch higher value than those of 6ere sensations. illdisagreed &ith $entha6 on the significance that should be attributed to the concept of 8ustice. hile $entha6 had subordinated 8ustice co6pletel* to the dictates of utilit*#ill &as not prepared to go to that e3tent. -e agreed that the standard of 8ustice should be grounded on utilit*# but < believed that the origin of the sense of 8ustice 6ust besought in t&o senti6ents other than utilit*# viH# the i6pulse of self defence# and thefeeling of s*6path*. In other &ords# the feeling of 8ustice is the urge to counter a &rong# placed on a generalised basis. The sense of 8ustice# according to ill# enco6passes allthose 6oral reuire6ents &hich are 6ost essential ( for the &ell'being of 6ankind# and

&hich hu6an beings# therefore# regard> as sacred and obligator*.A6ong the proponents of sociological 8urisprudence the na6e of Roscoe Pound is perhaps the 6ost fa6ous. -e has &ritten e3tensivel* on various aspects of legal philosoph*. An atte6pt has been 6ade here to capture so6e of the i6portant ideas of Roscoe Pound &hich are cruciall* relevant to our discussion.

9ociological 8urisprudence# according to Roscoe Pound# should ens6s. that thefra6ing# interpretation# and application of la&s should take account of social facts. or this# he suggested a functional stud* of the social effects\ of legal ad6inistration# andsocial investigations as preli6inaries to

7 n Li;erty= /819.

15



$pproaches to Law - ociolo#ical $pproach

f Roscoe i various capture relevant

i ensure account il effects aries to

legislation. hat is needed# for 6aking la&s 6ore effective# is a constant stud*# both ps*chological and philosophical# of the 8udicial 6ethod and a sociological stud* of legalhistor*. Pound sa& legal histor* as >the record of a continuall* &ider recognising andsatisf*ing of hu6an &orth or clai6s or desires through social control>.

In order to achieve the purpose of the legal order# Roscoe Pound suggested that there6ust be/

(i a recognition of certain interests# individual# public and socialG



(ii a definition of the li6its &ithin &hich such interests &ill be legall* recognised andgiven effect toG and

(iiithe securing of these interests &ithin the li6its as defined.

hen deter6ining the scope and sub8ect 6atter of the s*ste6# the follo&ing 6ust be

done/

(i preparation and classification of an inventor* of interestsG (ii selection of interests &hich should be legall* protectedG (iiide6arcation of the li6its of securing the interests so selectedG (ivconsideration of the 6eans &hereb* la&s 6ight secure the interests# &hen these

have been ackno&ledged and deli6itedG and(v evolution of the principles of valuation of interests.

ro6 this# Roscoe Pound developed his fa6ous theor* of la& as social eng8neering. Theai6 of social engineering is to build as efficient a structure of societ* as possible# &hich

reuires the satisfaction of the 6a3i6u6 &ants &ith least friction and &aste. It involvesthe balancing of co6peting interests. Pound defined interests as >clai6s or &ants or desires or e3pectations &hich 6en assert de facto, about &hich the la& 6ust doso6ething if organised societies are to endure>.

Pound considered the task of the 8urist ver* i6portant. To classif* and elaborate on theinterests protected b* la&# and thus to assist the courts is the task of the 8urist. Pound prepared an inventor* of interests# classif*ing the6 into individual# public# and socialinterests. e &ill no& e3a6ine the 6eaning and co6ponents of these three classes of interests.



(ndi:idua0 (nterests

The* are clai6s# de6ands or desires involved in# and looked at fro6 the standpoint of the

individual life. The* concern the follo&ing/

Personality- Personalit* includes interests in (i the ph*sical personG (ii freedo6 of &illG(iii honour and reputationG (iv privac*G and (v belief and opinion.

L93








Social interest in the conservation of social resources: Pound stressed on the principlethat &ant or de6and involved in civilised societ* should not lead to a situation &here thegoods of e3istence are &astedG that &here all hu6an &ants 6a* not be satisfied# in vie&

of infinite individual desires and li6ited natural 6eans of satisf*ing the6# the latter should be 6ade to go as far as possibleG and to that end# the acts or courses of conduct&hich tend needlessl* to i6pair these goods should be restrained. This includesconservation of natural and hu6an resources. Pound>s vie&s re6ind us of the present da*e6phasis on sustainable develop6ent. It is also appropriate to re6e6ber ahat6a+andhi>s observation that the nature has enough to satisf* hu6an needsG but not enoughto satisf* hu6an greed.

Social interest in )eneral pro)ress: The clai6s or de6ands involved in a civilisedsociet* are such that the develop6ent of hu6an po&er and control over nature for thesatisfaction of hu6an &ants 6oves for&ard. The de6and that social engineering be

increasingl* and continuousl* i6proved# and the self assertion of social groups to&ardshigher and 6ore co6plete develop6ent of hu6an po&ers are an indication of socialinterests in general progress. Pound divides these interests into three categories# viH/

(i Econo6ic progress# &hich includes freedo6 to use and sell propert*# free trade#free industr*# and encourage6ent of inventions b* grant of patents.

(ii Political progress# &hich includes free speech and free association.(iii )ultural progress# &hich includes free science# free letters# free art# pro6otion of

education# and learning and aesthetics.

Social interest in individual life: The clai6 or de6and involved in civilised societ* thateach individual be able to live a life# according to the standards of the societ*. It includes(i self assertionG (ii opportunit*G and (iii conditions of life.

After the detailed enu6eration of interests# Pound proceeds to e3a6ine the 6eans b*&hich the interests are secured. -e considered the device of legal po&er and theattribution of clai6s# duties# liberties# po&ers and i66unities as one of the 6osti6portant 6eans b* &hich the interests are secured. Then there is the re6edial6achiner* &hich consists of punish6ent# redress# and prevention in appropriate cases.

A ver* i6portant uestion that arises in relation to Pound>s social engineering theor* isas to ho& the interests are to be balanced. According to Pound# la& is reall* an atte6pt toreconcile# har6onise# or co6pro6ise overlapping or conflicting interests. This is doneeither >through securing the6 directl* and i66ediatel*# or through securing certainindividual interests... so as to give effect to the greatest nu6ber of interests# or to the

11



interests that &eigh 6ost in our civiliHation# &ith the least sacrifice of other interests.>Pound is of the vie& that interests should be &eighed on the sa6e plane. -o&ever# it is

not possible to balance individual interests against social interests. Therefore# individualinterests 6ust be transfor6ed to a social plane. or instance# although freedo6 of the person is an individual interest# &e can transfer this interest to a social plane as an interest

of the societ* that its 6e6bers should be free. The balancing process involves proble6sof >eli6inating friction and precluding &aste in hu6an en8o*6ent of the goods of e3istence.> This is &hat Pound calls the >social engineering> function of la&. In thisconte3t he 6akes a reference to the follo&ing classification of the institutions of la&#&hich pla* a role in the process of balancing.

(i Rules# &hich are precepts attaching definite conseuences to definite factualsituationsG

(ii Principles# &hich are authoritative starting points for legal reasoning in cases notcovered b* rulesG

(iii )onceptions# &hich are categories to &hich t*pes or classes of transactions# or

situations can be referred and on the basis of &hich a set of rules# principles or standards beco6es applicableG (iv Doctrines# &hich are the union of rules# principles and conceptions &ith regard to

particular situations or t*pes of cases in logicall* independent sche6es so thatreasoning 6a* proceed on the basis of the sche6e and its logical i6plicationsG

(v standards# &hich prescribe the li6its of per6issible conduct that is to be appliedaccording to the circu6stances of each case.

)lai6s for the recognition of ne& interests &ill e6erge as societ* advances and changes.or this purpose# Pound enu6erates a set of underl*ing values# &hich he calls >the 8ural postulates> of a civiliHed societ*. The citiHens of a civiliHed societ* are entitled to assu6ethe follo&ing postulates/

(i Cthers &ill co66it no intentional aggression upon the6G (ii The* 6a* control for beneficial purposes &hat the* have discovered# created#

and acuiredG (iii Pro6ises &ill be carried out in good faith and unreasonable and un8ust

enrich6ent &ill be prevented as far as possibleG (iv Persons engaged in a course of conduct &ill act &ith due care so as not to create

unreasonable risk of in8ur* to othersG (v )itiHens shall be entitled to ensure that the burdens incident to social life shall be

borne b* societ*G (viA standard hu6an life shall be assured to ever* citiHen.

!%%



!pproaches to Law III: Sociolo)ical !pproach /6G

The above 6entioned postulates &ill allo& legislators to con8<id<*the 6odification of values and the enunciation of ne& ones so as to<<fef6 &ith basic general values. :O

Roscoe Pound>s contribution to sociological 8urisprudence is s88<at that 6an* peoplecall hi6 the father of 6odern sociological 8urisprudenY That does not 6ean that his vie&shave been accepted &ithout an* criticis6. -is social engineering theor* has beencriticised as 6isleading. )ritics point out that it is not possible to &ork out in detail an* plan of a finished product in the case of a la& vis'a'vis the 6ethod of engineering. Thereason is that the societ* is constantl* developing and changing# and the pressures behindthe interests are changing too. Pound assu6ed that de facto clai6s pre'e3ist la&s.-o&ever# the truth is that so6e clai6s are subseuent to la&. Pound>s obsession &ithinterests has also been criticised because 6ore than interests# it is the *ardstick &ithreference to &hich the* are 6easured that 6atters. er* often the choice bet&eenco6peting ideals is a 6atter of decision# not of balancing. The &hole idea of balancing is

subordinate to the ideal that is in vie&. Interests need be considered as and &hen the*arise in disputes. 9o &hen &e look at it fro6 the realist>s point of vie& (&hich &e &illdiscuss in our ne3t lecture &hat is i6portant is the &a* in &hich the* are vie&ed andevaluated b* a particular 8udge. )o66entators have also pointed out that Pound>scatalogue of interests is onl* the product of personal opinion. I6portant uestions &hichconfront a legal s*ste6# such as ho& to balance the interests of 6inorities &hich areirreconcilable &ith those of the 6a8orit*# do not find an ans&er in Pound>s theor*. inall*#it 6a* be said that Pound devoted too 6uch attention to interests# but too little attentionto ideals of guidance# &hich provide the criteria for evaluating interests.

v..

+riteria to )est 'a0idity o& La!s

Let us no& turn to the fourth t*pe of inuir* &hich atte6pts to find so6ecriteria to test the validit* of la&s. e &ill do this &ith reference to the&ritings of Duguit# &ho 6ade a bold atte6pt to develop a ne& approach totraditional concept of state# sovereignt*# and la&s fro6 the perspective of societ*. Duguit is toda* 6ainl* kno&n for his >Principle of 9ocial9olidarit*>. According to hi6# social interdependence is an inescapable factof hu6an e3istence. All organisations should be directed to&ards s6oother

and fuller co'operation bet&een people.Duguit advanced the notion that all institutions are to be 8udged accordingto ho& the* contribute to&ards social solidarit*. The state can

/5/



/

Lectures in Jurisprudence ? =

clai6 no special position or privilege. +oing one step further# Duguit 6aintained that&hen the state ceases to further the cause of social solidarit*# there is a dut* to revoltagainst it.

The doctrine of sovereignt*# according to Duguit# has beco6e 6eaningless. It fails toe3plain the kind of authorit* that governors no& &ield over the governed. A better &a*of looking at it is that all po&ers and organisations are sub8ect to the test of socialsolidarit*. Their e3istence is functional# and does not e3tend be*ond the function the* perfor6 in societ*. T&o i6portant i6plications follo& fro6 Duguit>s state6ents# viH# (ithe state is not indispensableG and (ii the state is useful# but its po&er is li6ited b* socialsolidarit*. Duguit also held that social solidarit* is the criterion of validit* of la&s# andthat public opinion is the e3pression of social solidarit*. -o&ever# he does not provide

satisfactor* ans&ers to uestions as to &hat is public opinion# and b* &hat 6eans is itdiscoverable.There are 6an* unconventional ele6ents in Duguit>s theor* of la&. -e denied

personalit* to the state and public corporations# and also re8ected the distinction bet&een public and private la&# using the social solidarit* principle. hat 6a* appear to be ver*startling is that Duguit denied the e3istence of rights. -e said that the focal point of la&lies in dut*# &hich is the 6eans of guaranteeing that ever*one fulfils his part in thefurtherance of social solidarit*. In his &ords# >The onl* right an* 6an can possess is theright ZtoK al&a*s do his dut*.> Duguit e3pressed his disapproval of natural la& b* banishing all ethical ele6ents fro6 la&.

Duguit>s theor* of social solidarit* has been interpreted b* different people in different&a*s to suit their convenience. or instance# the 9oviet 8urists used this theor* as a 8ustification to e3clude individual rights and separation of po&ers. Duguit opposed the personification of the state because it could lead to totalitarianis6. It 6a* be an iron* of fate that this theor* &as used b* NaHi 8urists to strengthen the authorit* of the state.Duguit>s e6phasis on the 6ini6isation of conflict &ithin societ* &as used as a 8ustification for the suppression of trade unions and strikes.

The sociological approach is a s*nthesis bet&een natural and positive la& theories.9ociological 8urists are concerned &ith la&s in their social conte3t. The* inuire into thecircu6stances in &hich la&s arise# and are differentiated fro6 6oralit* and the like.Their field of inuir* also e3tends to uestions as to ho& the ad6inistration of la&s isrelated to 8ustice# and &hat influences are 6utuall* e3erted b* la&s and other t*pes of social pheno6enon and changes in fhe6. The greatest practical contribution of sociological approaches to la& has been its thrust on field&ork in e3a6ining theinteraction bet&een la& and the social 6ilieu.

!%,




Socio0o$ica0 Jurisprudence and Socio0o$y o& La!

It is also necessar*# before &e end this lecture# to dra& a line of distinction bet&een

sociological 8urisprudence and sociolog* of la&# though this distinction has beco6e blurred# and is not ver* significant no&. e can understand the nature and scope of sociological 8urisprudence fro6 the follo&ing definition of ulius 9tone# >9ociological 8urisprudence# and an* stud* &hich seeks to bring social science kno&ledge to legal proble6s# address the6selves to the influence of social# econo6ic# ps*chological andother non'legal factors on the process in the concrete content of legal propositions.>

9ociolog* of la&# on the other hand# atte6pts to create the science of social life as a&hole# and to cover a great part of general sociolog* and political science. The e6phasisis on societ*# and la& is studied as a 6ere 6anifestation. +urvitch# in his pioneering

&ork ; defines the sociolog* of la& as follo&s/

The sociolog* of la& is that part of sociolog* &hich studies the full social realit*of la&# beginning &ith its tangible and e3ternall* observable e3pressions# ineffective collective behaviours and in the 6aterial basis. 9ociolog* of la&interprets these behaviours and 6aterial 6anifestations of la& according to theinternal 6eanings &hich# &hile inspiring and penetrating the6# are at the sa6eti6e in part transfor6ed b* the6.

+urvitch also e3plains that the task of sociolog* of la&# &hich is also called legalsociolog*# is to give the 8urist an ob8ective description of the social realit* of la& valid ina given social 6ilieu. The philosoph* of la& gives hi6 a criterion of 8ural values# aidingthe6 in their atte6pts to reach concrete goals. 9ociolog* of la& 6a* be co6pared to

different branches of sociolog*# such as industrial# political# and educational sociolog*.The 6ain interest of a legal sociologist is to anal*se the societ*# and to fit legalad6inistration as a &hole into the concept of societ*.

9u66ing up his discussion on sociolog* of la&# Roger )otterrell# a 6odern 8urist#

dra&s our attention to the follo&ing features of the sociolog* of la&/"

(i 9ociolog* of la& reveals that la& does not provide the autono6ous structure of understanding the coherent s*ste6 of values# or the securel* independentdiscourse of legalit* that is often associated &ith it.

(ii 9ociolog* of la& also reveals the contradictions and li6itations of

4 Sociolo)% of Law# /93. The Sociolo)% of Law: !n Introduction# second edn= /997= pp 4/7>4/4.

!%;




the 6ediation of po&er through la&. It reveals the a6bivalent relationships bet&een la& as govern6ental instru6ent# and la& as a for6 of kno&ledge or reason &hose integrit* supports the legiti6ating ideal of the rule of la&.

9ociolog* of la&>s 6ost effective strateg* &ill be its per6anent search for broadened perspectives. This involves the effort to portra* and interpret the localiHed# *et ver* po&erful kno&ledge and practices of the professional and political &orld of state la&# in&a*s that enable the6 to be confronted b* understandings of po&er# 6oralit*# and socialorder arising in the e3periences of ordinar* citiHens in 6an* situations and conditions of life.

The present trend is to use the ter6 >socio'legal studies> &hich e6braces bothsociological 8urisprudence and sociolog* of la&. 9ocio'legal studies have their e6phasison the i6portance of placing la& in its social conte3t# of using social science research6ethods# and of recognising that 6an* traditional 8urisprudential uestions are e6pirical

in nature# and not purel* conceptual. The gro&ing value of e6pirical research on legal proble6s all over the &orld is a6ple testi6on* to the influence of sociological approachto la&.

/5





Lecture 9

)"eories o& La! (- Natura0 La!

Let us begin our discussion on natural la& theor* &ith an illustration. 9uppose *our la&school is selecting a tea6 to represent the institution at a national 6oot court co6petition.

hile *ou are preparing to participate in the co6petition# the director of the la& schoolannounces that onl* the &ards of advocates are eligible to enter the co6petition. -e

8ustifies this decision on the ground that he &ants to li6it the nu6ber of participants# andthe children of advocates &ill have better access to legal 6aterials and &ill get better

guidance and# therefore# the* can perfor6 &ell. -e is also of the vie& that he isco6petent to 6ake an* rule for conducting the co6petition. The uestion &hich arises is

that if *ou are not the &ard of a la&*er# ho& &ill *ou feel about this ruleF ôu 6a* agreethat the director is co6petent to 6ake rules to regulate the co6petition. ôu 6a* alsoagree that there is so6e truth in his 8ustification for the rule. êt *ou 6a* ftel that there is

so6ething unfair or un8ust in the rule# &hich e3cludes *ou fro6 the co6petition 6erel* because *ou are not the &ard of a la&*er. our feeling that such a rule is un8ust is

actuall* the recognition of the principle that the la& 6ust possess so6ething be*ondvalidit*. The content of la& 6ust satisf* a higher test of fairness. The belief in a higher standard evaluate ordinar* la& is the basis of the natural la& theor*. Natural la& theor*

began &ith the philosophers of ancient +reece &ho itgarded la& as being closel* relatedto 8ustice and ethics. Nature is conceived as a relation or an order of things. an as a part

of nature is endo&ed &ith abilit* of active reasoningG and it distinguishes hi6 fro6 allother creatures of nature. La&# according to the +reek philosophers# consists o& rules in

accordance &ith reason and nature. an>s po&er of reason enables 0ira to suppressinstinct# and act against its dictates. It inspires a sense of podand evil. It induces conduct#

&hich is consistent &ith good# and torbids evil conduct. The criteria# &hich distinguishgood fro6 evil# right *u!t fro6 &rong conduct# are the instinctive la&s of nature.

9ocrates



Lectures in Jurisprudence 1

declared such la&s to be i66utable principles. Plato 6ade a further refine6ent b*stating that the goodness of la&s 6ust be 6easured b* thct coittbutori to socva7at6on*# because a 6d>&>dua interest 6ustbi sub8ect to social &elfare. Aristotle

na6ed a la& inspired b* reason as natursi la&# and declared that natural la& is inherentin the nature of 6an. Natural la& theor*# in its original for6ulation# believes in the e3istet7 of ob8ective

6oral principles &hich depend on the essential nature of tit universe# and &hich can bediscovered b* natural reason. Crdinar* hu6s la& is onl* trul* la& insofar as it confor6sto these principles. fEre principles of 8ustice and 6oralit* constitute the natural la&#&hich is valid# as the rules for hu6an conduct are logicall* connected &ith the truriiconcerning hu6an nature. This connection enables us to ascertain the principles of natural la& b* reason and co66on sense. Natural la& this differs fro6 the rules of ordinar* hu6an la& (positive la&# &hich can It found onl* b* reference to legalsources such as )onstitution# legislation# precedent etc. A uestion 6a* no& arise in

*our 6ind on the status of positive la&# &hich 6a* be contrar* to natural la&. Naturalla& theor* does not accept hu6an la& at variance &ith natural la& as la&# but considerit 6erel* as an abuse or violation of la&.

Natural la& theor* has passed through several stages and versions. -it Ro6ansdeveloped the conception of natural la& as universal la&. The8 accepted the superiorit* of natural la& H&us naturale as higher la&. )icero said# >It is not allo&able to alter this la&#nor deviate fro6 it# nor can it Ik abrogated# nor can &e be released fro6 this la& either b* the senate or the people>. Inspired b* natural la&# Ro6ans tried to develop a codecalled Jus )entiu'* The Jus )entiu' contained ele6ents of a refined legal s*ste6# andsubseuentl* beca6e the foundation of 6an* legal s*ste6s in the &orld. J

It is curious that the influence of natural la& did not result in tit abolition of slaver*#&hich is clearl* a negation of the principles of eualit* in natural la&. The principles of natural la& &ere distorted to 8ustif* sud practices. -o&ever# the in8ustices inherent insuch practices &ere pro8ected b* so6e proponents of natural la&# and their influence&as instru6ental in enlarging opportunities of slaves to regain freedo6.

In the 6edieval period &e find the )hristian church# &ith the Pope as its head#asserting its po&er and clai6ing supre6ac* over the political heads of state. The churchasserted that the )hristian teaching &as the e6bodi6ent of the supre6e la&. 9tAugustine# &ho &as a leading e3ponent of this vie&# &ent to the e3tent of stating that7ing'6ade lai 6a* be disregarded# if it &as contrar* to a la& of +od. The church couldinterfere &ith# and override the state. It i6plied that the ulti6ate interpreter

!%5



1heories ofLaw - atural Law

ther /heir it be tural

tence .f the i6an These valid# truths n the v thus /an be lation# itus of theor* nsiders

us. The v* The* )icero an it be re or b* le called s*ste6# s in the

It in the eualit* tif* such pro8ected ru6ental

/ Pope as political I &as the i leading 6ade la& rch could nterpreter

i

i

I

of the la& &as the church# and not the e6peror. This naturall* led to a struggle for po&er bet&een the church and the state# and both invoked natural la& to support their assertions. hen &e trace the histor* of natural la&# the striking feature of this period is



that the superiorit* of natural la& &as accepted both b* the church and the state.Cur discussion of natural la& &ill re6ain inco6plete if &e do not consider the

contribution of 9t Tho6as Auinas. -e is considered to be the proponent of thescholastic theor* of la&. 9t Tho6as Auinas defined la& as >an ordinance of reason for the co66on good 6ade b* -i6 &ho has the care of the co66unit* and pro6ulgated>.

According to hi6# divine la& is supre6e# but the &hole of it is not accessible to 6en.9uch part of it as is intelligible to 6en reveals itself through eternal la&. Natural la& is a part of divine la&# and reveals itself in natural reason. It is fro6 the principles of t7eternal la& as revealedirr)rarura) 0a! that all hu6an la& derives. Le7 divina, the positive la& enacted b* the +od for the 6ankind in the scripture# stands in a si6ilar relation to hu6an la& as eternal la& does to natural la&. All la&s enacted b* a hu6anauthorit* (positive la& 6ust be &ithin these li6its. Positive la& is valid onl* so far as itis co6patible &ith natural la&# and thus &ith eternal la&.

The theor* of natural la& developed b* 9t Tho6as Auinas differs &ith its earlier version b* 9t Augustine in t&o i6portant respects. The state# according to 9t Tho6asAuinas# is a natural institution born fro6 ele6entar* social needs of 6en# not an evil as

9t Augustine had thought. This vie& see6s to be influenced b* Aristotle. 9t Tho6asAuinas also recognises hu6an la&s as variable according to ti6e and circu6stances.Their purpose is to be useful to 6an# to further the co66on &ealth# &ithout at the sa6eti6e being a part of divine and natural la&. The state ias a legiti6ate function andsphere# to regulate social life 8ustl*# ie# for the co66on good &ithin the li6its of theauthorit* of the la&'giver. 9tate la&s 6ust not be t*rannical. hen a la& is un8ust either in respect of the end or the author or the for6# such la& is un8ust and# therefore# acontradiction to natural and divine la&.

Another significant difference in the vie&s of the earlier theorists 9t Augustine and 9tTho6as Auinas relates to the right of propert*. The position of 9t Tho6as in this regard

is



bet&een the earlier unconditional re8ection of the right# and the later elevation of theright as a natural right b* Locke and others. The philosophical basis of right of propert*#according to 9t Tho6as Auinas# is that the use of things 6ust not be for one>s o&n benefit# but for the co66on good. -e considers the right to the acuisition of propert*as one of the 6atters left b* natural la& to the state as a proper agenc* for the regulation

of social life. -o&ever# it is i6portant to re6e6ber

/53



that 9t Tho6as did not consider the right of private propert* as a principle of natural la&.In the subseuent refor6ulation of scholastic philosoph* b* the )atholic )hurch in thelater half of the nineteenth centur*# the right of private propert* has been included a6ongthe natural# +od'given rights.

The influence of the natural la& theor* is evident in the origin and develop6ent of

international la&. -ugo +rotius# &ho is often called the father of international la&#asserted that 6an al&a*s desired to live in peacefiil societ* &ith opportunities to displa*his intellect to his fello&6en# and to be appreciated b* the6. This desire for societ* and peace co6pels hi6 to observe certain rules of conduct inspired b* intelligent reason#&hich constitutes the rudi6ents of natural la&. The 6ost i6portant a6ong such rules of conduct are the obligation to fulfill pro6ises# the respect for other>s propert*# the dut* torestore gain 6ade at another>s e3pense# and the liabilit* to repair the da6age caused b*one>s fault. These rules are co66on to 6ankind and are applied to rulers also as a part of 6ankind. The rulers also 6ust have a societ*— a societ* of nations. This is ho& +rotius paved the &a* for the s*ste6 of international la&. -e said that the la& of nations isoriginall* not different fro6 the la& of nature applied to nations.

ried6ann e3presses his hope that a &orld co66unit* &ill evolve on the basis of the principles# &hich +rotius called natural la&# and 6ode6 8urists called general principlesof la&. -e identifies four such principles. The* are/

(i %lausula re/us sic stanti/us,ie# agree6ents 6ust accord &ith r8E8l affairs. This isa principle recognised b* 6ost legal s*ste6s in the &orld# and is also recognisedin international relations.

(ii The principle of estoppel under &hich a person cannot den* &hat he hasi6pressed on others b* his o&n conduct. This principle applies to individuals as&ell as states. In the present era of globalisation and liberalisation# foreign directinvest6ent takes place on the basis of pro6ises given b* various states. The principle of estoppel beco6es relevant in resolving disputes.

(iii The principle of un8ust enrich6ent &hich insists that no one should enrichhi6self at the e3pense of another &ithout la&ful cause.

(iv The principle of abuse of right &hich e3presses a social dut* in the e3ercise of private right. This principle 8ustifies restrictions on the e3ercise of a right or evenits nullification in the larger interest of societ*.

The develop6ents during the seventeenth and eighteenth centuries brought into pro6inence the secular di6ension of natural la&. The principles of natural la& &ere usedin the struggle to liberate people fro6 political

/58



Theories of Law I: atural Law

t*rann*. The influence of natural la& in a greater or lesser degree could be seen in theEnglish Revolution of !5::# the A6erican Declaration of Independence of !225# and therench Revolution of !2:1. Political absolutis6 looked for 8ustifications of its clai6 to

unli6ited authorit* over the people. The idea that legal authorit* co6es fro6 the peoplegained increasing acceptance in societ*. Del ecchio said# >La& is an essential foundationfor the life of 6an in societ* and it is based on the needs of 6an as a reasonable beingand not on the arbitrar* &hi6 of a ruler.>

The 6a8or political thinkers of this period tried to interpret natural la& in their o&n&a*. 9o6e of the6 &ent to the e3tent of den*ing natural la& altogether. Cne of the 6ostinfluential theories of this period &as that of social contract. This theor* stated that fro6a state of nature in &hich the* have no la&# no order and no govern6ent# 6en have passed to a state of societ* b* 6eans of a contract in &hich the* undertook to respecteach other# and live in peace. Later# a second part is added to a social contract b* &hichthe people undertook to obe* the govern6ent# &hich the* the6selves have chosen. All

protagonists of social contract theor* find the source of political po&er in the people andare unani6ousl* opposed to the deduction of political authorit* fro6 above# &hether fro6 divine la&# or the grace of +od.

e &ill briefl* e3a6ine ho& the theories of the leading thinkers of that period treatednatural la&. -obbes shifted the e6phasis fro6 natural la& as an ob8ective order to naturalright as a sociological clai6 based on the nature of the 6an. Natural la& is not a set of ethical precepts# but la&s of hu6an conduct based on observation and appreciation of hu6an nature. The chief principle of natural la& is the natural right of self'preservation.-obbes e6phaticall* re8ected an* contractual or uasi'contractual right b* &hichsub8ects could de6and the fulfill6ent of certain obligations b* the ruler. There is onl*one condition attached to the absolute po&er of the ruler# viH# that he can govern and keeporder. ro6 this# -obbes deduced the follo&ing propositions/

(i Ever* la& is dependent upon sanctions and is co66anded and enforced b* asovereign.

(ii There is no societ* as distinct fro6 the state. All social and legal authorit* isconcentrated in the sovereign.

(iii The church is definitel* and unconditionall* subordinated to the state. (ivThe sovereign is in no &a* instituted and legiti6ated b* superior sanction#

&hether divine right or natural la&. It is purel* and solel* a utilitarian creation of individuals &ho institute hi6 in order to prevent the6 fro6 destro*ing each other.

!%1







ft/


hile -obbes conceived natural la& as shorn of all po&er# Locke# his conte6porar*#6ade natural la& superior and i66utable b* positive la&. Locke &as a great

individualist# and he placed individual at the centre and invested hi6 &ith inalienablenatural rights# including a right of private propert*. -e used the notion of social contract#

unlike -obbes# to 8ustif* govern6ent b* 6a8orit* and to sho& that govern6ents heldtheir po&er in trust# &ith the dut* to preserve the individual rights &hose protection theindividuals have entrusted to the6. As long as it is faithful to this pledge# a govern6ent

cannot be deprived of its po&er. Rousseau also shared 6ost of these vie&s. -econsidered freedo6 and eualit* as natural rights# and believed that the state derives its

e3istence and 8ustification solel* fro6 f the guarantee of freedo6 and eualit*.ontesuieu# another great thinker & of this period# accepted that there is a standard of

absolute 8ustice prior to ( positive la&. -e added that la&# although vaguel* based onso6e principles of natural la&# 6ust be influenced b*



environ6ent and conditions# such as cli6ate# soil# religion# custo6s# conventions etc.-u6e destro*ed the theoretical basis of natural la&. According to hi6# reason in itself

dictates no &a* of acting. It can onl* sho& &hat 6eans &ill lead to a desired end. Theguides of hu6an action itself are certain values inspired b* hu6an 6otives and propensities to actions. Reason is and ought onl* to be the slave of the passions# and can

never pretend to an* other office than to serve and obe* the6. It is 6erel* a 6atter of conventions based on utilit*# if hu6an actions follo&ed certain patterns. -u6e &asgreatl* influenced b* $entha6 &ho regarded natural la& as nothing# but a phrase andnatural rights as >nonsense on stilts>. According to hi6# natural la& reasoning resultedfro6 confusing scientific la&s &ith 6oral and legal U la&s. 9cientific la& describes &hatgenerall* has occurredG 6oral or legal la&s prescribe ho& 6en should behaveF

Pursuant to the influence of these theories and also the acceptance of parlia6entar*sovereignt*# natural la& suffered a setback in the nineteenth centur* England. -o&ever#the influence of natural la& in the develop6ent of English la& cannot be overlooked.The idea of rule of la& &ith its e6phasis on supre6ac* of la&# the principles of euit*# 8ustice and good conscience# natural 8ustice etc# are inspired b* natural la&. Natural la&

also provided a corrective to reduce the severit* and rigidit* of the general la&. Theinfluence of natural la& in the process of la&'6aking in all )o66on La& countries#especiall* in providing guiding principles in la&'6aking such as reasonableness# isindeed re6arkable.

The decline of natural la& in the nineteenth centur* &as also due to the gro&inginfluence of the positivist theor*# &hich considered state la& alone as la&. The positivist 6ove6ent relegated natural la& to the real6 of 6orals

!!% (







1heories of Law - atural Law

and religion. e &ill discuss the various versions of legal positivis6 in the ne3t lecture.

(n&0uence o& Natura0 La!

Let us no& briefl* e3a6ine the influence of natural la& on different legal s*ste6s.

United States o& ,merica

The influence of natural la& is clearl* visible in the )onstitution of Q9A# and thedevelop6ent of 8udicial revie& of an* legislative and ad6inistrative act in the light ofconstitutionall* entrenched rights. The )onstitution of Q9A has been influenced b* thetheor* of inalienable natural rights. The 9upre6e )ourt>s interpretation of the due process

clause in the )onstitution strengthens the belief in higher principles of la&# &hich cannot be taken a&a* b* positive la&. The 9upre6e )ourt of Q9A also elevated private propert*to a funda6ental right. 9tate interference &ith the right &as 8ustified b* the doctrine ofe6inent do6ain# &hich reuires that such interference 6ust be onl* for public purposes#and for adeuate co6pensation. The court restricted the state>s po&er to i6pose ta3es for public purposes# and assu6ed authorit* to deter6ine &hat public purposes &ere. Ananal*sis of A6erican 9upre6e )ourt>s decisions over a period of 6ore than t&o centuriesalso illustrates ho& changing ideas# pressures and personalities 6a* influence the scale of legal values# &hile the basic constitutional provisions re6ain unchanged. In the *ear!:5%# the 9upre6e )ourt upheld the validit* of racial segregation in schools in Plessy v Fur#uson. -o&ever# in !1@" under the influence of a totall* changed social environ6ent#the 9upre6e )ourt had to declare segregation as a violation of eualit*# and hence

unconstitutional in rown v oard of Aducation.B The court>s faith in natural la&re6ained unchanged# but its attitude vacillated fro6 do&n right conde6nation to&holehearted support of social and economic le#islation. 1he continuin# conflicts ofvalues and interests in social life sho& that the guarantees of funda6ental rights in a)onstitution cannot eli6inate the6. )onflicting principles like private enterprise andsocial control# eualit* and discri6ination# tolerance and intolerance &ill continue tofight for legal recognition. It is interesting to note that in such FiO3s. both sides invokenatural la& principles to support their position.

!!5; Q9 @;2 (!:15.

,;"2 Q9 ":; (!1@".

Ill




e also find that &here the fight is in ter6s of funda6ental rightse6bodied in a &ritten )onstitution as in the Q9A# the appeal tonatural la& theor* is 6ore direct and po&erful than in a s*ste6

&here parlia6entar* legislation is supre6e as in England.

En$0and

The legislative supre6ac* of Parlia6ent is one of the basic principles of constitutional la& in England. This principle rules outan* 8udicial revie& of an Act of Parlia6ent. As far as 6atterscovered b* statutes are concerned# the courts are bound to acceptthe6 as such# and cannot invoke an* higher principles of naturalla& or )onstitution as of overriding i6portance. This does not

6ean that the principles of natural la& are totall* irrelevant inEngland. In 6atters not covered b* a statute# English courts have

relied on natural la&. or instance# in omersell2s case#; Lordansfield declared slaver* to be >an institution so odious tonatural la& that the English courts &ould not countenance it>. Natural la& is also invoked b* English courts to test thereasonableness of a custo6# to test the acceptabilit* of a foreignla&# and to control ad6inistrative and uasi'8udicial functions of public authorities b* &rits of certiorari and prohibition. The t&o principles of natural 8ustice viH# (i no person shall be a 8udge inhis o&n causeG and (ii no one shall be conde6ned &ithout being

given an opportunit* of being heard# are also the contributions of natural la&. The doctrines of uasi' contract and un8ust enrich6entalso o&e their origin to principles of natural la&.

The enact6ent of the -u6an Rights Act in the *ear !11: is asignificant develop6ent. It e6po&ers the courts to deter6ine&hether the provisions of an* Act of Parlia6ent are co6patible&ith the provisions of the -u6an Rights Act# and also to 6ake adeclaration of inco6patibilit* if the provisions are foundinco6patible. This is recognition of so6e higher principles of la&&ith reference to &hich the ordinar* la& 6ust be evaluated. Natural la& &ill have a 6ore influential role to pla* in England

because of the dilution of the doctrine of parlia6entar*sovereignt*# and increasing i6portance of 8udicial revie&.

(ndia

The influence of natural la& on Indian s*ste6 can be anal*sed



&ith reference to the ancient period# the $ritish period# and the post'independence period.

(&

4 P/337Q 75St) /.

!!,

i




e find the essence of natural la& in the ancient Indian concept of 4har'a(righteousness. 4har'a &as neither a cult nor a code in the &estern sense# but the rightla& of life and true ideal of living and social order. It &as not static# rigid and absolute#

but relative# d*na6ic and evolving# al&a*s changing according to the needs anddevelop6ent of societ*. All good habits like speaking the truth# self'restraint# benevolence to neighbours# charit*# kindness etc# are considered virtues. All 6alpracticeslike adulter*# seduction# sorcer*# &itchcraft and ga6bling are considered as evils anddenounced. The panishads e6phasise kno&ledge as an essential 6eans of self'realisation# and insist on right living. The la& of 4har'a in ancient India 6ade a boldatte6pt of building an organised social life &herein each individual realised his goals&ithin the para6eters of social nor6s and 6oralit*. It signified the 6oral la&# >the la& on&hich our life is founded# the eternal la& of right and reason# that &hich 6akes for righteousness both &ithin us and &ithout>. Thus# &e can see that the idea of la& as thedictate of reason found in &estern legal thought &as present in Indian philosophical# and

legal tradition centuries ago.The concept of 4har'a &as enlarged through various interpretations. It ca6e to 6ean>6orall* proper# ethical dut*# religious virtue# ideal# absolute truth# universal la& or principle# divine 8ustice# conventional code of custo6s and tradition>. $ahabharat describes 4har'a as being ordained for the advance6ent and gro&th of all creatures# for restricting creatures fro6 in8uring one another# and to uphold all creatures. It is not asi6ple and unitar* concept# but 6anifold and co6ple3 and is concerned &ith the behaviour of the state and its sub8ects# castes# fa6ilies# groups and ordering of life#charit*# e3pedienc*# salvation# and duties of hu6an beings in general. In short# it infusedan ideal of higher la& b* &hich the ruler and the ruled &ere euall* bound# and it &as the6odern indicator to distinguish bet&een good and evil# right and &rong# 8ust and un8ust.The belief in the inalienable# i66utable and everlasting natural la& is seen in the conceptof Sanatan 4har'a* It 6a* appear to be parado3ical that along &ith these high ideals of 4har'a# 6an* social practices# &hich are a negation of hu6an dignit*# like the castes*ste6# untouchabilit*# sati pratha etc# also prevailed in India.

The social refor6ers and leaders of Indian national 6ove6ent also dre& inspirationfro6 the values and ideals of ancient philosoph*. The e3istence of a higher la& above the positive la& of the state &as recognised. ahat6a +andhi 8ustified disobedience to thela& i6posed b* colonial rulers >not for &ant of respect for la&ful authorit* but inobedience of higher la& of our being—the voice of conscience>.

The usli6 rulers in India introduced Kuaranic teachings# but the* &ere confined onl*to the usli6 co66unit*. The -indu concept of

!!;



(


Dharma re6ained uninfluenced and untouched. -o&ever# the advent of $ritish rule and

the reception of English la& in India had a great i6pact on Indian legal s*ste6. The personal la&s of -indus and usli6s &ere left untouched# but in other fields of la& principles of English la& and 8urisprudence &ere introduced through codification of la&.This resulted 8 in greater i6portance to positive la&# but natural la& principles survivedthrough the application of the &estern principles of 8ustice# euit* and good conscience#&hich guided the 8udges.

The attain6ent of independence and subseuent adoption of the )onstitution gave anopportunit* to the national leaders to incorporate their cherished ideals in the basic la&.The )onstitution guaranteed unda6ental Rights and declared that an* la&# &hichcontravened a unda6ental Right# &as invalid. The larger polic* goals &ere enu6eratedunder the Directive Principles of 9tate Polic* in Pt I of the )onstitution. The influence

of natural la& on the )onstitution'6akers is uite evident fro6 the fact that the* have placed the natural rights and funda6ental freedo6s be*ond the reach of ordinar*legislation. e see the continuing influence of natural la& on the 8udiciar* in theinterpretation of the unda6ental Rights &ith reference to certain higher principles andvalues. e can illustrate this &ith reference to art ,! of the )onstitution of India. Article,! sa*s# >No person shall be deprived of his life or personal libert*# e3cept according to procedure established b* la&.> The &ord >life> in this article &as given an enlarged6eaning through d*na6ic 8udicial interpretation. It &as held to 6ean a right to live &ithhu6an dignit* &hich included so 6an* conco6itant rights such as the right to food# rightto &ater# right to clean environ6ent# right to shelter# right to health# and right toeducation. The phrase >procedure established b* la&># &hich &as interpreted as an*

procedure established b* an Act of the legislature during the initial *ears of the)onstitution# &as later interpreted to 6ean reasonable and fair procedure. The 8udicialcreativit*# &hich &e find in the interpretation of art ,! is undoubtedl* influenced andinspired b* natural la&.

The 9upre6e )ourt has also i6posed li6itations on the po&er of Parlia6ent to a6endthe )onstitution. The 6akers of the )onstitution have not e3pressl* provided an* suchli6itation in the )onstitution. -o&ever# b* la*ing do&n that the basic structure of the)onstitution cannot be a6ended or abridged in e3ercise of the a6ending po&er# the9upre6e )ourt has proclai6ed that there are so6e i66utable values and principlesunderl*ing the )onstitution. This is nothing# but a declaration of faith in natural la&#&hich 6ust re6ain superior to positive la&.

!!"




Re:i:a0 o& Natura0 La!

of the rporate anteed ened a lerated ution. vident lental nuing i& the dues# ndia. Sert*# thisicial nit* Sod# ilth# lich ure /an rhe ral

of Sn ti. ne s

U Legal positivis6 and anal*tical 8urisprudence# &hich posed a serious challenge tonatural la&# failed to offer satisfactor* solutions to the co6ple3 proble6s confrontinglegal s*ste6s across the &orld in the t&entieth centur*.

# The certaint* and stabilit* of the la&# &hich &ere pro8ected as the greatest virtues b*legal positivists and the logical 6ethods popularised b* anal*tical 8urisprudence# &erefound to be inadeuate. Decline in the social and econo6ic stabilit*# e3pansion ingovern6ent activit*# gro&ing social ineualities etc# again led to a search for an idealof 8ustice be*ond positive la&. The brutal atrocities in +er6an* perpetrated under NaHila&s also led to a rethinking about natural la&. Radbruch# a +er6an 8urist# suggestedthat an* la&# &hich violated ele6entar* 8ustice to an intolerable e3tent# &as a la&lessla&# and had no clai6 to obedience. Accepting this vie&# the 9upre6e )ourt of est+er6an* dis6issed the defence of co6pulsion b* NaHi la&s in the trial of NaHicri6inals(8The court observed that la&s &hich altogether den* the value# and dignit*of hu6an personalit*# &ould not be regarded as la&.'

The proposition that a la& &ithout 8ustice is no la& and# therefore# it need not beobe*ed raises ver* co6plicated uestions. or one thing it under6ines the ver*authorit* of positive la&# and its clai6 to obedience. The uestion is &hen is a personentitled to disobe* the la&F It is also pertinent to ask# &hether it is 8ustifiable to penalise a person for obe*ing the la&. Radbruch &as a&are of the dangerous possibilities of his proposition# and cautioned that the obedience to positive la& can beheld illegal onl* in e3tre6e cases b* a superior court.9everal atte6pts have been 6ade to reconcile the principles of natural la& &ith the

practical e3pedienc* of positive la&. Cne such atte6pt is b* 9ra66ler &ho advancesthe idea of natural la& &ith a var*ing content. The basic principles re6ain the sa6e# but their detailed applications &ould depend on the special circu6stances of eachsociet*. -o&ever# the critics of 9ta66ler point out that if &e allo& the content of natural la& to var* according to social differences# &e &ould abandon all hopes of ob8ectivit* in ethics or la&.

innis is a 6odern 8urist# &ho has atte6pted a restate6ent of natural la&. Accordingto hi6# there are hu6an goods that can be secured onl* through the institution of hu6an






I9reasonablenessG and (vii religion. Ever* hu6an la& 6ust be evaluated in ter6s of ho&it secures these basic values of hu6an e3istence. To the uestion# &hether a person isentitled to disobe* an un8ust la&# his ans&er is that there 6a* be an obligation toco6pl* &ith an un8ust la& to the e3tent that such co6pliance is necessar* to avoid bringing the la& as a &hole into conte6pt. uller# &ho accepts a necessar* connection bet&een la& and 6oralit* does not agree &ith the vie& that the rules of the legal s*ste66ust confor6 to an* substantive reuire6ents of 6oralit*# or to an* e3ternal standard-e postulates the need for rules of la& to co6pl* &ith inner 6oralit*. In order to be

consistent &ith inner 6oralit*# la&s 6ust be/ (i generalG (ii publishedG (hi prospective#not retrospective'# (v intelligibleG (v consistentG (vi capable of being co6plied &ithG(vii endured &ithout undue changes and (viii applied in the ad6inistration of societ*.

Even though positivis6 is apparentl* an antithesis of natural la&# -Q -art# a 6odern 8urist &ho is identified &ith anal*tical positivis6# ha 6ade an atte6pt to bring positivis6 and natural la& together. In his atte6pt to restate natural la& fro6 a se6i'sociological point of vie&# -art ad6its that there are certain substantive rules# &hichare essential if hu6an beings are to live continuousl* together in close pro3i6it*. -e



also concedes die ft natural necessit* for certain 6ini6u6 for6 of protection for persons# propert* and pro6ises. Natural la& contains the ele6entar* principles# &hich&e 6ust respect as long as 6en are &hat the* are. These principles propose the settingup of a viable societ*. -o&ever# -art# &ho travels along the path of natural la& up tothis point# refuses to accept that the validit* of a legal nor6 depends on its confor6it*

&ith natural la& principles. -t does not give a clear ans&er to the uestion of the statusof la& &hicl flagrantl* violates the 6ini6u6 protection for persons propert* and pro6ises. A further uestion that arises is as to &hat# if an*# is the rightd resistance tosuch la&sF

inall*# irrespective of &hether one is a supporter of natural la& thcort &e cannot failto appreciate its role as an antidote to legal rigidit*. It plan before us an ideal andinspires us to change the rules of la& fro6 &hat tip are to &hat the* ought to be. Thenatural la& theor* also &eakens authorit* of un8ust and i66oral la&s. hatever be itsdeficiencies# natu la& theor* &ill re6ain &ith us so long as there is a feeling of disconurW &ith 8ustice based on positive la& alone.

)"eories o& La! ((- Le$a0 %ositi:ism

)"e emer$ence o& positi:ism in p"i0osop"y is t"e resu0t o& a s"i&t in emp"asis &rom

metap"ysica0 to empirica0 trends in t"eoretica0 p"i0osop"y. #"en t"inkin$ proceeds

on t"e ;asis o& deductions &rom pre>concei:ed idea0s= it is kno!n as metap"ysica0

!"en it proceeds on a study o& &acts and experiences it is termed as empirica0 or

positi:istic. )"is is= o& course= an o:ersimp0i&ied met"od o& exp0ainin$ t"e t!o terms.

2o!e:er= it makes t"e &undamenta0 di&&erence ;et!een t"e t!o approac"es c0earer

to t"e reader.

)"e ad:ancement in modern science ;ased on &act>o;ser:ations induced 0e$a0

t"inkers to re<ect metap"ysica0 pursuits in &a:our o& &act>o;ser:ations or experience

eit"er on t"e tec"niFues o& 0a!= or on its &unctions in socia0 0i&e. (n $enera0= 0e$a0

positi:ism s"ared !it" positi:istic t"eory an a:ersion to metap"ysica0 specu0ations=

and to t"e searc" &or u0timate princip0es.

, nota;0e &eature o& t"e positi:ist approac" !as its re<ection o& any attempt to

articu0ate an idea o& 0a!= transcendin$ t"e empirica0 rea0ities o& existin$ 0e$a0

systems. Re<ectin$ :a0ue considerations &rom t"e science o& <urisprudence= it

dec0ared t"at t"e task o& <urisprudence is con&ined to ana0ysis and dissection o&

positi:e 0e$a0 orders. Le$a0 pitiyists?accept on0y positi:e 0a! as 0a!=

and?p<osidye?0a! means t"ose <uridica0 <iorms !"ic" "a:e ;een esta;0is"ed ;y

t"e?aut"ority o& t"e state

)"is is "o! Ju0ius oor= a 2un$arian <urist= exp0ains 0e$a0 positi:ism- Le$a0

positi:ism is a :ie! accordin$ to !"ic" 0a! is produced ;y t"e ru0in$ po!er in

society in a "istorica0 process. (n t"is :ie!= 0a! is on0y t"at !"ic"

JXYuiinp::erJias commanded= and any t"in$ !"ic" it "as commanded is 0a! ;y

:irtue o& t"is :ery circumstance. Z)R e positi:ist approac" insists on a strict






rule. It seeks to define la& not according to content# but according tt for6al criteria#&hich differentiates the legal rules fro6 other rules.

Legal positivis6 is not a single creed# as *ou &ill understand &hen proceed

furtherA &ell' kno&n classification of positivis6 into anali< and prag6atic &as 6ade b* Mficd'ann# !nal%tical positivis6 concentres (tl liw as it is# and not on la& as itought to be. This separation eli6inait all considerations of ideologies# and value 8udg6ents. La&# according a anal*tical positivis6# is the co66and of political authorit*&hose force i nor dependent on their 6oral virtues# historical origins# or sociologideffects. Prag6atic positivis6# on the other hand# treats la& as a resultant of social factsand social forces. This approach is ver* si6ilar to the approad of so6e sociological 8urists<

,ustin

ohn Austin# an influential 8urist# is considered as the t*pical representative of anal*tical positivis6. -is theor* of la& is usuall* called the i6perative theor* because of itse6phasis on co66and. e &ill no& discuss in detail the i6perative theor* of Austin.

Austin defined la& as the general co66and of a sovereign to his sub8ects obligingthe6 to a course of conduct. This definition obviousl* involves t&o ele6ents# viH# (ico66andG (ii sovereign. Let us anal*se these t&o ele6ents so that &e can understandAustin>s theor* better. U

+ommand /

A co66and is the e3pression of a &ish or desire to another that he shall do# or forbear

fro6 doing# a particular act coupled &ith an inti6ation that# in case he does not co6pl*&ith it# he &ill be visited &ith certain evil conseuences. hat distinguishes a co66andfro6 other e3pressions oi &ish is the evil conseuences in case of non'co6pliance. Theessential co6ponents of a co66and are/

(i dut*—the obligation to co6pl* &ith the co66and on pain of the evil attendanton its non' co6plianceG

(ii right—the capacit* to direct another to oblige in a particular act or forbear fro6doing a particular actG arid

(iii sanction—the evil &hich &ould be the conseuence of disobe*ing the co66and.Cne uestion that arises in relation to sanction is &hether re&ards could also be

considered as sanction. Though so6e 8urists# including $entha6 and Locke# are in favour of considering re&ards also as sanction# Austin

//8



Theories of Law II: Le)al Positivis'

ccording to rules.d &hen &e

% anal*tical oncentrates ! eli6inates cording to se force is aciological esultant of /approach

esentative nperative in detail

S sub8ects involves lese t&odoes not agree &ith this vie&. According to hi6# a re&ard cannot be 6ore than a 6otive#

and 6a* at best be an induce6ent to co6pl* &ith a co66and. A re&ard is never capableof enforcing a co66and against an un&illing person. It is the po&er of inflicting an evilin case of nonco6pliance that gives to an e3pression of &ish the nature of a co66and.urther# re&ards are for co6pliance# &hile sanctions are the conseuence of non'co6pliance. Austin does not consider re&ards for co6pliance as consistent &ith thedignit* and authorit* of la&.

In so6e cases# a transaction in contravention of a rule of la& &ill be treated as a nullit* b* the courts. Austin includes this as a real sanction# even though it onl* avoids benefitsor privileges# but does not inflict an* evil.

)o66ands 6a* be particular# or general. According to Austin# a particular co66anden8oins or forbids a particular act specificall* deter6inedG &hereas a general co66and

en8oins act or forbearance of a class or series for6ing a course of conduct. 9o6e other 8urists# notabl* $lackstone and arkb*# instead of looking at the act in uestion# look atthe person to &ho6 the co66and is addressed in order to call it particular or general. Aco66and is general if it is addressed to a class of persons in general# and it is particular if it is addressed to individuals onl*. -o&ever# Austin 6aintained that even if a co66and isaddressed onl* to one person# it &ill a6ount to a general co66and if it prescribes acourse of conduct to hi6.

i"a00 do= t"at= in un e:i0 ions o&I ssentia0

pain o&



Jar act

;eyin$

cou0d it"am ,ustin

9overeign

A sovereign is a person or bod* Yaf persons &ho &ields supre6e po&er in an 8nde88enden<political societ*. Auin TaringT out t")Er<ctefistics of a sovereign asro00o!s))& a deter6inate hu6an superior# not in the habit of obedience to a like superior#receives habitual obedience fro6 the bulk of a given societ*# that deter6inate superior issovereign in that societ*.> ro6 this definition# t&o i6portant aspects of sovereignt*e6erge# na6el*/

(i The bulk of the societ* shall pa* habitual obedience to a deter6inate andco66on superior. This is called the positive 6ark of sovereignt*. 9o6e call it

internal sovereignt* because it relates to conditions &ithin the state. (ii The superior shall not be in the habit of obedience to an* other hu6an superior.

This is called the negative 6ark of sovereignt*# or e3ternal sovereignt*.

A detailed anal*sis of Austin>s &ritings reveals that he had besto&ed great attention toeach and ever* &ord in his definition of the &ord >sovereign>.



!!1

*!




e &ill e3a6ine the6 briefl* no&.

(i The sovereign 6ust receive obedience fro6 the bulk of the sociec It indicates a

general 6easure of obedience. The presence of sora rebels in the societ* &ill notaffect the e3istence of the sovereign provided the* are not strong enough toresist the e3ercise of thi sovereigns po&er to an* effective degree.

(ii The obedience 6ust be habitual or per6anent. An occasional oi transientobedience is not sufficient to constitute sovereignt*. It is also necessar* thatobedience 6ust be free and voluntar*# and not forced. Thus# the people &ho obe*the co66ands of an ar6* &hich has occupied their territor*# out of fear alonecannot be treated as pa*ing habitual obedience. Austin 6akes it clear that perfectobedience is not necessar*# and a general 6easure of8 obedience is sufficient to6ake the la& effective. Cn the causes of general obedience# &hether it is out of fear# habit or love of order# Austin said that it is for the social scientist to

investigate that uestion. 9i6ilarl*# the uestion as to ho& the sovereign ca6e toen8o* obedience# &hether through conuest# usurpation or election# is left to thehistorian. Austin believed that the fact of obedience is enough for the legaltheorist.

(iii The sovereign 6ust be a superior in the societ*# i6pl*ing that he 6ust have the po&er to co6pel obedience. This is ho& Austin e3plains superiorit*/ >The po&er of affecting others &ith evil or pain and of forcing the6# through fear of that evil#to fashion their conduct according to one>s &ishes.> Austin identified t&o kinds of superiorit*# viH# natural and positive. The superiorit* of +od is natural# and hisco66ands 6a* be called natural la&. Positive superiorit* is derived b* virtue of position in societ*. The sovereign occupies the supre6e position in a societ*# andhis co66ands are i called positive la&s.

(iv The superior 6ust be a deter6inate person or bod* of persons. In other &ords# anindeter6inate bod* of persons cannot constitute a sovereign. The uestion is&hen do &e sa* that a bod* of persons is deter6inateF It is &hen &e canascertain its 6e6bers &ith precision. A bod* of persons is indeter6inate if all the persons &ho co6prise it cannot be ascertained e3actl*. or instance# >the6e6bers of Indian Parlia6ent> is a deter6inate bod* of personsG &hile >the eliteof India> is indeter6inate.

(v The superior 6ust be co66on to the entire societ*. No societ* can have t&oindependent sovereignsG but sovereignt* 6a* be vested in a bod* of t&o or 6ore persons 8ointl*.

!,%




(vi The superior 6ust be independent of all i6perative control fro6 outside. Thegovernor of a colon* 6a* receive habitual obedience fro6 the bulk of the societ*#and thus satisf* the internal 6ark of sovereignt*. -o&ever# he does not satisf* the

e3ternal 6ark of sovereignt* because he is under the control of the colonial po&er. (vii The final condition is that the sovereign 6ust preside over a political societ*.Austin considered the nu6ber of persons co6prising a societ* as crucial indeter6ining &hether it is a political societ*. A father# &hose co66ands arehabituall* obe*ed b* the fa6il*# or a tribal chief &hose co66ands are habituall*obe*ed b* a tribe# are not sovereign because the* do not preside over a politicalsociet*.

The third i6portant ele6ent in Austin>s definition of la& is sanction# &hich 6a* beconsidered as in'built in the idea of a co66and. It signifies a 6ethod of coercion toenforce the co66and# not leaving the citiHen free to decide &hether to obe* the la&# but

to 6ake hi6 obe* irrespective of &hether he likes it. 9anction consists of the penaltiesinflicted on the orders of the sovereign for the violation of la&. If# for instance# thesovereign decrees that no driver should e3ceed 5% k6hr on the high&a*# a person &hoviolates that co66and &ill be liable to pa* fine or undergo i6prison6ent. Thus# thesovereign po&er# na6el* the state# has given a co66and and enforced it b* a sanction.

)"eory o& So:erei$nty

ro6 Austin>s theor* of la&# a theor* of sovereignt* also e6erges. Austin has identifiedthree essential characteristics of sovereignt*. According to hi6# sovereign is/

(i essential in ever* stateG (ii indivisibleG and (iiiunli6ited and illi6itable in po&er.

No& &e &ill e3a6ine each of these three characteristics.

Essentialit%: Ever* political societ* or state 6ust essentiall* have a sovereign. In theabsence of sovereignt*# no societ* can have a political e3istence in itself. It &ill onl* bea li6b of another societ* &hich has sovereignt*. Partl* 6odif*ing this vie&# 9al6ondobserved that there 6a* be se6i'sovereign states in &hich sovereignt* is shared. In afederal state# sovereignt* 6a* be divided bet&een the co6ponent states# and the federalunion. -o&ever# this vie& see6s to be against the second attribute of sovereignt*# viHindivisibilit*.

!,!






in &ho6 the totalit* &ereignt* cannot be sovereignt* is vested No 6e6ber of that

=ssential attribute of viH# the legislature# sovereign po&er in

/d# that the state enu6erated in the of India. et# ho& i la& enacted b* a f India prescribes ;5:. In addition# v State of =erala structure of the in respect of the ;ourtF Cr

is the

and illi6itable# lied# illi6itable# in a person is

is of the state# la* an* clai6 us are li6ited# lg the position i# the e6inent cale3perience onception of e (including The task of 9o6e 8urists lo&ever# this 6ust be

a

db*/The idea of illi6itabilit* necessaril* fails# because neither of these t&o things can beunli6ited.

Another i6portant uestion is &hether it is desirable to have unli6ited and illi6itable po&er in the sovereign. It is no& recognised that ever* po&er# including even the po&er of the state# 6ust be li6ited# as other&ise despotis6 and t*rann* &ill be the result. 9o#Austin>s concept of sovereignt* 6ilitates against the concept of li6ited govern6ent.

Dice'<!0!<so<isiderecLas the authoritative e3ponent of the $ritish )onstitution#atte6pted to resolve this dile66a b* his theor* that the people taken collectivel* as one bod* are the political sovereign# and Parlia6ent &hich has the supre6e po&er to pro6ulgate and enforce 0a!s is the legalsovereign. Even though# in theor*# theParlia6ent has legislative supre6ac*# it cannot go against the people>s &ill. In addition#the idea of dividing sovereignt* and the concept of political sovereignt* does not accord&ith Austin>s concept of sovereignt*. Dice*s concept of a political sovereign is not that of a superior receiving obedience fro6 the peopleG it is the ver* people the6selves.

Another 8urist# ethro $ro&n# has advanced the theor* that real sovereignt* is vested inthe state vie&ed as a corporation# and that all other authorities in the state are onl* itsagents through &ho6 it e3presses its &ill and acts. This vie& also conflicts &ith Austin>s

theor* that the sovereign 6ust be a deter6inate person or group of persons# i6posing his&ill upon the rest of the co66unit*.

e find that 6odern political organisation is so co6ple3 that it is not possible todivide a political societ* into t&o distinct classes—the ruler and the ruled# or sovereignand sub8ect. It 6a* be 6ore correct to sa* that in a 6odern state# sovereignt* is reall*diffused throughout the societ*# an idea that finds e3pression in Dice*s concept of political sovereignt*.

Austin &as conscious of the fact that his definition of la& as a general co66and of the



sovereign# attended b* a sanction for its enforce6ent# cannot be applied to all la&s. -erecognised the follo&ing e3ceptions/

(i Declarator* la&s# &hich 6erel* e3plain or interpret the provisions of other la&s.The +eneral )lauses Act !:12 is an e3a6ple.

(ii Repealing la&s# &hich repeal an e3isting la& and thus free people fro6 theobligations i6posed b* the repealed la&. 9uch la&s do not contain an* co66and. (iii I6perfect la&s# &hich create i6perfect obligations. It is left to the discretion of the

individual concerned to adopt the la& or to re8ect it. There is no co6pulsion# andno sanction is attached. or e3a6ple# if the Debt Relief Act provides that a debt&ill stand

/74



discharged if the debtor pa*s 2@ percent of the debt before a stipulated date# there isno co6pulsion on the debtor to pa* before that date. -o&ever# if he pa*s he &ill beentitled to the benefit# (iv La&s of procedure# &hich prescribe the procedure to befollo&ed for la&'6aking# ad8udication# etc are also not co66ands &ith sanctionsattached to the6.

Austin did not consider 8udge'6ade la& as an e3ception to the theor* of la&. A 8udge indeciding a case# is onl* e3ercising the &ill of the sovereign b* delegation. The force andauthorit* of a 8udge>s decision is reall* the force and authorit* of the sovereign. Austinconsidered 8udicial decisions as tacit co66ands of the sovereign.

The uestion is ho& to classif* )usto6ar* La&s and )onventional La&s.> The* arenot 6ade b* the sovereign# but are voluntaril* adopted b* the people. In this sense the*are not co66ands of the sovereign. -o&ever# Austin considers the6 also as tacitco66ands because the sovereign could have abolished a )usto6ar* or )onventionalLa&. The fact that the sovereign per6its the custo6 to be enforced as la& in his courtssho&s his desire or co66and that such custo6 shall be la& to his sub8ects. This is

euated &ith a tacit co66and.e have devoted so 6uch ti6e to a discussion of Austin>s theor* because he is stillconsidered a do6inant force in English legal thinking. It is not because Austin>s theor* isstill follo&ed or accepted# but because a great deal of 8urisprudential thought has evolvedin response to his theor*. Perhaps# there is no other 8urist &ho has been criticised so6uch. It is apt to sa* that one 6a* agree &ith Austin# or disagree &ith hi6# but onecannot ignore hi6.

Austin &as a positivist# but adherence to positivis6 does not necessaril* 6eanadherence to the co66and theor*. Therefore# Austin>s critics include not onl* 8urists belonging to the natural la& school or the sociological school# but also anal*tical positivists like -art. No& &e &ill turn to so6e of the criticis6s.

The 6ost forceful criticis6 of Austin>s theor* ca6e fro6 natural la&. It &as pointedout b* Lon uller that la& is a kind of order# &hich has an internal 6oral structure to&hich it 6ust confor6 in order to be called la&. Austin>s definition does not link la& &ith 8ustice# &hich is the ai6 and purpose of la&. $* giving i6portance onl* to the i6perativeforce of la&# Austin included an* general co66and of the sovereign# irrespective of &hether its ob8ect be 8ustice# in his definition of la&.

The e3clusion of sociological content fro6 la& is the 6ain target of attack of thesociological school. Austin# his critics allege# postulated his definition fro6 a socialvaccu6. -e has ignored the senti6ents of the

!,"




co66unit*. It is the conviction of the people that the la& has prescribed the right courseof conduct that reall* constitutes its authorit* and force. At best# sanctions enforceobedience against a recalcitrant 6inorit*# but &hen there is a general feeling in the

co66unit* that a la& is totall* oppressive and un8ust# there &ill be universaldisobedience. 9anctions cannot enforce obedience in such a situation.Another criticis6 against the co66and theor* is that it vie&s la& as so6ething thrust

upon the people b* an e3traneous superior. This 6a* be true in a dictatorship or a policestate. -o&ever# ho& far is it true in a 6odern de6ocratic &elfare stateF

9anction# as an essential ele6ent of la&# is true onl* of cri6inal la&. )ivil la& ai6s6ostl* at the proper 6aintenance of legal obligations# and does not i6pose an* penalt*.

-enr* aine# &ho belongs to the historical school of thought# has described Austin>stheor* as historicall* inaccurate. In ancient states# the sovereigns &ere not concerned&ith la*ing do&n the la&s. )usto6s and popular usages established the la&s in thosestates. The la&s &ere then not the co66ands of the sovereign# but &ere adopted b* the

people for the6selves. This criticis6 of -enr* aine is dis6issed b* 9al6ond# as itrefers onl* to the crude la&s of pri6itive da*s# and not to the developed la&s of a 6odernstate.Another li6itation of Austin>s theor* is that it does not recognise i6portant branches of la&# such as )onstitutional La&# and International La&. -o& can one bring )onstitutionalLa&# &hich i6poses li6itations on the po&er of the state# &ithin the definition of la& asthe co66and of the sovereign to his sub8ectsF In International La&# there is no superior authorit* to enforce the la&s on the states. There is no sovereign &ho6 the states obe*habituall*. There is no co66and# but onl* 6utual agree6ent and good&ill of the states&hich gives authorit* to International La&. 9o Austin considered the e3pression>international la&> a contradiction in ter6s. êt all 6odern 8urists consider InternationalLa& as an i6portant branch of la&.

Austin>s theor* leaves out a great part of the la& &hich is directl* applied to people andtheir ttansactions# viH# 8udicial decisions# and delegated legislation. Cf course# Austinconsidered the6 as tacit co66ands of the sovereign because la& is 6ade in e3ercise of the &ill of the sovereign b* delegation. -o&ever# this is not a satisfactor* e3planation because 8udicial la&'6aking assu6es ver* significant di6ensions in 6an* legal s*ste6sincluding India# though it &as not so pro6inent during Austin>s ti6e.

The definition of la& given b* 9al6ond recognises this i6portance. -e defines la& as>thebg8i*of principles recognised and applied b* the state

!,@




i 8n8he8<inistration of 8ustice>. This is the approach of A6erican realis6# &hich &e &ill

discuss in a subseuent lecture.' Austin>s theor* also fails to provide an adeuate e3planation to the continuance of

persona la&s like -indu La&# oha66edan La&# and the )anon la&. Austin includesthe6 under tacit co66ands# because >&hat the sovereign per6its# he i6pliedl*co66ands>. -o&ever# &hat the sovereign per6its is onl* their enforce6ent as la&. Thetacit co66ands i6plied in such per6ission are related onl* to their enforce6ent# but notto their enunciation. These personal la&s have not been created b* the co66ands of thesovereign. Therefore# it follo&s that la&s 6a* be thus created other&ise b* theco66ands of the sovereign. La&s 6a* pre'e3ist the co66ands.

ried6ann>s criticis6 &as 6ainl* directed to Austin>s approach to concepts such asright# propert*# possession# etc. Austin assu6ed that these concepts had a fi3ed and static6eaning# but neither a &ord# nor a concept can have a fi3ed 6eaning for all occasions.Their 6eaning varies according to the conte3t# purpose# and also ti6e.

hen Austin for6ulated his theor* of la&# he had the conte6porar* English s*ste6 in6ind. -o&ever# instead of confining his theor* to the English s*ste6# he stated it as atheor* of la& in general. This has also been criticised.

Austin# the positivist# propagated the doctrine that it is necessar* to separate the la& asit is fro6 &hat it ought to be. -is concept of la& is reducible to a prescription of conduct phrased in i6perative for6. -is 6ethod of logical anal*sis# ie# of deducting the nature of legal conceptions fro6 the conception of la& is# as 9tone points out# no 6ore than theuse of a 6odel to reveal the logical consistenc* of a s*ste6. The value of an* such 6odeldepends on the degree of correspondence bet&een it# and the &a* in &hich la&s andlegal conceptions are actuall* used. Austin believed that there &as a sufficient 6easureof correspondence bet&een his 6odel and actualit*. In this belief# he &as 6istaken.

Another dra&back of Austin>s theor* &as that he did not reveal the reasoning &hichled hi6 to his concept of la&# but si6pl* 6ade certain assu6ptions and applied the6logicall*.

2art

-LA -art is the 6ost pro6inent 6odern 8urist belonging to the school of anal*tical positivis6. -is &ork> is considered one of the 6ost i6portant &orks on 8urisprudence inrecent ti6es. -art gave the follo&ing five 6eanings of positivis6/

7 The Concept of Law# /96/.

!,5




!%%I of Sortant lg five(i La&s are co66ands of hu6an beings. -o&ever# he did not subscribe to the

co66and theor* of Austin. (ii There is no necessar* connection bet&een la& and 6orals# ie# la& as it is# and la&



as it ought to be. (iii Anal*sis (or stud* of 6eanings of legal concepts is &orth pursing. It 6ust be

distinguished fro6 (a historical inuiries into the causes and origins of la&sG (bsociological inuiries into the relation of la& and other social pheno6enaG and (cthe criticis6 or appraisal of la&# &hether in ter6s of 6orals# social ai6s#

functions# or other&ise. (iv A legal s*ste6 is a closed s*ste6 in &hich correct legal decisions can be deduced b* logical 6eans fro6 pre'deter6ined legal rules &ithout reference to social ai6s# policies# or 6oral standards.

(v oral 8udg6ents cannot be established or defended b* rational argu6ent#evidence or proof# as state6ents of fact can be.

-art atte6pted to bridge the gap bet&een theories of la& e6phasising recognition andsocial obedience as the essential characteristics of a legal nor6# and those that see thedistinctive characteristics of la& in the correlated ele6ents of authorit*# co66and# andsanction. -art begins &ith a criticis6 of Austin# e3plaining the shortco6ings of his

theories# and then advances his o&n theor* of la&.According to -art# the core of Austin>s theor* that identifies la& as co66ands backed b*the threat of sanction 6a* be true &ith respect to so6e la&s# for e3a6ple cri6inal la&.

-o&ever# as a general theor*# it fails because there 6a* be other t*pes of la&s that do notrese6ble orders backed b* threats. or instance# la&s &hich prescribe the &a* in &hichvalid contracts# &ills# or 6arriages are 6ade. The* do not co6pel people to behave in a

certain &a*. The* >provide individuals &ith facilities for realising their &ishes b*conferring legal po&ers upon the6 to create# b* certain specified procedures and sub8ect

to certain



conditions# structures of rights and duties>. 9i6ilarl*# la&s of a public nature# in thefield of )onstitutional and Ad6inistrative La&# Procedural La& and 8udge'6ade la&cannot be treated as orders backed b* threats. The* are better regarded as po&er conferring rules.

-art points out that in Austin>s sche6e# the la&'6aker is not bound b* the co66and he

gives. -o&ever# in 6an* legal s*ste6s# legislation is binding on the bod* that 6akes it.The origin of la&# -art sa*s# is different fro6 the origin of an order backed b* a threat.or instance# those custo6s that are recognised as la& &ithin a particular societ* do notste6 fro6 an* deliberate act. -e re8ects the >tacit co66and> theor* also# because in an*6odern state# it is rarel* possible to sa* at &hat point a sovereign# &hether

1"#








the supre6e legislature or the electorate# learns of the application of a custo6 as la&# anddecides not to interfere &ith it.

-art considers the notion of the habit of obedience also deficient# because it fails to

account for the continuit* in a legal s*ste6. -e elaborates this &ith the help of anillustration. 9uppose a countr* is ruled b* an absolute 6onarch ,ex I* After his death#his eldest son ,ex II succeeds to the throne. êt &e do not kno& &hether the people &illobe* his orders# until &e find that the people are in a habit of obedience to hi6. Cnl* atthis point can &e sa* that an order b* ,ex II is la&. During the intervening period# sincethere is no sovereign to &ho6 the bulk of the societ* is in the habit of obedience# therecan be no la&# according to Austin. hat &e actuall* find in an* legal s*ste6 is thee3istence of rules &hich secure the uninterrupted transition of po&er fro6 one la&6aker to the ne3t. If the rule provides for the succession of the eldest son# then ,ex II has a title to succeed his father. -e &ill then have the right to 6ake la&# and &hen hisfirst orders are issued# &e can ver* &ell sa* that the* are alread* la&. It is not necessar*

to establish an* relationship of habitual obedience bet&een hi6. and his sub8ects. In ade6ocrac*# the rules# &hich provide for continuit* 6a* be 6ore co6ple3. The point isthat such rules are essential.

The >habit of obedience> test also does not ans&er &h* orders of :e7 continue to theregarded as la&. -art re8ects the >tacit co66and> theor*# and substitutes the notion of habit of obedience &ith the notion of currentl* accepted funda6ental rules specif*ing aclass or line of persons &hose &ord is to constitute a standard of behaviour for thesociet*># ie# &ho have the right to legislate.

-art then sets out to de6olish Austin>s notion of sovereignt* as legall* unli6ited andilli6itable. The co6petence of legislature 6a* be li6ited b* a &ritten )onstitution. If thelegislature oversteps# the la& purported to have been 6ade &ill be declared invalid b* thecourts. The true nature of a legal s*ste6 cannot be e3plained in ter6s of a sovereign &ithunli6ited po&ers. -art tells us that this is possible onl* in ter6s of rules that confer authorit* on a legislature to legislate. Rules used b* the courts are regarded >as a criterionof the validit* of purported legislative enact6ents co6ing before this>.

The uestion arises &hether it is possible to defend Austin>s theor* b* identif*ing asovereign >behind the legislature># a sovereign &ho 6akes the rules &hich deter6ine thelegislature>s co6petence. If the electorate is considered as the sovereign behind thelegislature# a further difficult* arises.

Austin defines la& as the co66and of a sovereign to &ho6 the bulk of the populace isin the habit of obedience. If the electorate is the sovereign# then &e have the populace inthe habit of obedience to itself. In this case#

!,:







that &hen the lights turn red# the traffic stops. This is the e3ternal point of vie&. A person &ho drives a car looks at this in a different 6anner. or hi6# the light tuning red isa signal to stop. -e kno&s that &hen the light turns red# he ought to stop. The driver looks at the rule fro6 an internal point of vie&.

9ocial rules 6a* be social conventions# or rules &hich constitute obligations. A group

strives to see that social conventions are observed# and those &ho break the6 arecriticised. hen there is an insistent de6and that 6e6bers of the group confor6# and&hen there is great pressure brought to bear on those &ho break the rule or threaten to doso# &e call it a rule &hich constitutes an obligation. 9uch rules are necessar* to 6aintainsocial life. E3a6ples are rules &hich restrict violence# or &hich reuire pro6ises to bekept. The* involve so6e sacrifice on the part of the person &ho has to co6pl* &ith therule for the benefit of others in the societ*.

-art 6ade a further division of the rules &hich constitute obligation into t&o# viH/

(i Rules &hich for6 part of the 6oral code of the societ*# or 6oral obligations. Thereis no authorit* responsible for punishing breaches of such rules. There &ill be

social pressure for confor6it* in the for6 of hostile reaction# disapproval or approval to the

!,1



indi:idua0s respect &or t"e ru0e. )"e pressure may re0y on inducin$ &ee0in$s o&

s"ame= remorse= or $ui0t in t"e o&&ender= PiiQ Ru0es !"ic" take t"e &orm o& 0a!s.

2ere= t"e pressure &or con&ormity inc0udes p"ysica0 sanction a$ainst a person

!"o ;reaks t"e ru0e= $enera00y app0ied ;y o&&icia0s.

No!= 2art ;rin$s t"e 0ast cate$ory o& ru0es= ie= t"ose !"ic" take t"e &orm o& 0a! or0e$a0 ru0es into &ocus. 2e identi&ies t!o kinds o& 0e$a0 ru0es= :iT primary ru0es= and

secondary ru0es. %rimary ru0es te00 peop0e to do t"in$s or not to do t"in$s. )"ey 0ay

do!n duties. Secondary ru0es 0ay do!n t"e !ays in !"ic" primary ru0es may ;e

introduced= :aried= and a;andoned.

, secondary ru0e !"ic" ena;0es us to kno! !"at t"e primary ru0es are= is a ru0e

o& reco$nition. (& a society "as a ru0e o& reco$nition t"en it "as a !ay o&

determinin$ !"et"er a 0a! is :a0id. , secondary ru0e t"at pro:ides &or !ays in

!"ic" t"e primary ru0es can ;e c"an$ed is a ru0e o& c"an$e. (t may speci&y t"e

persons !"o "a:e t"e po!er to a0ter t"e 0a!= and a0so 0ay do!n t"e procedure to ;e

&o00o!ed. , secondary ru0e !"ic" ena;0es any indi:idua0 to &ind out !"et"er a

primary ru0e "as ;een ;roken= is a ru0e o& ad<udication. (t 0ays do!n !"o mustdecide t"is= and t"e procedure !"ic" must ;e &o00o!ed. Ru0es o& ad<udication are

concerned !it" <ud$es= courts= <urisdiction and <ud$ments. )"ere are secondary

ru0es !"ic" pro"i;it indi:idua0s &rom takin$ 0a! into t"eir o!n "ands= and punis"

t"em &or ;reac"es o& primary ru0es. )"ey pro:ide &or an o&&icia0 system o& pena0ties

administered ;y o&&icia0s= and t"us amount o& sanctions.

, 0e$a0 system= accordin$ to 2art= is made up o& t"e com;ination o& primary ru0es

and secondary ru0es o& reco$nition= c"an$e= ad<udication= and sanction.

#e "a:e a0ready seen t"at t"ere are se:era0 sources o& 0a!= e$= +onstitution=

0e$is0ation= <udicia0 decisions= and customs. Does it mean t"at t"ere are se:era0 ru0es

o& reco$nition 2art appears to ;e in &a:our o& t"e :ie! t"at t"ere can ;e on0y one

ru0e o& reco$nition in any 0e$a0 system= t"at !"ic" esta;0is"es t"e supreme source o&

aut"ority &or 0e$a0 :a0idity. )"is ru0e may "a:e su;sidiary ru0es= ;ut it must 0ay

do!n t"e order o& priority ;et!een t"em. , 0a! is :a0id ;ecause it comp0ies !it" t"e

ru0e o& reco$nition o& t"at system. Wet "o! do !e determine t"e :a0idity o& t"e ru0e

o& reco$nition (ts :a0idity is assumed ;ut cannot ;e demonstrated as in t"e case o&

Ke0sens <rundnorm, !"ic" !e !i00 discuss in t"e next 0ecture.

,s &ar as t"e Fuestion !"en does a 0e$a0 system exists is concerned= 2art

enumerates t!o conditions &or t"e same-

PiQ t"e ru0es !"ic" are :a0id accordin$ to t"e systems u0timate ru0e o&

reco$nition must ;e $enera00y o;eyed and

/45




! inducing

/onfor6it* is the rule#

/e the for6 al rules# viH 5 do things * do&n the abandoned# r* rules are# then it has a hat provides f change>.It and also la* enables an*# is a >rule of /edure &hich idges# courts# iich prohibit ish the6 for ! of penalties

6bination of ad8udication#

)onstitution# that there are the vie& that an= that &hich This rule 6a* iorit* bet&eengnition of thut ecognitionF Its ase of 7elsen>s

ncerned# -art ilti6ate rule of

(

(ii the s*ste6>s secondar* rules (of recognition# change and ad8udication 6ust beaccepted as co66on public standards b* the officials.



A legal s*ste6 breaks do&n &hen one of these conditions is not satisfied. 9uch asituation 6a* arise due to revolution# occupation b* an ene6* po&er# or anarch* leadingto a breakdo&n of legal control. -art>s concept of la& 6a* be illustrated b* the follo&ingtable/

Table !

-ART>9 )CN)EPT C LA

)"in$s t"at in&0uence "uman ;e"a:iour

Socia0 Ru0es Socia0 2a;its

$ations

PExterna0 and (nterna0 PExterna0 ,spects n0yQ,spectsQ

+on:entions ;0i

ora0 ;0i$ation a#



%rimary Ru0es Secondary Ru0es

Ru0es o& Reco$nition Ru0es o&

+"an$e Ru0es o& ,d<udications

Sanction (mposin$ Ru0es

+onstituents o& a Le$a0 System

Note- )"is is a s0i$"t0y modi&ied :ersion o& t"e dia$ram $i:en in J@ Ridda00=

Jurisprudence# second edn= /999= p 14.

According to -art# a rule of recognition constitutes >the criteria for the identification of the la&s &hich courts have to appl*>. The uestion &hether these criteria can include principles or 6oral values is proble6atic. A >hard positivist> &ill not accept the inclusion

of an*thing other than identifiable criteria in his rule of recognition. -art see6s to haveadopted a >soft positivist> position &hen he recognises that &here a 8udge is reuired to6ake decisions in a penu6bral area in &hich no settled la& e3ists# he 6a* look outsidethe criteria recognised b* >hard positivists># and take into account 6oral values and social practices as a valid source of legal authorit*.

/4/




(

The ru0e of recognition is a secondar* rule# &hich is po&er conferring. 9o6e 8uristssuggest that it is better to regard the6 as a special kind of ru0e than a po&er. RaH goes tothe e3tent of stating that the rule of recognition is not a po&er# but a dut* addressed toofficials.

A legal s*ste6# according to -art# is constituted b* the union of pri6ar* rules creatingduties# and secondar* rules creating po&ers. The distinction bet&een these t&o t*pes of rules has been uestioned. The sa6e rule 6a* create a po&er plus a dut* to e3ercise it# or a po&er plus a dut* not to e3ercise it. uller is of the vie& that the sa6e rule 6a* confer po&er and dut*# or po&er or dut* according to the circu6stances. Neil ac)or6ick tellsus about rules# &hich abolish one>s dut* on an event# eg# a contract discharged b*frustration. 9uch a rule is neither po&er# nor dut* conferring. There 6a* even be rules

about secondar* rules# &hich 6a* be po&er or dut* conferring. A rule reuiring thegovern6ent to change a la& on a referendu6 is an e3a6ple of such a rule. )ritics pointout that the distinction bet&een rules creating po&ers and rules creating duties# &hich ist"e foundation of -art>s concept of la&# is ver* fluid.

Another &eakness of -art>s theor* has ;een brought to light b* D&orkin# &ho sa*sthat in unprovided cases# t"e uestion as to &hat t"e la& is# 6ust be decided b* t"e

8udge. This has to be decided &ith reference to doctrines# standards and principles &hichdo not derive their la&'ualit* fro6 a ru0e of recognition. D&orkin sa*s that to relegatethe6 to >discretion> is inconsistent &ith 8udicial acceptance of the6 as >legal>. -art>stheor* a0so 6akes insufficient allo&ance &or institutions# ie# particular &a*s in &hichrules and clusters of rules operate. These evolve in 6an* &a*s &hich cannot be attributed

to a rule of recognition# 9u66ing up a critical evaluation o& -arts concept of la&# Diaso;ser:es<)>or t"e li6ited purpose of identif*ing >la&s># his concept seeks to acco6plisn6ore than is necessar*# &or t"e purpose of portra*ing la& in a continuu6# it does not go&ar enougn.>



!;,



I/rnng. Sf rule nition

ri6ar* nction le 6a* not to er and ior6ick Gontract iferring. o&er or i& on a Gtinction his the

&orkin# is# 6ust loctrines# 86 a rule retion> is leor* also in &hich ich cannot iluation ofidentif*ing he purpose

Lecture !!

)"eories o& La! (((- %ure )"eory o& La!

e have alread* anal*sed in detail the positivist theor* of la& as propounded b* Austin.This theor* is also referred to as the >i6perative theor*> because of the idea that la& isthe co66and of the sovereign. Austin and his follo&ers conceived the co66and as anorder to a citiHen to do so6ething or not to do so6ething. -ans 7elsen# &ho hasdeveloped the >pure theor* of la&> &ith great anal*tical refine6ent# belongs to the schoolof anal*tical positivis6.

7elsen believed that a theor* of la& should be unifor6# ie# it should be applicable at allti6es# and in all places. La& itself consists of a 6ass of heterogeneous rules# and thefor6ation of a theor* of la& is to organise these rules into a single# ordered pattern.7elsen>s theor* is kno&n as the pure theor* of la&# because he declared that a theor* of la& should be free fro6 ethics# politics# sociolog*# histor* etc. In other &ords# it 6ust be pure. 7elsen did not den* the value of ethics# politics# sociolog* or histor* in shaping thela& or in understanding the la&# but he asserted that a theor* of la& 6ust keep clean of the6.

The distinction bet&een propositions of science and propositions of la& is the starting point of 7elsen>s reasoning. Propositions of science relate to events &hich are observed

to occur# and &hich do occur. The* deal &ith &hat does happen# ie# &hat is. Propositionsof la&# on the other hand# deal onl* &ith &hat ought to occui# &e# vAva3 oig#3 to be.E3plaining this distinction further# 7elsen said# >The principle according to &hich naturalscience describes its ob8ect is causalit*# the principle according to &hich the science of la& describes its ob8ect is nor6ativit*>.

The propositions of la&# or >ought propositions># are called ngrrns. A nor6 is a proposition in h*pothetical for6—if 4 happens# then ought to happen. The science of la&# ie# 8urisprudence# consists of the e3a6ination of the nature and organisation of



nor6ative propositions as the* are found.



It involves all nor6s created in the process of appl*ing so6e general nor6 to a specificaction.

7elsen defines la& as >a s*ste6 of coercion i6posing nor6s &hich are laid do&n b*hu6an acts in accordance &ith a constitution# the validit* of &hich is presupposed if it ison the &hole efficacious>. $oth Austin and 7elsen regard sanction as crucial. -o&ever#

7elsen disagrees &ith Austin>s definition of la& as co66and backed b* sanction 6ainl*in t&o respects/ (i a theor* of la&# according to 7elsen# 6ust be pure. The idea of co66and introduces a ps*chological ele6ent into a theor* of la& and 6ust# therefore# bere8ectedG (ii Austin considered sanction as so6ething outside a la&#G i6parting validit* toit. 7elsen found such a state6ent inadeuate and i confusing# for the operation of thesanction supporting a rule resolves itself into the operation of other rules# and further thevalidit* of a rule has nothing to do &ith its sanction. The operation of the sanction itself depends on the operation of other rules of la&.

7elsen conceives la& as a hierarch* of nor6s. The validit* of a nor6 (ought is not to be derived fro6 an* >is> of fact outside the la&# but fro6 so6e other nor6 (oughtstanding behind it and i6parting validit* to it. The validit* of a nor6 is ascertained &ith

reference to its authorising nor6# &hich confers a po&er to create it# and 6a* alsospecif* conditions for its e3ercise. A particular nor6# therefore# is >authorised> if it can besubsu6ed under a 6ore general nor6. In an* legal order# a hierarch* of nor6s istraceable back to so6e initial# funda6ental nor6 on &hich the validit* of all the othersulti6atel* rests. This basic# or funda6ental nor6# is &hat 7elsen calls the <rundnorm.

The <rundnorm need not be the sa6e in ever* legal order# but there &ill al&a*s be a<rundnorm of so6e kind.

Let us no& tr* to understand the idea of la& as a hierarch* of nor6s# and the<rundnorm &ith the help of an illustration. 9uppose a speed li6it of "% k6hr is prescribed for 6otor vehicles during peak hours on the 6ain road. e can e3press this asa nor6/ >If an* person e3ceeds the li6it of "% k6hr in driving his car on the 6ain roadduring peak hours# he ought to be prosecuted>. This 6a* also be e3pressed in the for6 of a direction to officials. A direction to the police officers &ill be/ >If *ou find an* persondriving his car at a speed e3ceeding "% k6hr on the 6ain road during peak hours# *ouought to arrest and prosecute hi6>G or as a direction to the 8udge/ >If *ou find that the prosecution has proved that a person has driven his car at a speed e3ceeding "% k6hr onthe 6ain road during peak hours# *ou ought to i6pose a fine of Rs @%%' or sentence hi6to t&o &eek>s i6prison6ent>. All these nor6s &ill have so6e other 6ore generalvalidating nor6 >authorising> the6. It 6a* be a provision in the Police Act or the )ode of )ri6inal Procedure enacted b* the state legislature or

!;"



Theories of Law III: Pure Theor% of Law

Parlia6ent. There is a validating nor6 behind these Acts# &hich &e 6a* locate in a provision of the )onstitution conferring legislative po&ers on state legislatures andParlia6ent. The uestion is &hether the )onstitution is the 5rundnor'* The ans&er is in

the negative because there is so6e other nor6 standing behind the )onstitution# andi6parting validit* to it. That is the reason &h* 7elsen sa*s that the 5rundnor' is not the)onstitutionG it is si6pl* the pre'supposition de6anded b* theor*# that this )onstitutionought to be obe*ed. Therefore# the 5rundnor' is al&a*s adapted to the prevailing stateof affairs. The 5rundnor' onl* i6parts validit* to the )onstitution# and all other nor6sderived fro6 itG but it does not dictate its content. 7elsen>s pure theor* differs fro6natural la& theor* in a significant 6anner here# because the focus of natural la& theor* ison the content of the nor6s.

7elsen does not rule out the possibilit* of 6ore than one 5rundnor' in a legal s*ste6# but a s*ste6 cannot be founded on conflicting 5rundnor's*

7elsen>s o&n for6ulation of a nor6# as &e have alread* seen# is/ >If N happens# then

ought to happen>. No& the uestion is &hether &e can consider the 5rundnor' as anor6 in this sense. It is obvious that it does not confor6 to 7elsen>s o&n for6ulation of anor6. It onl* e6po&ers and does not i6pose a sanction. The 5rundnor' has no rule behind it. Its validit* has# therefore# to be assu6ed for the purpose of theor*. It is theinitial h*pothesis# >the postulated ulti6ate rule according to &hich the nor6s of this order are established and annulled# receive or lose their validit*.> It is not possible to accountfor the validit* of the 5rundnor' b* pointing to another rule of la&. The 5rundnor'validates the rest of the legal s*ste6. e cannot# therefore# utilise the s*ste6# or an* partof it# to validate the 5rundnor'*

At this point# it is necessar* to distinguish bet&een validit* and effectiveness# &hich isan i6portant part of 7elsen>s theor*. Ever* nor6 other than the 5rundnor' is valid not because it is# or is likel* to be# obe*ed b* those to &ho6 it is addressed# but b* virtue of another nor6 i6parting validit* to it. This e3plains the validit* of a ne& statute even before it is applied.

Effectiveness of the legal order as a &hole is a conviction# not a reason# of the validit*of the 5rundnor'# and of an* individual nor6. There 6ust not be a total disregard of the5rundnor'1 but there need not be universal adherence to it. All that is necessar* is thatit should co66and a 6ini6u6 of effectiveness. hen a 5rundnor' ceases to derive a6ini6u6 of support# it ceases to be the basis of the legal order# and an* other proposition&hich does obtain support &ill replace it. 9uch a change in the state of affairs is said toa6ount to a revolution in la&. The uestion is at &hat point can it

!;@





Lectures in &urisprudence — > I

be said that the la&s of a rebel regi6e are efficaciousF The ans&er to this uestion is a6atter of political and 6ilitar* realit*# not a 6atter of

\hile appreciating the logical coherence of 7elsen>s sttucture# its &eaknesses inactual application have been brought out b* subseuent co66entators. The thrust of the criticis6 has been the concept of 5rundnor'* 7elsen clai6ed that he hadenu6erated a pure theor* of la&# but once the uestion of effectiveness of the5rundnor' is raised# the theor* ceases to be >pure>. In &hatever &a* the effectivenessof the 5rundnor' is 6easured# it &ould see6 to depend on those ver* sociologicalfactors &hich 7elsen so vehe6entl* &anted to e3clude fro6 his theor* of la&. If so6einuir* into political and sociological factors has to precede# or at least is 8 i6plicit inthe adoption of a particular 5rundnor' as the criterion of validit*# and if the validit*of ever* part of the s*ste6 is dependent upon the U continued effectiveness of the

&hole# the stud* of 8urisprudence should Z include the stud* of the social environ6ent.It is# therefore# difficult to j den* that ever* proposition of la& has an ulti6ate ethical

basis. -o& then f is a total separation of la& fro6 6oralit* possibleF7elsen>s failure to la* do&n criteria# b* &hich the 6ini6u6 effectiveness of legal

nor6s is to be 6easured# has also been criticised. The reuire6ent of effectivenesssuggests that the 5rundnor' is a fact# and not a practice or assu6ption. An effective)onstitution is a fact upon &hich the 5rundnor' posts an >ought>. This is not possible&ithout so6e kind of a value 8udg6ent. # As -u6e observes/ >An \ought\ cannot bederived fro6 an \is\ &ithout the j interposition of a value 8udg6ent that the \is\ is

desirable and for that reason \ought to be\.> If *ou take a&a* this value 8udg6ent# then7elsen>s j theor* &ould conceal an ideolog* that \6ight is right\.>

Inspite of its &eaknesses# 7elsen>s theor* produced 6an* i6portant i6plications for legal theor*. e &ill briefl* consider so6e of thos< i6plications. U7elsen>s theor* considers the traditional distinction bet&een public la&> and

private la& as one of degree# &hich even disappears at ti6es.The idea of concretisation developed b* 7elsen is also ver* i6portant in

understanding the legal process. )oncretisation is the process b* &hich nor6s get 6oreand 6ore specific. ro6 the ape3 do&n&ards# the nor6s beco6e increasingl* lessgeneral# and 6ore specific. The distinction bet&een . the legislative# e3ecutive# and 8udicial process thus appears in a ne& light. I The* are all nor6'creating agencies. Thee3ecutive and the 8udiciar* are U seen as steps in the concretisation of nor6s in particular cases.

I!;5

I



Theories of Law III: Pure Theor% of Law

its

I7elsen>s theor* also treats the distinction bet&een substantive la& and procedural la&

as relative# &ith procedural la& assu6ing greater i6portance. 9i6ilarl*# the distinction bet&een propositions of la& and fact also beco6e relative. The finding of fact b* a 8udge



is not necessaril* &hat actuall* happened# but &hat he regards as having happened for the purpose of appl*ing a particular nor6.

7elsen considers the legal order as a nor6ative structure &hich operates so as tocul6inate in the application of sanctions for certain for6s of hu6an behaviour. The ideaof dut* is of its essence. -e 6akes no specific allo&ance for po&ers# &hile liabilit* is

seen as an >e3tra legal pheno6enon>. The concept of>person> &as si6pl* seen as a step inthe process of concretisation. >Person> is a legal conception and 7elsen# therefore# re8ectedthe traditional distinction bet&een >natural> and >8uristic> persons.

The state is vie&ed b* 7elsen as a s*ste6 of hu6an behaviour# and an order of socialco6pulsion. La& is a nor6ative ordering of hu6an behaviour backed b* force# &hich6akes the use of force a 6onopol* of the co66unit*. 9tate and la& are# therefore#identical.

In International La&# 7elsen recognises the e3istence of t&o 5rundnor's# thesupre6ac* of each 6unicipal s*ste6# and the supre6ac* of International La&.

7elsen belongs to the positivist tradition because of his fir6 belief that the 6oral valueof a legal s*ste6 or of an individual la& and its validit* as la& are separate things.

alidit* is in no &a* concerned &ith content. A la& is valid because it is created in acertain &a*. hile thus e3cluding uestions of 6oralit* fro6 validit*# 7elsen see6s toforget that a legal order is not 6erel* the su6 total of la&s# but involves doctrines# principles and standards# all of &hich are accepted as legal and &hich influence theapplication of rules. Their validit* is not traceable to the 5rundnor'* Are the*# then# to be lu6ped &ith values and banished fro6 a theor* of la&F

The concretisation of general nor6s# &hether b* the ad6inistrator or the 8udge# is not a6echanical process as 7elsen presented it to be. It involves choice either in decision or

interpretation. -o&ever# the uestion lis ho& should an ad6inistrator or 8udge 6ake the



choiceF It is co66on kno&ledge that the choice is guided b* value considerations. Tothe e3tent that these considerations are left out# 7elsen>s theor* offers onl* an inco6pleteand partial version of the legal process.

I

/43



Lecture !,

)"eories o& La! ('- Le$a0 Rea0ism

The &ord >realis6> has 6ultiple 6eanings# depending upon the conte3t in &hich it isused. In 8urisprudence# &hen &e speak of realis6 &e generall* 6ean a school of thoughtrepresented b* so6e 8urists in the Q9A# &hich is 6ore specificall* called A6ericanrealis6>. There is also another school of 8urisprudential thought kno&n as >9candinavianrealis6># &hich &e &ill . discuss to&ards the end of this lecture. I e use the &ord>realis6> here to 6ean >relating to the real &orld# the &orld as it actuall* operates>. Itcarries the idea of being practical# do&n to earth# and prag6atic. As a theor* it indicatesthe testing of theories b* 6easuring the6 against &hat is observed in the &orld# and

dis6issing theories that fail to 6atch the recorded facts.

,merican Rea0ism

The 6ost pro6inent 8urists &ho belong to &hat is described as A6erican realis6 areCliver endell -ol6es# ero6e rank# ohn )hip6an +ra*# and 7arl Lle&ell*n. Their &ritings scattered over 6an* books and 8ournals# e3tending over 6ore than a centur*#do not reveal a corpus of agreed opinion# a central creed# or a consensus. hat 8ustifies bringing the6 all under the co66on label of realis6 is a co66on characteristic# viH# adeter6ination to look at the la& &ith open e*es# to look# not at the la& in books# but atthe la& as it actuall* operated in ever* da* practice. Thus# &e 6a* ver* &ell sa* thatalthough &e do not find a shared vie& in rhe &ritings of these 8urists# there is certainl*a shared attitude# a shared approach.

The core of A6erican realis6 is brought out b* -ol6es> definition of la&. To theuestion &hat constitutes the la&# -ol6es re8ects the ans&er given b* so6e te3t &riters

that it is a s*ste6 of reason# or a deducrion fro6 principles of ethics or ad6itteda7ioms. He prefers to loo" at la& fro6 a bad 6an>s point of view. 1he bad man does nor

care a/out a3io6s or



Lecture !,

)"eories o& La! ('- Le$a0 Rea0ism

The &ord >realis6> has 6ultiple 6eanings# depending upon the conte3t in &hich it isused. In 8urisprudence# &hen &e speak of realis6 &e generall* 6ean a school of thoughtrepresented b* so6e 8urists in the Q9A# &hich is 6ore specificall* called >A6ericanrealis6>. There is also another school of 8urisprudential thought kno&n as >9candinavianrealis6># &hich &e &ill discuss to&ards the end of this lecture.

e use the &ord >realis6> here to 6ean >relating to the real &orld# the &orld as itactuall* operates>. It carries the idea of being practical# do&n to earth# and prag6atic. Asa theor* it indicates the testing of theories b* 6easuring the6 against &hat is observed in

the &orld# and dis6issing theories that fail to 6atch the recorded facts.

,merican Rea0ism

The 6ost pro6inent 8urists &ho belong to &hat is described as A6erican realis6 areCliver endell -ol6es# ero6e rank# ohn )hip6an +ra*# and 7arl Lle&ell*n. Their &ritings scattered over 6an* books and 8ournals# e3tending over 6ore than a centur*# donot reveal a corpus of agreed opinion# a central creed# or a consensus. hat 8ustifies bringing the6 all under the co66on label of realis6 is a co66on characteristic# viH# adeter6ination to look at the la& &ith open e*es# to look# not at the la& in books# but atthe la& as it actuall* operated in ever* da* practice. Thus# &e 6a* ver* &ell sa* thatalthough &e do not find a shared vie& in the &ritings of these 8urists# there is certainl* ashared attitude# a shared approach.

The core of A6erican realis6 is brought out b* -ol6es> definition of la&. To theuestion &hat constitutes the la&# -ol6es re8ects the ans&er given b* so6e te3t &riters

that it is a s*ste6 of reason# or a deduction fro6 i principles of ethics or ad6itted a3io6s.-e prefers to look at la& fro6 a I bad 6an>s point of vie&. The bad 6an does not care

about a3io6s or






deductions# but is interested onl* in kno&ing &kat the courts are likel* to do in fact.-ol6es concludes/ >The prophecies of &hat the courts &ill do $n &act= and notîvrvg6ore pretentious# are &iat ! 6ean b* tie a&.>

Are *ou confusedF Do *ou find this definition of la& as >the prophecies of &hat thecourts &ill do in fact> a negation of &hatever ideas *ou had for6ed in *our 6ind aboutla&F In order to understand the realist approach to la& a little better# let us consider thefollo&ing situation/ Three students are e3pelled fro6 a school because the* refused tosing the national anthe6 along &ith other students in the school asse6bl*. There &as agovern6ent circular stating that all students 6ust sing the national anthe6 together inthe school asse6bl*. ustif*ing their refusal to sing the national anthe6 along &ith other students# the e3pelled students said that the* belonged to a particular religious sect&hich prohibited the singing of an* song in praise of an*one e3cept +od. Their parentshad also told the6 that it &ould be contrar* to their religious faith if the* 8oin thesinging of the national anthe6. The students challenged the validit* of their e3pulsion

fro6 school on the ground that the freedo6 to profess and practice religion is aunda6ental Right guaranteed to the6 b* the )onstitution of India. The govern6ent#ho&ever# argued that lo*alt* to the nation is of para6ount i6portance and unda6entalRights are not absolute rights. It &as also pointed out that there &as a unda6entalDut* in the )onstitution to respect the national anthe6.

The uestion &hich arises is as to &hat is the la& to be applied in the aforesaidsituationF )an *ou cite a rule# using &hich the validit* of the e3pulsion order could bedeter6inedF The realit* is that until the court decides the 6atter# no one is certain aboutthe rule.

The above'referred facts are taken fro6 a fa6ous case 9i&oe E''anuelv State of

=erala*2 In this case# the 9upre6e )ourt held that the students &ere e3ercising their

unda6ental Right to freedo6 of religion# and their e3pulsion &as &rong. The courtobserved that the uestion is >not &hether j a particular religious belief or practiceappeals to our reason or senti6ent I but &hether the belief is generall* andconscientiousl* held as part of the profession or practice of religion. The students# thecourt said# sho&ed due respect to the national anthe6 b* standing up &hen it &as sung#and the* did not sho& an* disrespect b* not 8oining in the singing. If &e follo& therealist approach# &e 6a* sa* that until the 9upre6e )ourt pronounced the 8udg6ent in 9i&oe E''anuel# there &as reall* no rule to settle the uestion &e had raised earlier. If the e3pelled students approach a la&*er and ask hi6 &hether the* &ill succeed if the*challenge the e3pulsion

/ ,(R /983 S+ 38.

/5





1heories of Law 1!- Le#al :ealism

order# the la&*er &ill not be able to give a categorical ans&erG but can onl* 6ake a prediction. hen -ol6es defines la& as >the prophecies of &hat the courts &ill do in

bet># &hat he 6eans is that the la& re6ains uncertain and unsettled until the court>sdecision. After going through the facts and decision in i'oe Ammanuel, one canconclude that there is an ele6ent of truth in &hat -ol6es sa*s.

-ol6es &as a great 8udge# and so &as ero6e rank# &hose se6inal &ork , added ne&di6ensions to legal realis6. -is anal*sis of la& fro6 a ps*cho'anal*tical point of vie&is ver* interesting. -e described legal certaint*# so valued b* la&*ers and 8udges# a6*th. The desire for certaint* &as si6ilar to >father co6ple3> in a child# ie# a craving for infallible authorit*. rank accepted rules of la& as one of the bases of the 8udge>sdecision. udicial decisions are conditioned b* e6otions# intuitive hunches# pre8udices#te6pers# and other irrational factors. Ter6ing court decisions as ver* uncertain andal6ost unpredictable# rank said# >No one kno&s the la& about an* case or &ith respect

to an* given situation# transaction or event# until there has been a specific decision(8udg6ent# order or decision &ith regard thereto>. This uncertaint* is not to be deplored# but is of i66ense social value. A &ise and creative 8udge# unfettered b* paragraphs inthe code and precedents# &ill find 8ustice through a clear and cool perception andvaluation of the social issues at stake. rank co6pared such a 8udge to the Philosopher'7ing of Plato>s Republic.ero6e rank>s thesis that there are no settled rules and that rules are al&a*s uncertain#

is called rule'scepticis6. In his later &ritings rank also reveals &hat is called fact'scepticis6# because he found innu6erable sources of error in the deter6ination of facts b* trial courts. Let us no& tr* to understand these sources of error in rank>s o&n &ords#>There 6a* be per8ured &itness# coached &itnesses# biased &itnesses# &itnesses 6istaken

I in their observation of the fact as to &hich the* testif*# or in their 6e6or* of their observations# 6issing or dead &itnesses# 6issing or destro*ed docu6ents# crookedla&*ers# stupid la&*ers# stupid 8urors# pre8udiced 8urors# un'attentive 8urors# trial 8udges&ho are stupid or bigoted and biased or >fi3ed> or inattentive to the testi6on*> f As aresult# the 8udge has virtuall* uncontrolled and uncontrollable fact discretion. hatever refor6s &e 6a* introduce in the trial process# rank believed that there &ill still re6ain alarge ele6ent of irrationalit*# chance and guess &ork in 8udicial fact finding# 6aking predictabilit* of the outco6e of la& suits i6possible.

The realist 6ove6ent held that the develop6ent of la& does not consist of 6ere6echanical deduction of conclusions fro6 pre6ises# but 6ust

, Law and the $ode' $ind# !1;%.

!"!is.



involve a process of creating ne& rules to deal &ith ne& situations# &here a choice bet&een co6peting alternatives had to be 6ade b* reference to social# 6oral# political#and other factors. As -ol6es put it# >the life of the la& has not been logic# it has beene3perience>. +ra*# another i6portant 8urist of the realist school# observed that courts putlife into the dead &ords of the statute. <

This approach# as alread* noticed# is a repudiation of the declarator* theor* of precedent.e 6ust# at this point# 6ake a reference to the vie&s of )ardoHo# a celebrated 8urist

8udge# although he does not belong to the realist school. )ardoHo 6ade a co6prehensiveanal*sis of the 8udicial process. Qnder the great influence of sociological 8urisprudenceand driven b* an ethical idealis6# he e6phasised the necessit* of 8udicial alertness tosocial realities# because the 8udicial process involves an ele6ent of creation# and anele6ent of discover*. )ardoHo asserted that considerations of social polic* loo6 large inthe art of ad8udication# and choice is inherent and inevitable in 8udicial decisions. -e thenraised the crucial uestion/ ho& does a 8udge 6ake the choiceF In a highl* readable

book#; &hich is a co6pilation of series of lectures he delivered at the âle Qniversit*#

)ardoHo e3plains the process elaboratel*. The essence of his thesis is the acceptance that 8udicial choice is influenced b* inherited instincts# traditional beliefs# acuiredconvictions# and conceptions of social need. -e said that the rule of adherence to precedent 6ust be rela3ed in situations &hen it &ould clearl* be inconsistent &ith thesense of 8ustice or social &elfare. The need for certaint* 6ust be reconciled &ith the needfor progress. The &ritings of )ardoHo as &ell as the influence of the realist 6ove6ent brought the role of the 8udge# or 6ore specificall* the personalit* of the 8udge# into sharpfocus.

7arl Lle&ell*n# a 8urist &ho belongs to the realist school# through his &ritings shiftedthe focus of inuir* fro6 the stud* of rules to the observanct of the real behaviour of thela&6en# particularl* the 8udge. This is kno&n as the behavioural approach. Lle&ell*n>s

contribution is also i6portant it bringing la& into close contact &ith other socialsciences.)ritics have found fault &ith 6ost of the tenets of A6erican realis6. In response to

-ol6es> definition of la& >as the prophecies of &hat the courts &ill do in fact># the critics point out that 8udicial decision is not a prediction# but a 8udg6ent as to &hat the la& no&is. A piece of legislation is also not a prediction of 8udicial behaviour# but it la*s do&n&hat should be done. e find considerable truth in the criticis6 that decisions creatingne& laJ

4 The ature of the Judicial Process# /97/.

!",



ITheories of Law I@: Le)al ,ealis'

j represent onl* a fraction of the total of la& suits and the 6a8orit* of cases i involve no

point of la&G a still greater nu6ber never reach the courts. ! a8orit* of hu6an

situations governed b* la& produce no litigation. Theconcentration of the realists on court practice alone &as# therefore# consideredas legalistic rather than realistic.

Another criticis6 against the realists has been that the* overstress the uncertaint* and>open te3ture> of language. -o&ever# &e 6ust re6e6ber that this &as done b* therealists to highlight the creative nature of the 8udicial role# and to re8ect the >slot6achine> theor* &hich considered the 8udicial process as 6echanical. The realist6ove6ent asserted that 8udicial decisions often involved value 8udg6ents on uestionsof polic*. The* 8ustified reliance of 8udges on e3pert evidence and data dra&n fro6social sciences# as it &ould enable the6 to adapt la& to changing social needs. ( Inspiteof the criticis6# the realist 6ove6ent produced a significant i6pact on legal theor*.

$ecause of its close affinit* to the sociological U approach# 6an* people consider it as aradical &ing of the sociological school. Realis6 6eans a conception of la& in flu3 andas a 6eans to social ends# so that an* part of it is to be e3a6ined for its purpose andeffect. It i6plies a concept of societ* &hich changes faster than the la&. It recognisesthat la& is both a result of social forces# and an instru6ent of social control. -o&ever#the realists &ere 6ore concerned &ith a scientific observation of the la& in its 6aking#&orking and effect# &hereas the sociological school had other concerns too# as &e havealread* seen in the previous lecture.

The realist 6ove6ent 6ust also be seen as an atte6pt to rationalise and 6odernisethe la&s b* utilising scientific 6ethods and the results reached in those fields of sociallife# &ith &hich la& is inevitabl* linked. It thus introduced a scientific approach and

e6pirical 6ethods into the stud* of la&.A6erican realis6 is also seen as a counterpart of the continental 6ove6ent of the>living la&># the principal e3ponent of &hich is Ehrlich. -o&ever# there is a differencein e6phasis. hile the realists place the decisions of court at the centre of the la&#Ehrlich devotes his attention to the >living la&># the bod* of rules of conduct# and habits6ost of &hich never co6e before the courts.

The uestion is ho& is realist 8urisprudence related to other schools of 8urisprudenceand approachesF e 6a* sa* that it for6s part of a sociological approach to la&. It isnot a substitute for# but a supple6ent to anal*tical# historical# and ethical 8urisprudence. The 6eeting point of ethical 8urisprudence and realist 8urisprudence isthe ad6ission that the search for 8ustice is a para6ount concern of la&.

!";




Scandina:ian Rea0ism

ost of the discussions on legal realis6 focus on A6erican realis6# but there is another

school of realis6# kno&n as 9candinavian realis6# &hich also deserves our attention because of its contribution to legal theor*. A6erican realis6 is the product of a prag6atic and behavioural approach to social institutions. $* contrast# 9candinavianrealis6 is essentiall* a philosophical critiue of the 6etaph*sical foundation of la&.-agerstro6 is considered as the founder of the 9candinavian realist 6ove6ent. -isdoctrines &ere further elaborated b* his disciple Lundstedt. T&o other leadingrepresentatives of the 6ove6ent are 7arl Clivecrona# and Alf Ross.

hat &e find in 9candinavian realis6 is a total re8ection of natural la& philosoph*#and of an* absolute idea of 8ustice as controlling and directing an* positive s*ste6 of la&. 9candinavian realists are relativists in the sense that the* den* that rules of legalconduct can be co6pletel* derived fro6 i66utable principles of 8ustice.

The 6ost i6portant contribution of this school is its criticis6 of a >collective> or >general> &ill or of a >&ill of the state># as a 6*stical concept that tends to legiti6ise theo6nipotence of those in co66and of the 6achiner* of the state. 9candinavian realists donot den* the validit* or the realit* of la& as a bod* of>rules about force# rules &hichcontain patterns of conduct for the e3ercise of force.> In their vie&# positive rights are no6ore real then natural rights# e3cept that the* have a >corollar*> in an actual securit*# andan actual po&er in conseuence of the regular functioning of the legal 6achiner*.

Clivecrona did not agree &ith the idea of rules as co66ands of the state. -esubstituted the concept of >independent i6peratives> for co66ands. La& is infact a bod*of rules about the use of organised force# &ithout &hich co66unit* life is unthinkable. Itis obe*ed b* the fear of force rather than b* the direct use of it because the rules of la&are a bod* of >independent i6peratives> respecting the organised force in the co66unit*as long as the* are effectivel* obe*ed.

According to Alf Ross# another leading e3ponent of 9candinavian realis6# the conceptof the validit* of la& co6bined behaviourist and ps*chological aspects. -e saidG >In theconcept of validit* t&o parts are involved/ partiall* the out&ard# observable and regular co6pliance &ith the patterns of action and partl* the e3perience of these patterns of action as being a sociall* binding nor6>.

Lundstedt defined la& as >the ver* life of 6ankind in organised groups and conditions&hich 6ake possible peaceful coe3istence of 6asses of individual and social groups andthe co'operation for other ends than 6ere

!""



)

Theories of Law I@: Le)al ,ealis'

e3istence and propagation>. The feelings of 8ustice are guided

and directed b* the la&s as enforced# ie# as 6aintained. La& atan* particular ti6e# andnt in an* particular societ* is deter6ined b* >social &elfare>.Gh An overall evaluation of 9candinavian realis6 reveals that its critical*. aspects are 6ore significant than its positive achieve6ents. It de6onstrated/h that an* legal order 6ust be conditioned upon a certain scale of values#a &hich can be assessed not in absolute ter6s# but &ith regard to the needsS6 changing &ith ti6es# nations# and circu6stances. Irrespective of &hether lis la& is described as a fact# as a 6achiner* of action# or in an* other 6anner#ier it is directed to certain ends.iss. inall*# to the credit of the 9candinavian realists# it is pertinent to note

a& that the* dre& our attention to&ards the need to take into account theing possibilit* that ps*chological influences 6a* be at &ork in the operationnse of the la&.

Dm

fa ept the Y or Grnsnoan ling

the

for Srce# ir of od*the

lis6# #gical tiall* ction ciall*

roups Ges of 6ere

/1

(







Lecture /4

odern )rends and )"eories

e have alread* discussed ho& various theories atte6pt to define la&# and e3plain itsfunctioning. It &as also our endeavour to understand ho& the approaches of other disciplines# especiall* histor*# econo6ics and sociolog*# can enrich our vision of la&. It isi6portant to re6e6ber that these approaches and theories are constantl* being re'e3a6ined and re'interpreted b* scholars. Ne& critiues e6erge# provoking ne&responses. Ne& di6ensions are added to old theories. )hanges in econo6ic# social and political relations# advance6ent in various fields of kno&ledge# and develop6ent inscience and technolog* produce their i6pact on la&. In short# legal theor* like an* other

branch of kno&ledge never re6ains static. It is# therefore# necessar* that a student of la&keeps hi6self abreast &ith the current develop6ents in his field of stud*. This lecture is 8ust an introduction to so6e of the 6odern trends and theories# &hich are consideredsignificant fro6 a 8urisprudential perspective.

+ritica0 Le$a0 Studies

)ritical Legal 9tudies ()L9 6ove6ent e6erged in the !12%s. The driving force behindthis 6ove6ent &as a dissatisfaction &ith the e3isting legal theories. It &as an atte6pt tooffer a radical alternative to established legal theories. e find that 8urists &ho areidentified &ith the )L9 6ove6ent constitute a diverse group. Despite differences of opinion# co66it6ent to a 6ore egalitarian societ* binds the6 together.

9o6e people consider )L9 as a continuation of legal realis6. -o&ever# the ob8ectivesof )L9 are 6uch &ider# and &e can see a greater concern &ith the politics of la&>.Realis6 sa& legal reasoning as autono6ous and distinct. -o&ever# )L9 does not acceptthe distinction bet&een legal reasoning# and political debate. )L9 also re8ects theenterprise of presenting




/

a value'free 6odel of la&. According to )L9# la& is politicsG la& does not have ane3istence outside the ideological battles &ithin societ*.

)L9 is highl* critical of liberal legal theor* in &hich the* include the theories of positivis6 propounded b* -art and 7elsen# and also the rights based theories of D&orkin# Ra&ls# and innis. Liberal legal theor* clai6s to be a politicall* neutral andob8ective &a* to resolve conflicts. )L9 denies this clai6 and states that the liberal legaltheor* is a conflict'ridden structure beneath its purportedl* ob8ective e3terior# &hichconceals the political 8udg6ent and po&er structures &ithin the la&.

The si6ilarities bet&een )L9 and the ideas developed b* ar3ists# U especiall* 6odernar3ist &riters like +ra6sci and )ollins# cannot escape J our attention. -o&ever# )L9re8ects the theor* of instru6entalis6# and of la& as superstructure. Duncan 7enned*# a

leading e3ponent of )L9# is of .. the vie& that la& cannot be usefull* understood as asuperstructure. -e observes/

Le$a0 ru0es t"at t"e state en&orces and 0e$a0 concepts t"at permeate a00 aspects o&

socia0 t"ou$"t constitute capita0ism as !e00 as respondin$ to t"e interests t"at

operate !it"in it. La! is an aspect o& t"e socia0 tota0ity= not <ust t"e tai0 o& t"e

do$./ <

Liberal legal theor* portra*s la& as rational# coherent# necessar*# and 8ust. )L9 re8ectsall these# and asserts that la& is arbitrar*# contingent# unnecessar*# and profoundl*un8ust. According to )L9# the basic civil and political rights &hick are purportedl* based

on the concept of the freedo6 of the individual# actuall* serve the political and econo6icreuire6ents of liberalis6. reedo6 of contract# for instance# is not a liberating concept# but one that ties individuals to the 6arket place# and serves the basic ai6s of capitalis6.All the la&s in liberal societ* serve political ends and are >politics in disguise>. e findclose si6ilarit* bet&een the idea that people accept liberal philosoph*# because the*think it is true# put for&ard b* )L9# and the ar3ist idea of class consciousness &herethe victi6s of capitalis6 e6brace the ideolog* that is responsible for their situation.

Roberto Qnger# another leading e3ponent of )L9# is noted for his attack on legalfor6alis6# and his anal*sis of la& and societ*. Qnger argues that legal ad8udication is purel* arbitrar*# and used for political purposes to further the needs of the po&erful andthe persuasive in the societ*. The legal process &ith its surface of neutralit* and fairness

serves to slo&do&n an* process of change. The legal s*ste6 si6pl* reinforces the statusuo and blocks an* t*pe of revolution# irrespective of &hether it is violent# &ithinsociet*. -e re8ects the concepts of fi3it* in societ*# e6bodied in the

/ The Politics of Law: ! Pro)ressive CritiOue# Ped D KairysQ= /995= p 3.

/8







These are rights &hich give legal for6 to relations of reliance and sense# and for6 part of a set of social relations enabling people to enact a 6ore defensible version of the co66unal ideal than an* version currentl* available to the6.

Qnfortunatel*# &e do not get a clear picture of the nature# e3tent and protection of these

rights in Lingers &ritings. Qnger sees the present constitutional structure as too rigid and pro6oting confrontation and alienation. -e suggests re6odelling it &ith a >6ultiplicationof overlapping po&ers and functions>. This &ill lead to the diffusion of po&er to allindividuals instead of a class of po&erful individuals at the top of the e3isting hierarchies&ithin the societ*. As a conseuence of this# individuals &ill get 6ore opportunities toengage in transfor6ative acti:ity= and to change societ* fro6 being based onindividualit* to being based on co66unit*. Qnger>s progra66e of re6odelling &ouldinvolve the abolition of the traditional doctrine of separation of po&ers.



/

(

/9




The reconstruction of the econo6*# according to Qnger# begins &ith the re8ection of thecurrent private rights set up of advanced &estern countries. Ineualities are inherent insuch a s*ste6 based on the concept < of consolidated propert* rights. Qnger proposes a

perpetual innovation > 6achine# the pri6ar* e3a6ple of &hich is a rotating capital fund.hat is re6arkable about Qnger is that he 6akes us think of a different societ* &hich&ill overco6e the contradictions and unfairness of current &estern societ*. -e offers analternative to current structures in societ* and philosoph*. (

Another i6portant aspect of )L9 &hich deserves our attention is its critiue of legalreasoning. The attention of both A6erican realis6 and )L9 converge on the e3istence of e3ternal factors that operate on a 8udge. -o&ever# the i6portance of these e3ternalfactors &as perceived differentl* b* realis6 and )L9. The realists recognised that legalreasoning and rules pla*ed a part# though 6inor# in a 8udge>s decision. )L9# on the other hand# holds that these e3ternal factors are the sole operative factors in the 8udg6ent. Thisis not e3plained as reflecting the econo6ic relations &ithin societ* in ar3ist

ter6inolog*. )L9 e3plains this in ter6s of 8udicial values# and choice of a politicalnature. D 7air*s# &ho e3plains this proposition &ith reference to so6e decisions of theA6erican 9upre6e )ourt on freedo6 of speech concludes that >none of these cases &asor could be decided &ithout ulti6ate reference to values and choices of a politicalnature>. -e states that these cases also de6onstrate a central deception of traditional 8urisprudence that the 8udg6ent is >the product of distinctl* legal reasoning# of a neutralob8ective application of legal e3pertise>. )L9 does not provide us an accurate descriptionor assess6ent of e3ternal factors &hich are responsible for a 8udicial decision. The*assert that 8udges share social and political assu6ptions or ideologies &hich# because of their background# lead the6 to 6ake consistent decisions that reinforce the liberal order in &hich the* operate.

The &ritings of 8urists belonging to the )L9 6ove6ent reveal the underl*ingcontradictions in la& and deep'rooted hierarchies of po&er that are hidden beneath theneutral e3terior of la&. $elieving that la& operates to facilitate discri6ination ande3ploitation# their atte6pt is to deconstruct la& and legal language. De'constructiontakes three for6s/ (i trashingG (ii de'legiti6ationG and (iii de'reification. Trashing isessentiall* ai6ed at revealing the illegiti6ate hierarch* or po&er structures that e3ist&ithin the la&# and societ* in general. The hierarch* of po&er# )L9 e3plains# is not sosi6ple as &e find in the ar3ist anal*sis in ter6s of classes. It is 6uch 6ore co6ple3#and is found at ever* level. De'legiti6ation is ai6ed at e3posing one of the 6osti6portant functions of la& in a liberal societ*#

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$odern Trends and Theories

r# begins &ith need &estern % the concept lal innovation fund. hat is fferent societ*urrent &estern n societ* and

ittention is its in realis6 and ue on a 8udge# ived differentl* ning and rules # on the other /factors in the elations &ithin 8udicial values# ais proposition urt on freedo6 lecided&ithout ure>. -e states of traditional legal reasoning# Ses not provide tors &hich are haresocial and ir background# liberal order in

ent reveal the /hies of po&er eving that la& r atte6pt is to iree for6s/ (i ig is essentiall*tures that e3ist = )L9 e3plains# of classes. It is lation is ai6ed liberal societ*#

viH# the legiti6ation of the socio'econo6ic s*ste6s of that societ*. )L9 atte6pts to stripa&a* the veneer of legiti6ac* to reveal the ideological underpinnings of the legal s*ste6.In order to understand de'reification &e 6ust first understand the 6eaning of reification.

P +abel e3plains that reification involves a gradual process &hereb* abstractionsoriginall* tied to concrete situations are used to operate instead of the concrete situations.The abstraction or concept takes on the for6 of a thing. This process is clouded in legal6*stification# 6aking people 6istake the abstraction for the concrete. )oncepts like6ortgage# consideration# trust# &ill# etc# take on a life of their o&n# and beco6e totall*divorced fro6 their original conception. According to 9 Russell# legal reification >is6ore than 8ust distortion/ it is also a for6 of coercion in the guise of passive acceptanceof the e3isting &orld &ithin the fra6e&ork of capitalis6>. De'reification is therecognition and e3position of such fallacies# to reveal the la& as it reall* is.

Is )L9 then a 6ove6ent to attack# criticise and deconstruct all the e3isting theories of la&F Does it have an*thing positive to offerF ro6 the &ritings of )L9 scholars a theor*

of la& e6erges &hich &e 6a* call the >constitutive theor*> in tune &ith the &ider post'6odernist perspective that ideas# and not the econo6ic base# constitute societ*. )L9 pro8ects the idea that la& pla*s an i6portant role in shaping societ*. This approach

radicall* differs fro6 the ar3ist approach. According to 7air*s# > la& is not si6pl* anar6ed receptacle for values and priorities deter6ined else&hereG it is a part of a co6ple3

social totalit* in &hich it constitutes as &ell as is constituted# shapes as &ell as is shaped>.Cnce &e accept the perspective that ideas constitute societ*# it follo&s that there 6ust be

a convergence of ideas including ideas and beliefs about la&# if there is to be so6e sort of order in societ*. This &e 6a* call a shared &orld vie&. The ai6 of )L9 is to attack theshared &orld vie& e6bedded in legal consciousness# to reveal its link to do6ination in

capitalist legal societ*# and to change that consciousness. A &ell'kno&n )L9 scholar# D

Trubeck# dra&s our attention to the difficulties involved in changing that consciousness because the constitutive po&er of the do6inant shared &orld vie& is grounded on its

clai6 to be the truth. Its constitutive force can be under6ined onl* if this clai6 can berefuted. The onl* 6ethod to refute the shared &orld vie& that the liberal order is the true

and natural s*ste6 is to sho& that there are other alternative &a*s &hich &ould not resultin e3ploitation and in8ustice.

inall*# it is also pertinent to note the concern of )L9 &ith critical legal education.Alan Tho6son provides a useful introduction &ith reference to the teaching of contract



la&. A traditional course on la& of contracts in la&

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Lectures i n Jurisprudence

schools# based on standard te3tbooks# statutes and case la&# serves the ideological

function of reinforcing the conception that la& is neutral# self' contained# that it cannot bechallenged# and that it is a product of reasoned anal*sis. The inevitable acceptance of thelegiti6ac* of this conception of la& b* la& students assures the continuit* of thedo6inant# liberal# legal ideolog*. The students upon beco6ing la&*ers# 8udges# or acade6icians &ill perpetuate the ideolog*. If this is to be avoided# Tho6son suggests thata critical course in contract la& should diverge as 6uch as possible fro6 the standardte3ts and authoritative 6aterials# and students should e3a6ine the pri6ar* 6aterialsthe6selves. Not onl* the decisions of appellate courts# but cases at first instance andfor6ation of contracts in practice should also for6 part of the course. This &ill reveal the po&er relationships to be found in ever* contract# and the uncertainties of contract la&.The student &ill begin to realise ho& the i6ager* of la&# as found in the freedo6 of

contract# serves to den* the oppressive character of the 6arket place and the lack of real personal libert*# e3perienced b* people. )ritical legal education# in Tho6son>s &ords#6ust bring into sight >e3actl* &hat the te3tbooks suppress>.

%ost>modern Le$a0 )"eory =

Post'6odernis6 challenges the liberal orthodo3* that societ* has a natural structure# andhistor* is a process of evolution to&ards that truth. The assertion of uku*a6a thathistor* has co6e to an end since the entire &orld had converted to free 6arket capitalis6and liberal de6ocrac*# is re8ected b* post'6odernists. Liberalis6 and capitalis6 are seenas 6a8or co6ponents of 6odernit*. Post'6odernists characterise 6odernit* as >an ironcage of bureaucratisation# centralisation and the infinite 6anipulation of ps*che b* theculture industr* and the disciplinar* 6achines of po&er and kno&ledge>. The* believethat 6odernit*>s structures# its la&s# its literature# its architecture# its arts or an* of its products are sub8ect to deconstruction# a process &hich reveals a nu6ber of alternatives.The* do not believe that societ* contains an* ob8ective truth or natural la&s upon &hichit can be grounded.

e 6a* trace the origins of post'6odernis6 in la& in the funda6ental tenet of legalrealis6 that la& is an instru6ent of polic*# and the )L9 vie& that all la& is politics. The6ain plank of post'6odern legal theor* is its re8ection of the structured# logical andinternall* consistent picture of societ*# and la& &hich &e find in -art>s theor* of la& as aunion of pri6ar* and secondar* rules# and in 7elsen>s p*ra6id of nor6s. No&# &e &illtr* to find out through a brief anal*sis of so6e i6portant post'6odernist &ritings

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/


v# ser:es t"e neutra0= se0&t o& reasoned onception o& 0i;era0= 0e$a0 icademicians son

su$$ests h as possi;0e dents s"ou0d decisions o&

contracts in a0 t"e po!er es o& contract = as &ound in racter o& t"e -d ;y peop0e.

si$"t exact0y

"as a natura0 it trut". )"e ice t"e entire democracy= is een as ma<or iernity as an

manipu0ation #nes o& po!er = its 0a!s= its re su;<ect to i:es. )"ey do ra0 0a!s upon

- &undamenta0 t"e +LS :ie! / t"eory is its -ure o& society= & primary and !e !i00 try

to -rnist !ritin$s

!"et"er it can o&&er an a0ternati:e to t"e ri$id= ar;itrary normati:e structure o& t"e

0i;era0 0e$a0 system.

)"e !ritin$s o& ic"ae0 *oucau0t and JacFues Derrida deser:e our attention=

a0t"ou$" t"ey are not academic 0a!yers= ;ecause o& t"eir tremendous impact on

0e$a0 t"eory. *oucau0ts neo>arxism s"ares !it" post>modernism an emp"asis on

t"e s"i&tin$ re0ations"ips ;et!een se0& and ot"er. )"e ot"er appears to ;e t"e

indi:idua0 !"o is outside t"e system= !"o is disad:anta$ed ;y it. )"e ot"ers cannot

assert t"at t"e 0a! is on t"eir side !it"in t"e current situations since t"e systema0ienates t"em. %ost>modernism reco$nises t"at t"ey "a:e an eFua0 c0aim to

consideration since t"eir assertions are no 0ess :a0id t"an t"ose !"o are ad:anta$ed

;y t"e system or no 0ess :a0id t"an e:en t"e :ie!s o& 0a!yers= <ud$es= or po0iticians.

)"e post>modernist concern !it" t"e ot"er "as de&inite0y "e0ped to $i:e an impetus

to t"e c0aims o& disad:anta$ed $roups 0ike !omen= ;0acks= and tri;a0s !it"in 0a!.

2o!e:er= to !"at extent and in !"at manner t"e 0a! s"ou0d seek to accommodate

t"eir c0aims is not c0ear0y ;rou$"t out in post>modernist !ritin$s.

Derridas deconstruction= t"ou$" ori$ina00y app0ied to 0an$ua$e= "ad a pro&ound

in&0uence on 0e$a0 t"eory. Lan$ua$e is a comp0ex !e; o& si$ns and Derrida said= is

metap"orica0. odernism sees t"e &unction o& 0an$ua$e as main0y representationa0

—it depicts t"e !ay t"in$s are. (n ot"er !ords= 0an$ua$e disc0oses t"e re0ations"ip;et!een t"e !ords and t"e !or0d. (n 0an$ua$e= some statements are statements o&

trut" or statements o& &act Pe$= t"is is a c"airQ and some statements are statements o&

opinion Pe$= t"is c"air is ;eauti&u0Q. )"e post>modernists do not accept t"e di:ision o&

0an$ua$e into &act and opinion= ;ut "o0d t"at a00 statements are opinions. )"is is

;ecause 0an$ua$e is in"erent0y indeterminate. E:en a statement 0ike t"is is a c"air=

!"ic" is apparent0y a statement o& &act= t"e postmodernists !ou0d ar$ue= is a

statement o& opinion= ;ecause t"ere is no true meanin$ to t"e concept o& c"air. E:en



!"at appears to ;e a &actua0 statement is= t"us= open to de;ate and deconstruction.

)"e Fuestion no! is as to !"at is t"e re0e:ance o& t"e a;o:e discussion to our

understandin$ o& 0a! ,s !e kno!= in 0a! t"e 0an$ua$e is an a;straction &rom

rea0ity. )ake= &or instance= t"e concepts o& &ami0y and property. (n 0a! t"ey are

remo:ed &rom t"e rea0ity= and a00 de;ates re:o0:e around t"em. %ost>modernists see

a00 statements in 0a! as assertions. (n c"oosin$ ;et!een competin$ assertions= anindi:idua0 !i00 &a:our t"ose !"ic" c0as" 0east !it" e:eryt"in$ e0se t"at "e takes to ;e

true. (ndi:idua0s a$ree !it" t"e ri$"t 0e$a0 propositions ;ecause t"ey &it into t"e

0e$a0 system !"ic" is presumed to ;e ri$"t. )"e !"o0e system is ;ased on dominant

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Lectures in &urisprudence

assertions &hich 6ust ulti6atel* be built on pure ideolog* or po&er. Tl la& and the legals*ste6 thus beco6e self'perpetuating hierarchies.

A 6a8or criticis6 against post'6odernis6 in general and deconstruct in particular is

that it focuses on the negative# >the uncertainties a a6biguities of e3istence>. As aresponse to this criticis6# there has develo8 &ithin post'6odernis6 &hat is called>affir6ative post'6odernis6. $alkin# &ho belongs to this strea6# states thatdeconstruction of lY concepts is not nihilistic. -e continues/

Deconstruction is not a denial of the legiti6ac* of rules and principlesG it is an

affir6ation of hu6an possibilities that have been overlooked or forgotten in thY

privileging of particular legal ideas...$* recalling the ele6ents of hu6an lift

relegated to a 6argin in a given social theor*# deconstructive readings challengi us

to re6ake the do6inant conceptions of our societ*. ,

$alkin also poses the uestion as to &h* do &e &ant to deconstruct h legal doctrineF-e ans&ers that this has 6ainl* to do &ith the pursi 8ustice. e 6ight &ant tode6onstrate that the la& or so6e part ol un8ust. The failure of la& to adeuatel* deal&ith so6e aspect of soci/ 6a* lead to in8ustice. A critical use of deconstruction involves pointini that so6ething is &rong# and arguing that it could and should be i better. $alkinasserts that la& is al&a*s to so6e e3tent and to so6e d un8ust. The onl* &a* of articulating a person>s conception of 8ust through i6perfect la&s. 9uch la&s lead todeconstruction and a 6a la&. This is a continuous process.

It is interesting to e3a6ine ho& post'6odernists vie& the deconstr techniue to de' 8ustif* or de'legiti6ate the liberal )onstitution. od legal theories are built on the ideaof constitutionalis6# the idea of a s governed b* the rule of la& &ith the supre6ac* of la& or the )onsti at the top of the p*ra6id of la&s. The recognition of la& as the ke*e3ercise of po&er facilitates the legiti6ation of the e3ercise of such f3 po&er. P 9chlag&ho calls the practice of liberal 8ustification# a pi constitutional 6*tholog*# e3plains itthus/

The popular narrative recounts the stor* of a sovereign people &ho ir foundational6o6ent established their o&n state b* setting forth in a &ritt constitution the po&ers and li6itations of their govern6ent. The ver* identi content# and character of this govern6ent is established b* the )onstituti itself. In turn# the authorit* of this )onstitution ste6s fro6 the consent of i governed'their acuiescence in a

li6ited surrender of their sovereign po&ei return for the benefits of a li6ited#representative govern6ent.;

7 Deconstructi:e %ractice and Le$a0 )"eory P/983Q 96 Wa0e La! Journa0 34= p

4 )"e Empty +irc0es o& Li;era0 Justi&ication P/993Q 96P/Q ic"i$an La!

Re:ie!

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?odern 1rends and 1heories

9chlag uestions the concept of the consent of people as the basis of the legiti6ac* of the )onstitution. Cnce this concept is accepted# nobod* asks the uestion# as to &hatgave the generation of !2:2 (the *ear in &hich the A6erican )onstitution &as adopted

the authorit* to deli6it freedo6 for all subseuent generations. Ever*one tends to forgetthat in realit* people had not been consulted despite the 6*tholog* of consent. Another &eakness of the consent theor* is that the individual has to either choose the &holes*ste6 or nothing. Cnce consent to the para6ount nor6 is established# this necessaril*entails consent to a &hole series of institutions and practices that are authorised b* the para6ount nor6. 9chlag concludes that liberalis6 is not a rational choice# but onl* ane6otional choice and# therefore# does not have an* superior clai6 to acceptance b*deconstructing the language of liberal constitutionalis6. 9chlag reveals it as alegiti6ating of a political choice that has been 6ade b* certain individuals centuriesago.

The i6portance of 6oving a&a* fro6 6ere deconstruction to&ards reconstruction is

visible in the &ritings of 9antos# &ho realises that 6erel* to criticise the do6inant paradig6# though crucial# is not enough>. e 6ust also define the e6ergent paradig6— an i6portant and difficult task. 9antos recognises that >6odern 6en and &o6en areconfiguration or net&orks of different sub8ectivities>. -e depicts si3 prevalent structuralsub8ectivities arising out of si3 do6inant structural places found in conte6porar*capitalist societ*. The* are the household place# &orkplace# citiHen place# &orld place#6arket place# and co66unit* place. These structural places are the loci of 6a8or po&er for6s circulating

Iin our societ*. In the household place# the contradiction or co6petition is bet&een the

do6inant paradig6 of patriarchal fa6il*# and the G e6ergent paradig6 of the co'operativedo6estic co66unit*. In the &orkplace the co6petition is bet&een the do6inant paradig6 of capitalist e3pansionis6# and the e6ergent paradig6 of eco'socialist

sustainabilit* &hich involves free associations of producers geared to&ards thede6ocratic production of use'values &ithout degrading nature. In the citiHen place# 8

co6petition is bet&een authoritarian and radical de6ocrac*. In radical de6ocrac*# thede6ocratic process is furthered b* the transfor6ation of 8 the relations of po&er into

relations of shared authorit*# despotic la& into de6ocratic la&# and regulator*co66onsense into e6ancipator* co66on sense. The contradiction in the 6arket place is

bet&een the paradig6 of individualistic consu6eris6# and the paradig6 of hu6an needs.In the co66unit* place# the co6petition is bet&een fortress co66unities and a6oeba

co66unit*. In the &orld place# the co6petition is bet&een the paradig6 of uneualdevelop6ent and e3clusive sovereignt*# and the

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paradig6 of de6ocraticall* sustainable develop6ent and reciprocall*> per6eable sovereignt*. 9antos is opti6istic that the e6ergent paradig6 U &illresult in the e6ergence of a ne& s*ste6 of international and I transnational

relations guided b* the principles of cos6opolitanis6 and ! co66on heritageof 6ankind. The influence of ahat6a +andhi and Noa6 )ho6sk* isevidentl* visible in the &ritings of 9antos. The uestion &hether 9antos has been able to give post'6odernis6 the ele6ent of reconstruction it so badl*needed# re6ains debatable. -o&ever# it 6ust be ad6itted to his credit that hisuse of opposing paradig6s# of the structures of 6odernit* and their post'6odernists counterparts dra&n fro6 the / 6argins of societ*# gives an insightinto a possible# fairer alternative.

*eminist Jurisprudence

e6inist 8urisprudence has been inspired and influenced b* the ideas#approaches# and 6ethods of both )L9 and post'6odernist legal theor*# &hich&e have alread* discussed. hile so6e scholars doubt &hether there e3ists aschool of legal thought deserving the title fe6inist 8urisprudence# there areothers &ho consider fe6inist 8urisprudence as representing the 6ost i6portant6odern develop6ent in the anal*sis of la&. (

The uestion is &hat is fe6inist 8urisprudenceF Instead of defining it# &e &ill begin&ith its 6ain concern—the treat6ent of &o6en b* the legal s*ste6# and the perceptionor lack of perception of &o6en>s e3periences and needs in la&. In other &ords# it is thee3tension of the fe6inist perspective to an anal*sis and critiue of la&. e6inis6 vie&s

patriarch* as the 6ain ' reason for the subordination of &o6en. Patriarch* is theordering of societ*under &hich standards—political# econo6ic# legal# social—are set b* and fi3edin the interests of 6en. In such a societ* 6en are 6ore highl* valued / than&o6en. Naturall*# the political structure of that societ* also values U 6en 6orethan &o6en. i

In a patriarchal societ*# e3periences and perspectives of 6ales are the`reference points in relation to &hich the la& is fi3ed. Even &hen la&s are#enacted for &o6en# it is 6en>s understanding of &o6en# their nature# Icapacities# arid e3periences that has infor6ed the la&. In short# la& sees&o6en through the 6ale e*e. An e3a6ple fro6 cri6inal la& &ill illustrate this

point. In the definition of rape given in the Indian Penal )ode# an essentialingredient is the penetration of the vagina b* the penis. This is the 6en>sdefinition of se3# rather than the &o6en>s e3perience of se3ual violation. In

Sa"shi v nion of India#8 the petitioners argued that according

air 755 sc 4166.



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property ri$"ts= access to education and emp0oyment= ri$"t to :ote etc—&eminist

<urisprudence ;e0ie:es t"at t"e system !i00 not ;e &ree &rom $ender ;ias unti0

!omens 0i:es are taken ;y 0a! as serious0y as mens. *eminist <urisprudence may=

t"ere&ore= ;e descri;ed as an approac" !"ic" c"a00en$es t"e ma0e>centric approac"

o& 0e$a0 t"eory and practice= and !"ic" seeks to incorporate &eminist reasonin$ into

0a!= and 0e$a0 sc"o0ars"ip.#e &ind many simi0arities ;et!een t"e approac"es o& &eminist <urisprudence and

+LS. )"ey inc0ude condemnation o& in<ustice= scepticism as to t"e a00e$ed neutra0ity

o& 0a!= t"e purported separation o& 0a! &rom

@ Tu"ara' v State of $aharashtra (!121 , 9EE !";.

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politics# and the role that la& had pla*ed in conferring legiti6ac* on a societ*>s e3istinginstitutions and social ordering. $oth fe6inist 8urisprudence and )L9 share a co66onintention to challenge the e3isting distribution of po&er# but fe6inist 8urisprudence does

not travel the &hole &a* along )L9# because fe6inists allege that )L9 presentsoppression and discri6ination in the abstract 6ostl* fro6 a 6ale perspective# and it looksdo&n upon those proble6s fro6 an acade6ic to&er. e6inis6# on the other hand# looksup&ards fro6 the position of the oppressed &o6en# and is 6ore concrete and specific inits approach. !

The different strands of fe6inis6 have influenced fe6inist 8urisprudence. Liberalfe6inis6 considers liberalis6 as the appropriate &eapon to fight for i6prove6ents inthe position of &o6en. In support of their argu6ent the* cite the e3a6ples of sociallegislation passed b* the $ritish Parlia6ent# and conclude that liberalis6 had clai6edand secured rights for &o6en. Radical fe6inis6 does not share this faith in liberalis6#and considers liberalis6 as inadeuate to 6eet &o6en>s needs. hile the 6ain concern

of liberal fe6inis6 is rights# radical fe6inis6 is not concerned &ith rights in the abstractsense# but &ith the fact of do6ination of &o6en b* 6en. The basic difference bet&eenthese t&o kinds of fe6inis6 6akes their approach to la& different. Liberal fe6inis6# b*and large# accepts the la& and its reasoning process# but radical fe6inis6 re8ects thisapproach# since the reasoning structure of la& corresponds &ith the patterns of socialisation# e3perience and values of a particular group of privileged# educated 6en.The language of neutralit* of la& is seen b* radical fe6inis6 as a device to silence&o6en# and sub6erge a critical a&areness of institutional po&er and do6ination.Radical fe6inis6 seeks to de6*stif* the neutralit* of la&# and to 6ake the la&co6prehend that &o6en>s definitions have been e3cluded and 6arginalised.

The focus of radical fe6inis6 is 6ore on issues that affect &o6en>s private lives.Thus# the* have raised such issues as 6arital rape# failure of the legal s*ste6 torecognise the econo6ic value of the contribution of &o6en in child rearing andhouse&ork# harass6ent# and pornograph*. According to radical fe6inists# abortion is notinfanticide# but an act of self'defence b* a &o6an against the invasion of the >other> inthe shape of the foetus. The* recognise the differences bet&een 6en and &o6en# and ask as to &hat 8ustification e3ists for an* such differences being treated as a reason for &o6en to be disadvantaged and discri6inatedF

Although there are differences# liberal fe6inis6 and radical fe6inis6 cannot betreated as t&o 6utuall* e3clusive co6part6ents. There are so6e areas &here their vie&sconverge. or instance# radical fe6inis6 recognises

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y on a minist existin$ e !"o0e ion and it 0ooks = on t"e 0en= and

rudence. to &i$"t ir$ument r0iament= \ !omen= considers i concern rit" ri$"ts i ;ymen. akes t"eir ts t"e 0a! Cac"= since cia0isation= -ated men. a de:ice to Qna0

po!er -utra0ity o& "a:e ;een

ct !omens e= &ai0ure o& tri;ution o& tono$rap"y= ut an act o& t"e s"ape o& !omen=

and 1 treated as a

ca0 &eminism 0ere are some sin reco$nises

the i6portance of rights'oriented strategies advocated b* liberal fe6inis6 ase6po&ering &o6en in so6e conte3ts.

Another influential school of fe6inis6 is kno&n as cultural fe6inis6. Its basicassu6ptions are different fro6 those of liberal and radical fe6inis6. hile liberalfe6inis6 seeks &o6en as 6ainl* confined to the private sphere and radical fe6inis6sees her as 6an>s se3ual ob8ect# cultural fe6inis6 sees her as caring and connected toothers. According to radical fe6inists# pregnanc* and intercourse i6pl* a violation of &o6en>s privac*# integrit* and life. -o&ever# cultural fe6inists see pregnanc*# child

birth and child rearing as 6atters of celebration# not 6atters of dread and despair. In other &ords# &o6en have a sense of connectedness to others# and to life. This attitude is

e3plained &ith an illustrative reference to dispute resolution. If 6ales are asked to resolvea dispute# the* treat individuals as autono6ous units and in an* dispute the* look for a

rule that covers an issue# to see &hat right each side possesses. In other &ords# the*

follo& an ethics of rights. e6ales# on the other hand# seek solution not in ter6s of rights# but in ter6s of seeking to safeguard relationships. The* do not look for rigid rules# butare &illing to adapt a different solution for each proble6 seeking to safeguard

relationships# revealing a concern for both sides. This is &hat cultural fe6inists call theethics of care. E3tending this approach to la&# cultural fe6inists argue that the refusal of

the legal s*ste6 to protect these values has &eakened the co66unit* as it hasi6poverished &o6en>s life. hat is needed# the* continue# is a restructuring of la& andsociet* to acco66odate the values of nurturing# caring and loving that are traditionall*

associated &ith &o6en.Post'6odernis6# to &hich &e have alread* 6ade a reference# also had its influence on

fe6inis6. Post'6odern fe6inis6 re8ects eualit*# and vie&s it as >a construct that 6ust

be reconstructed>. The idea of a &o6an>s point of vie&# &hich appears in fe6inistliterature# is not acceptable to post6odern fe6inists because the* consider it as a fiction#&hich# in practice# 6erel* serves to bind the individual to her identit*. Practicalsolutions to concrete legal situations involving &o6en are reuired# rather than abstractnotions of the nature of la&. Post'6odern fe6inis6 believes that argu6ents &ith theupholders of a 6ale do6inated 8urisprudence on ter6s of its o&n choosing can never beto the advantage of &o6en as a group.

e6inis6# under &hatever label# shares a co66on ai6—the better6ent of &o6en.





than 6en# or ho& e3isting legal standards and concepts 6ight disadvantagt &o6en. Italso tries to e3pose those features of the legal s*ste6 &hid discri6inate against or are

disadvantageous to &o6en# the 6anner in &hich the* operate# and to suggest corrective6easures. hat see6s to e6erg8is an approach &hich integrates the ethics of rights &ith

the ethics of care# >')hange 6ust occur not onl* in the content of la&s# but also in the

institutions of societ*. The de6and for 6ore representation to &o6en in I the 8udiciar*and la& enforce6ent 6achiner* and for reservation of seats in 1 de6ocratic institutions#including legislatures# 6ust be seen and understood in this perspective.

7atherine T $artlett identifies the follo&ing three basic ele6ents &hich characterisefe6inist legal theor*/ j

(i asking the >&o6en uestion># ie# the e3tent of the presence and i recognition of &o6en>s e3perience in la&G I (ii fe6inist practical reasoning# &hich 6eans a

reasoning &hich I proceeds fro6 conte3t and value difference# and the e3perience of Ithe une6po&eredG and (iii consciousness raising# 6eaning an e3ploration of the

collective e3perience of &o6en through a sharing of individual e3periences.

Qpon these basic ele6ents fe6inist legal theor* seeks to articulate &o6en>s perspective#and thereb* e6po&er &o6en in the future develop6ent of la&. I

Science= )ec"no0o$y= and La!

To sa* that advance6ents in science and technolog* produce their i6pact on la& is tostate the obvious. e find ne& la&s being enacted# e3isting la&s being a6ended# old andne& la&s being re'interpreted in response to scientific and technological advance6ents.hat is not so obvious is the i6pact of all these on basic legal concepts and doctrines# or

on legal theor* itself. This i6pact is not direct and i66ediate# but indirect andincre6ental.The uestion &hether# and if so to &hat e3tent# la& 6ust pla* a regulator* rule vis'a'

vis science has been raised u6pteen ti6es. Those &ho are against such a role being pla*ed b* la& &ant uninhibited develop6ent in the field of science# and &ant the legals*ste6 to leave the scientists free. Those &ho &ant la& to pla* a regulator* role inrelation to science raise a nu6ber of argu6ents founded on ethics# public polic*# andsocietal interests. Too 6uch control# &ill undoubtedl* stifle research and develop6ent inscience. It is euall* true that the absence of an* control &ill 6ake science a

/65




ge ch

ch

G Qre. /hein i in Sod

lich

and

lich /e of

ctive nces.

nen>s nt of

6drankenstein 6onster threatening the ver* survival of societ*. The real uestion#therefore# is not &hether la& 6ust pla* a regulator* role vis'a'vis science# but to &hate3tent and in furtherance of &hat interests should la& regulate scienceF

It is also i6portant to re6e6ber that the intervention of la& is not al&a*s as aregulator* 6echanis6. La& also pla*s the role of a facilitator# pro6oter# or protector of scientific research and develop6ent. hen la& recognises intellectual propert* rights as

&orth* of legal protection# it protects a ne& scientific invention through patent la&# or e3tends the protection of cop*right la& to co6puter progra66es.The inter'relationship bet&een science and la& is too co6plicated and elaborate a

sub8ect# and is be*ond the scope of our present discussion. hat is intended is onl* auick glance at so6e recent develop6ents in the field of science and technolog*# andtheir i6plications for la& in order to reveal the co6ple3ities as &ell as potentialities of this relationship.

hat co6es to our 6ind at once are the advance6ents in co66unication and



infor6ation technolog*# and the challenges &hich the* pose to the la&. hat can the la&do &hen a co6puter virus corrupts or destro*s the data stored in *our co6puterF Is our conventional cri6inal la& capable of dealing &ith a situation &hen pornographic6aterial is put on a &ebsite &hich is easil* accessible to childrenF If so6eone>s nude photograph is displa*ed on a &ebsite# can that person bring it under an* e3isting cri6inal

offenceF Even if &e succeed in 6aking such acts legall* punishable as cri6es b*e3panding the definition of so6e offences or creating ne& ones# uestions of enforce6ent and 8urisdiction loo6 large. Cn one hand# &e find the inabilit* of legislationto keep pace &ith the fast 6oving technological advance6ents# and on the other hand#the incapabilit* of traditional 6ethods of la& enforce6ent and ad8udication to cope &iththe proble6s thro&n up b* such advance6ents.

Advance6ents in 6edical science also raise several co6plicated uestions for la&. or instance# ne& assisted reproductive techniues &hich include surrogac*# in'vitrofertilisation# assisted inse6ination etc# give a 8olt to conventional notions e6plo*ed b*la&# such as legiti6ac*# inheritance# and even adulter*. hen 6edical science 6akestransplantation of hu6an organs possible# la& intervenes to prevent its

co66ercialisation. Thus# the Transplantation of -u6an Crgans Act !11"# i6posesseveral restrictions on donating hu6an organs. -o&ever# *ou 6a* ver* &ell ask/ >I a6an autono6ous person and have full rights over 6* bod*. Then &h* should la& interfere&ith 6* right to donate or even sell 6* kidne*F>

+enetic engineering is another field# &here rapid advance6ents are taking place. The-u6an +eno6e Pro8ect is considered as the 6ost a6bitious



(

!5!



and e3pensive research pro8ect ever to be undertaken b* 6an. Ani6als have beensuccessfull* cloned# and hu6an cloning is alread* a realit* if &e are to believe so6escientists# or is soon going to be a realit*. The 6anner in &hich (i e3isting legal conceptsand doctrines are going to be affected b* these changesG and (ii la& &ill respond to thene& challenges# re6ains to be seen.

Advance6ents in the field of biotechnolog* present another potential area of challengeto la&. or instance# it is no& possible b* the use of reco6binant DNA techniue to break through natural species barriers s*ste6aticall* b* 6oving genes fro6 one species toanother that do not co6bine in nature. $* using such techniues# +eneticall* odified(+ crops have been developed# &hich have greater resistance to pests and diseases#and better output traits. Cn the positive side# + crops are credited &ith better ualit*#and greater productivit*. ie&ed fro6 another angle# if the la& protects the 6onopol*rights of the inventor or breeder of the + variet*# then the far6ers &ill have to dependon the breeders for seeds. 9uch a situation 6a* pose a threat to food securit*# because thecost of cultivation 6a* be pushed up. If the la& does not afford an* protection to the breeders of + seeds# there &ill be no incentive for research and production of i6proved

+ varieties using genetic engineering techniues. La& 6ust also protect the rights offar6ers &ho develop seeds through natural selection and breeding. ôu 6a* anal*se the provisions of the Protection of Plant arieties and ar6ers> Rights Act# enacted b* IndianParlia6ent in the *ear ,%%!# to find out ho& the la& atte6pts to balance these conflictingclai6s.

Another recent pheno6enon is to bring under the protective u6brella of la& &hat &astraditionall* considered to be not in need of such protection. I Cne reason for this is thee6ergence of a strong intellectual propert* rights > regi6e# &hich 6akes it possible toobtain e3clusive right over kno&ledge# > and practices alread* e3isting. It is no& possibleto clai6 patent rights on 6icro'organis6s# plant varieties# and bio'resources. India has avast reservoir of traditional kno&ledge of 6edicinal plants and indigenous 6ethods oftreat6ent. It is also one of the !, 6ega biodiversit* regions in the &orld. Legislative6easures ai6ed to protect traditional kno&ledge and biodiversit* have been adoptedrecentl*. +eographical indications# &hich are attached to goods and services# and &hichare generall* associated &ith a certain ualit*# are no& also protected b* la&. Instances of geographical indications are $as6ati rice# Dar8eeling tea# 7ash6iri carpet# 7anchipura6sari# or 9cotch &hisk*. hat the la& protects in all these instances is not rights in theconventional legal sense# but interests &hich belong to the co66unit*.

!5,




,nima0s ty i& !e manner a&&ected remains

otentia0 use o& ;arriers do not d P@Q -sts and rops are anot"er eeder o& -ders &ort"e cost otectio" irc" and "niFues. t"rou$" is o& t"e y (ndian Q ;a0ance

@0o;a0isation and La!

This is the era of globalisation> is a phrase &e hear freuentl* in diverse conte3ts. 9o6e people even go to the e3tent of sa*ing that >there is no alternative to globalisation.> ekno& that globalisation is a pervasive pheno6enon# e6bracing ever* conceivable hu6anactivit*. hen &e think of globalisation# &hat i66ediatel* co6es to our 6ind is thedo6inating position of 6ulti'national corporations—distributing production facilitiesatound the &orld# and catering to 6arkets around the &orld. Another i6portant aspect of globalisation# &hich deserves our attention# is the fact that ecological events in one

nation unavoidabl* influence other nations or so6eti6es the entire &orld. De 9ouHa de9antos# &hose vie&s &e had considered earlier in our discussion on post'6odernis6#speaks about globalised localis6 to denote local pheno6ena like &estern 6usic or dance beco6ing global# and localised globalis6 to denote local conditions like the environ6ent being affected b* trans'national influences.

The uestion is &hat# if an*# is the i6pact of globalisation on la&. $efore ans&eringthis uestion it &ould be &orth&hile to turn to Anthon* +iddens &ho has identified four institutional di6ensions of globalisation.\ The* are/ (i the global political order do6inated b* nation states separated along territorial lines (though co6peting &ithvarious non'state political entities above and belo& the nation state# each &ith aninternal 6onopol* over the 6eans of violenceG (ii capitalist &orld econo6* including

co66odit* and 6one* 6arket do6inated b* the activities of transnational corporationsand banksG (iii &orld 6ilitar* orderG and (iv global spread of industrial develop6entincluding the transfer of technolog*# a shift in the distribution of production# and thedevelop6ent of an international division of labour. +iddens also adds that a funda6entalaspect underl*ing each of these di6ensions is cultural globalisation based upondevelop6ents in co66unications# especiall* those related to 6ass 6edia. Although+iddens does not specificall* 6ention la&# &e can see that la&# like culture# also lies behind each of these di6ensions. ust as culture has provided the ideational infrastructurefor the different di6ensions of globalisation# la& has provided a part of the for6alinfrastructure.

artin 9hapiro speaks about globalisation of la& as >the degree to &hich the &hole

&orld lives under a single set of rules>. The increasing influence of hu6an rights nor6son state la&s# greater influence of TC and +ATT on international trade# increasingnu6ber of internationall* binding treaties# the establish6ent of the International )ri6inal)ourt# and the creation of



6 1he %onse6uences of ?odernity, /995.

!5;





(

/


international la& fir6s and inclusion of foreign la&*ers indo6estic fir6s is another notable trend. All signatories to +ATT#including India# &ill have to per6it the entr* of foreign la&*ersin the field of legal services soon. )ourts are increasingl* citingforeign decisions and borro&ing legal doctrines fro6 other legals*ste6s. These are clear indications of the e6ergence of a globallegal culture. The philosoph* and value 8udg6ents underl*ingsuch culture deserve to be deepl* anal*sed fro6 a 8urisprudential perspective.

e 6ust also briefl* e3a6ine the i6pact of globalisation on

la& and societ* paradig6. ith a greater degree of globalisationand gro&th of global legal culture# a great deal of la& applicable&khin a societ* &ill be born else&here and applied for e3ternalreasons. Rules co6e fro6 outside# generated b* factors notaccountable to that societ*. The* are based on and deter6ined b*e3ternal 6arket'based econo6ic interests and concerns. Along&ith econo6ic and political refor6s# legal refor6s are also forcedupon countries seeking econo6ic aid fro6 international lendersand relief agencies. Local conditions# custo6s and values have a6ini6al influence on the creation of la&# though the* &ille3perience the conseuences of its i6ple6entation.

In traditional legal theor*# la& is considered as a crucialele6ent that serves to both constitute the state# and to integratesociet*. Legal positivists treat la& and state as inseparable# andsociet* deli6ited b* territorial boundaries of the state. 9tate possesses a 6onopol* on the legiti6ate use of force# anddeter6ines the legal rules operative &ithin the societ*. Pursuantto globalisation# state la& no longer e3clusivel* regulatesrelations &ithin the societ*. Instead# different bodies of officialla& are in operation# 6an* of &hich are generated fro6 outside.According to Roger )otterrell# a legal sociologist# for6erl*societ* &as significantl* deli6ited b* the 8urisdictional reach or

legal s*ste6s# and la& and societ* &ere al6ost 6utuall* defined.As la&>s.clai6 to e3clusivit* &ithin societ* beco6es proble6atic# it no longer provides a secure 6eans of locatingsocietal boundaries. As illia6 T&ining su6s up/ >Thelongstanding co6fortable# self contained# la&' societ* paradig6has been rendered obsolete b* globalisation.>



!5@





%,R) (((

La& And ustice



The ulti6a ho&ever# lit the 6ethod of 8ustice n also varies There an the sub8ect# charit*etc. also possibl do6ination# Aristotle corrective 8u all things# go 8ustice begin all things#gc designed to i instance# the guide to dist in this initiall i6balance is The ai6 of cc prior

to distu &ith this font To the abo retributive 8us 8ustice# the ha also. The reti punish6entoi &hile punishn



Lecture !"

Justice

The ulti6ate ob8ect of ever* legal s*ste6 is to secure 8ustice. The difficult*# ho&ever# liesin giving a 6eaning to the concept of 8ustice# and in devising the 6ethods to achieve it.Ever*one &ants 8ustice# but each one>s concept of 8ustice 6a* be different fro6 that of another. The 6eaning of 8ustice also varies &ith ti6e and place.

There are probabl* as 6an* definitions of 8ustice as there are &riters on the sub8ect.9o6e people euate 8ustice &ith 6oral values like truth# 6erc*# charit* etc. Cthers 6a*e6phasise eualit* as the essence of 8ustice. It is also possible to define 8ustice negativel*as absence of discri6ination# do6ination# e3ploitation# and t*rann*.

Aristotle tried to e3plain 8ustice b* categorising it as distributive and corrective 8ustice.Distributive 8ustice addresses the basic organisation of all things# good and bad# in settingup a societ*. The inuir* into distributive 8ustice begins on the assu6ption that a centralauthorit* has control over all things# good and bad# that can be possessed. The act of distribution is designed to realise a 8ust relationship a6ong t&o or 6ore clai6ants. or instance# the principle that ever*one should get an eual share is a co66on guide todistributive 8ustice. )orrective 8ustice responds to a disturbance in this initiall* 8ustdistribution on the basis of the eualit* principle. The i6balance is revealed b* a victi6suffering har6 at the hands of another. The ai6 of corrective 8ustice is to recreate the 8ustdistribution that e3isted prior to disturbance. e find that a 6a8or part of the la& isconcerned &ith this for6 of 8ustice.

To the above t&o categories &e 6a* also add t&o 6ore categories# viH# retributive 8ustice# and co66unicative 8ustice. As in the case of corrective 8ustice# the har6 caused b* another lies at the core of retributive 8ustice also. The retributive response is to inflicta for6 of suffering called punish6ent on the offender. )o6pensation is a for6 of corrective 8ustice# &hile punish6ent is a for6 of retributive 8ustice. )o66unicative 8ustice




addresses the ineualit* that 6ight result fro6 e3changing goods. The 8ust e3change6aintains the eualit* of the parties.

All the four for6s of 8ustice &e have discussed are concerned &ith the result and are#

therefore# substantive in nature. It is euall* i6portant fro6 the perspective of 8ustice toensure that the process b* &hich the result is achieved is also 8ust. This is &hat &e 6a*call >procedural 8ustice># The core idea in procedural 8ustice is fairness. Even in a ga6ethe rules of procedure 6ust ensure that both sides have an eual chance of &inning. Afair procedure 6ust be able to generate a 8ust result. This is &hat &e are tr*ing to do b*6aking procedures as fair as possible# not onl* in 8udicial proceedings# but also in uasi' 8udicial and ad6inistrative proceedings# &here decisions affecting the rights of individuals are taken.

A 6odern 8urist &ho atte6pted to develop a theor* of distributive 8ustice linking it to

fairness# is ohn Ra&ls. Ra&ls e3plains his concept of 8ustice as fairness. ! A societ*satisf*ing the principle of 8ustice as fairness co6es as close as a societ* can to being a

voluntar* sche6e# for it 6eets the principles# &hich free and eual persons &ould assentto# under circu6stances that are fair. Ra&ls for6ulates the follo&ing t&o general principles/

%rincip0e o& Reciprocity

No one &ould acuiesce in a s*ste6 that entailed an enduring loss for hi6self in order to bring about a greater net balance of satisfaction for societ* as a &hole. Ra&ls does notaccept $entha6>s theor* of greatest good of the greatest nu6ber as a 6easure of 8ustice.9uppose "1 percent of the population &ere slaves# and @! percent &ere slave o&ners#

does it 6ean that 8ustice &ill be on the side of the slave o&ners e3ploiting the slavesF

Just Sa:in$s %rincip0e

A level of conservation and savings is to be adopted &hich is sufficient to pro6ote the best interest of the &orst off 6e6bers of future generations to the greatest degreeacceptable to the &orst off class of people of the e3isting generation. Ra&ls believes that 8ustice and fairness 6ust operate not onl* bet&een individuals in an* given societ*# butalso bet&een 6e6bers of one generation# and those of generations that succeed it.

/ ! Theor% of Justice# /937.

!2%





Justice

Ging goods. The 8ust

concerned &ith theeuall* i6portant ocess b* &hich the>procedural 8ustice>.a ga6e the rules o& lance of &inning. , This is &hat &e arenot onl* in 8udicial / proceedings# &here

i& distributive 8ustice concept of 8ustice as is fairness co6es as 6eets the principles#circu6stances that rinciples/

n enduring loss &or e of satisfaction &or s theor* of greatest ippose "1 percent o& i!ners=

does it 6ean iloiting the slavesF

mic" is su&&icient to ure $enerations to eop0e o& t"e existin$ 0ist operate not on0y

een mem;ers o& one

To these t&o general principles# Ra&ls adds the follo&ing t&o funda6ental principles

of 8ustice/,

(a Each person has the sa6e indefeasible clai6 to a full* adeuate sche6e of eual basic liberties# &hich sche6e is co6patible &ith the sa6e sche6e of liberties for all.

(b 9ocial and econo6ic ineualities are to satisf* t&o conditions/ first# the* are to beattached to offices and positions open to all# under conditions of fair eualit* of opportunit*G and second# the* are to be to the greatest benefit of the leastadvantaged 6e6bers of societ*. This# he calls# >the difference principle>.

Ra&ls observes that a free 6arket s*ste6 6ust be set &ithin a fra6e&ork of political andlegal institutions that ad8ust the long' run trend of econo6ic forces so as to prevente3cessive concentration of propert* and &ealth# especiall* those likel* to lead to politicaldo6ination. 9ociet* 6ust establish# a6ong other things# eual opportunities of educationfor all regardless of fa6il* inco6e.

The first principle covers the constitutional essentials. The second principle reuiresfair eualit* of opportunit*# and that social and econo6ic ineualities be governed b* thedifference principle.

In order to resolve an* possible conflict bet&een these principles# Ra&ls laid do&n the priorit* rule# &hich sa*s that the first funda6ental principle takes precedence over the



second. The onl* restrictions that Ra&ls &ill allo& on the basic liberties are/ (i &hen thecurtail6ent of one libert* &ill result in greater libert* overallG and (ii &here a >less thaneual libert*> is acceptable to citiHens &ith the lesser liberties. Ra&ls gives the special privileges granted to 6e6bers of the legislatures to protect and strengthen the politicalinstitutions# and thus the overall liberties of all as an e3a6ple. -o&ever# Ra&ls states that

a departure fro6 the institutions of eual libert* reuired b* the first principle cannot be 8ustified b*# or co6pensated for# greater social and econo6ic advantages.Ra&ls believes that his theor* establishes the principles of 8ustice that &ill define the

basic structure of societ*. The procedures for choosing these principles &ill be fair if those voting on the6 have no conception &hether the* &ill personall* benefit fro6 the particular principles. The* 6ust vote regardless of their personal interest. The* 6ust proceed under the veil of ignorance about the characteristics that &ould lead the6 to prosper or suffer under one principle or another. Ra&ls calls this state of ignorance the>original position># separated fro6 realit* b* a >veil of ignorance>. In such a situation#Ra&ls argues# rational individuals &ould choose t&o

27 Jo"n Ra!0s= Justice as Fairness: ! ,estate'ent# 755/.



!2!




principles of 8ustice. The first is that each person is to have an eual right to the 6oste3tensive basic libert* co6patible &ith a si6ilar libert* for others. This principlee3presses a co66it6ent about the 8ust foundations of societ*. It is a principle for a 8ust

and egalitarian social organisation# but it is not distributive in nature. The distribution of social and econo6ic goods—the kinds of goods that can be uantified and transferredfro6 one person to another—is considered in his second principle# &hich states >socialand econo6ic eualities are to be arranged so that the* are both (a reasonabl* e3pectedto be to ever*one>s advantagesG and (b attached to possession and offices open to all.

Ra&ls>s theor* of 8ustice has found its ad6irers as &ell as critics. The individualistice6phasis of his anal*sis and the >original position> and >veil of ignorance> as the starting points of anal*sis have been the 6ain targets of criticis6. Cne of the pro6inent critics isRobert NoHick# &hose theor* of 8ustice is based on t&o planks# viH# (i the idea of the6ini6al stateG and (ii the concept of 8ust entitle6ents.

NoHick presents his idea of a 8ust societ* as one in &hich the rights of the individual

are accorded the respect that is due to the6.; According to hi6# natural rights consist of (i a right to en8o* ones life# health# libert*# and possessions &ithout interference b*others in the shape of violence# threat or frauds (including breaches of contractG and (ii aright to be co6pensated b* an* person &ho causes in8ur* b* violating one>s naturalrights. The second right &as intended to act as a restraint on future violators. In a state of nature it is for each individual to protect his rights# but after the e6ergence of the statethe protection of the natural rights has beco6e the function of the state. In NoHick>sconcept of the 6ini6al state# a state has t&o functions. It 6ust obtain co6pensation for a person &hose rights have been infringed fro6 the person &ho has done the da6age.9econdl*# in order to prevent possible future da6age# the state 6a* prohibit certain for6sof potentiall* dangerous conduct.

The concept of 8ust entitle6ent is central to NoHick>s concept of 8ustice. -is vie& isthat an individual has a natural right to &hatever he holds# provided that the &a* he ca6eto hold each part of his propert* &as 8ustified. A person is entitled to hold propert* if#either (i the propert* &hen acuired &as not the propert* of an*one else# ie# it &as>unheld>G or (ii the properr* &as transferred to the present holder b* a valid 6eans suchas gift or sale# and not as a result of fraud or theft. The first# NoHick calls 8ustice inacuisition and the second# 8ustice in transfer. ustice in holdings is the result of either 8ustice in acuisition# or 8ustice in transfer. According to

; !narch%# State and topia# QA?!*

!2,



Justice

rt* for dations Dn= but ano6ic o6 one /s >social ioth (a ched to

ics. The and >veil targets of theor* of GG and (ii

/ rights of Gording to h# libert*# > violence# ight to be es natural e violators# s# but after ias

beco6e tate# a state fhose rights e. 9econdl*# libit certain

pt of 8ustice# er he holds# &as 8ustified# hen acuired the propert* s gift or sale# .lis 8usticein ldings is the According to

NoHick# the present distribution of propert* is 8ust if it ca6e about in a 8ust 6anner# ie# inaccordance &ith the principles of 8ustice in holdings. hen propert* is held not in

accordance &ith those principles# the in8ustice ought to be rectified. This he called 8usticein rectification# the third aspect of 8ustice in holdings. NoHick believes that an* 6easurethat had the effect of re'distributing &ealth &ould infringe the natural rights of those &hoheld propert* to retain it.

)ritics have dra&n attention to so6e of the &eaknesses in NoHick>s theor*. or instance# although NoHick recognises a persons natural right to life and health# he doesnot include a right to the things needed for the realiHation of these rights# such as food or 6edicine. NoHick>s concept of the right to life is ver* narro&# as it does not include theright to the 6eans necessar* to live# but onl* a right not to be killed or in8ured b* others.e 6a* contrast this &ith the e3pansive 6eaning placed b* the 9upre6e )ourt of Indiaon the right to life guaranteed in art ,! of the )onstitution. NoHick>s idea of 8ustice# &hich

does not recognise the right to eual opportunities# also see6s to be highl* ob8ectionable.Regarding 8ustice in holdings# &hich is e3tre6el* central to NoHick>s theor*# so6e

uestions arise. 9uppose the in8ustice occurred at an earlier stage before the presentholder acuired the propert*. In such a case the uestion arises &hether the presentholder &ho has acuired possession b* legiti6ate 6eans is under a dut* to restore the propert* to the person# or the descendants of the person &ho &as &rongfull* deprived.urther# &hat &ill be the position if the person originall* &ronged had hi6self acuiredthe propert* &rongfull*F There are no coherent ans&ers to these uestions in NoHick>s&ritings. NoHick>s theor* represents an individualistic anal*sis based on free 6arket 6odel of

8ust entitle6ents. To &hat e3tent it &ill help in striking the right balance bet&een

individual interest and collective interest# see6s to be doubtful. ustice ulti6atel* isabout a concept of right relations in societ*# and the choice is not bet&een individualis6and co'operation# but a choice in favour of the e3pression of the individualis6 of hu6an beings as social creatures. As Aristotle observed long back# hu6an beings are socialani6als.

Justice- (ndian %erspecti:e





(


as an i66utable universal rule. Even though the concept of eualit*# and respect for

hu6an dignit* are recognised in the edic te3ts# -indu societ* &as 6arked for itsuneual and class character# &hich resulted in discri6ination. The $anus'riti ()odeof $anu# &hich provided a sociolegal fra6e&ork for -indu societ* 6a* appear to benon'egalitarian and unde6ocratic b* 6odern standards especiall* because of its anti'&o6en and u'iRShudras outlook# but it trul* reflected the social realities of the da*.

The 6odern concepts of rule of la& and eualit* before la& &ere introduced along&ith a secularisation of ad6inistration of 8ustice during $ritish period. The legal valuesand ideals concerning hu6an libert*# eualit* and 8ustice introduced b* $ritish inspiredour national leaders. The* fought for freedo6 fro6 $ritish do6ination# but not againstthese $ritish values. The )onstitution# &hich &as fra6ed after independence# e6bodiesa concept of 8ustice deepl* influenced b* the ideals of estern liberal de6ocratic

thought.The Prea6ble of the )onstitution speaks about 8ustice—social# econo6ic# and political.

The unda6ental Rights# &hich guarantee basic rights# and the Directive Principles#&hich guide la&'6aking and e3ecutive policies# spell out ho& the three'di6ensionalconcept of 8ustice 6ust be attained in Indian conte3t. The e6phasis has been on social 8ustice because a large seg6ent of Indian population has been deprived of eualit* of opportunit* for generations. The &a* in &hich the concept of eualit* is balanced &iththe clai6s of these disadvantaged sections of Indian societ* through the concept of co6pensator* discri6ination# is a uniue feature of the 6odern Indian concept of 8ustice.U

!2"



a0ity= and 0u society suited in d a sociotarian and ui>!omen ties o& t"e

- 0a! !ere tice durin$ ian 0i;erty= na0 0eaders= $ainst t"ese 0ependence= o& #estern

t0= economic= c ri$"ts= and ti:e po0icies= ie attained in cause a 0ar$e & opportunity

;a0anced !it" t"rou$" t"e C& t"e modern

Lecture /1

,dministration o& Justice

(n any society= t"ere are peop0e dri:en ;y con&0ictin$ interests !"o are !i00in$ to use

a00 met"ods possi;0e= !"et"er &air or un&air= in &urt"erance o& t"eir interests. (&

e:eryone resorts to t"e use o& pri:ate &orce= t"ere !i00 ;e c"aos= and t"e po!er&u0

!i00 dominate t"e !eak. +i:i0ised societies pre:ent suc" a situation ;y 0ayin$ do!n

norms o& "uman conduct= and a0so ;y esta;0is"in$ t"e mac"inery &or t"e

en&orcement o& ri$"ts and peace&u0 sett0ement o& disputes. )"e administration o&

<ustice may ;e descri;ed as t"e modern and ci:i0ised su;stitute &or pri:ate

:en$eance and se0&>"e0p in primiti:e communities. )"e &orce o& t"e or$anised

community rep0aces t"e &orce o& t"e indi:idua0s as t"e instrument o& redressa0 and

punis"ment o& in<uries. )"e state protects t"e !eak a$ainst t"e po!er&u0.

)"e administration o& <ustice started in t"e ear0y days as a c"oice o& peace&u0

ar;itration or mediation o&&ered &or t"e :o0untary acceptance o& parties= rat"er t"an

a compu0sory su;stitute &or se0&>"e0p and pri:ate !ar. Later !it" t"e $radua0

$ro!t" o& t"e po!er o& $o:ernment= t"e state suppressed t"e ancient and ;ar;arous

system= and 0aid do!n t"e princip0e t"at a00 Fuarre0s s"a00 ;e ;rou$"t &or sett0ement

to t"e courts o& 0a!. )"is transition !as a $radua0 process &ina00y resu0tin$ in t"e

tri;una0s o& t"e state assumin$ exc0usi:e responsi;i0ity &or t"e administration o&

<ustice.

+i:i0 and +rimina0 Justice

,dministration o& <ustice= !"ic" is one o& t"e primary &unctions

o& t"e state= is $enera00y di:ided into t!o= :iT= administration o&



ci:i0 <ustice= and administration o& crimina0 <ustice. (n app0yin$

t"e sanction o& p"ysica0 &orce to t"e ru0es o& ri$"t= t"e courts and

tri;una0s o& t"e state may eit"er en&orce ri$"ts= or punis"

!ron$s.

ot" in ci:i0 and crimina0 proceedin$s t"ere is a !ron$. )"e

0a! !i00 en&orce a ri$"t on0y a$ainst a person !"o "as a0ready:io0ated it= or !"o "as




sho&n an intention to do so. ustice is ad6inistered onl* against &rongdoers. A &rongregarded as a sub8ect 6atter of civil proceedings is called a civil &rong# and a &rongregarded as the sub8ect 6atter of cri6inal proceedings is ter6ed as a cri6inal &rong or

a cri6e.The distinction bet&een civil and cri6inal 8ustice is based on the distinction bet&eencri6es and civil &rongs. )ri6es are public &rongs har6ful to societ* in general. )ivil&rongs# on the other hand# are privitt &rongs. According to $lackstone# civil &rongs arean infringe6ent of the private or civil rights belonging to individuals considered asindividuals and are# therefore# freuentl* ter6ed as civil in8uries. )ri6es are a bread andviolation of public rights and duties# &hich affect the &hole co66unit* considered as aco66unit*. The i66ediate victi6 of cri6e 6a* be an individual# but still it is dee6ed b*la& to be har6ful to societ* in general. hen &e consider cri6es and civil &rongs inter6s of their legal conseuences# &e find that a cri6e is considered to be be*ond a6atter of 6ere co6pensation bet&een the offender and the victi6. The la&# therefore#

i6poses punish6ent on the &rongdoer. The purpose of cri6inal 8ustice# &e 6a* sa*# is punish6ent. )ivil &rongs# such as breach of contracts of trespass# infringe onl* the rightsof individuals and# therefore# the la& provides for co6pensation. )ivil proceedingsnor6all* result in a 8udg6ent for da6ages. Apart fro6 da6ages# civil actions lie for pa*6ent of a debt# for in8unctions# for specific perfor6ance# for deliver* of possession#for a decree of divorce# etc. e find that civil 8ustice is ad6inistered in a set of courts#and cri6inal 8ustice in another set of courts.

9o6e e6inent 8urists have identified the distinction bet&een cri6inal and civil &rongs&ith that bet&een public &rongs and private &rongs. A public &rong is a &rongco66itted against the co66unit* at large# and dealt &ith in proceedings to &hich thestate itself is a part*# and prosecutes the accused. A private &rong is a &rong co66ittedagainst an individual or individuals# and it is generall* re6edied in a civil suit at theinitiative of the in8ured individual. -o&ever# all public &rongs are not cri6es# eg# arefusal to pa* ta3es to the state is not treated as a cri6inal &rong# though it is a public&rong. It is taken to the civil court for the enforce6ent of the state>s right to collect ta3es.)onversel*# &e can also sa* that all cri6es are not public &rongs# as for instancecri6inal trespass. Cffences that do not concern the general public are left to be prosecuted b* the affected individuals. Thus# a division bet&een public and private&rongs is not coincident# but onl* a cross division. Public &rongs are so6eti6esre6edied through civil proceedings# and private &rongs are so6e ti6es punished throughcri6inal courts. In the &ords of 9al6ond/ >Public rights are often enforced and private&rongs are often punished.>

!25



!d'inistration of Justice

tngdoers. d a civil Dceedin$s

d on the c &rongs re private /nt of the idividuals / a breach i66unit* la* be an n general#leir legal 6atter of therefore# lal 8ustice# intracts or e# the la& 8udg6ent of a debt# sion# for a in a set of

n cri6inal &rongs. A large# and prosecutes individual initiative of i6es# eg# a ng# thoughTient of the i cri6es are that do not ie affected Sngs is not Gs re6edied s punished ts areoften

The state takes direct interest in cri6inal 8ustice# and conducts the prosecution in allcri6inal cases. The govern6ent as prosecutor can pardon the offender either before or after the trial. The in8ured part* has little sa* in such proceedingsG hence# cri6inal la& isgenerall* regarded as a branch of public la&.

+rimina0 Justice

e have alread* seen that the purpose of cri6inal 8ustice is punish6ent. Punish6ent6a* be described as the infliction b* the state authorit*# of a conseuence nor6all*regarded as an evil (eg# i6prison6ent or death on an individual found to be legall*guilt* of a cri6e. If so6ebod* poses a uestion to *ou# as to &h* should &e punish acri6inal# *our ans&er probabl* &ill be that &e punish a cri6inal so that he does notco66it an* cri6e in future. Cthers 6a* sa* that b* punishing a cri6inal &e arereassuring the victi6 that societ* is concerned about &hat has happened to hi6her.

Punish6ent discourages people fro6 doing the sa6e thing again. Looking at punish6entfro6 another perspective# so6e people 6a* sa* that punish6ent is necessar* to protectsociet* fro6 dangerous or dishonest people. It allo&s offenders to 6ake a6ends for thehar6 the* have caused. A broader approach to punish6ent 8ustifies it# sa*ing that it6akes people realiHe that la&s 6ust be obe*ed. As there are different ans&ers to theuestion &h* should &e punish a cri6inal# there are infact different approaches to the proble6 of punish6ent.

Cne pro6inent approach vie&s punish6ent as deterrent. Cffences are co66itted because of a conflict bet&een the interests of the &rongdoer# and those of the societ* atlarge. Punish6ent has a deterrent effect as it destro*s this conflict of interests b* 6akingall deals &hich are in8urious to others# in8urious also to the &rongdoer. Deterrent

punish6ent deters so6eone &ho has co66itted an offence fro6 co66itting an offenceagain. It also deters potential offenders fro6 co66itting an* offence at all. This effect#ho&ever# &ill be produced onl* if potential offenders kno& about the conseuence of their act. e cannot e3pect such deterrent effect in a societ* &here kno&ledge of la&and its sentencing practices re6ains lo&.

Another approach considers punish6ent as preventive. Its ai6 is to prevent a repetitionof the offence b* rendering the offender incapable of its co66ission. I6prison6entserves as a preventive 6easure because it te6poraril* disables a person fro6 co66itting



a cri6e. 9uspension or cancellation of a driving license has a si6ilar effect. The preventive approach 8ustifies death penalt* as the 6ost effective and per6anent 6ethodof disable6ent.

ill

!22



/


i lie deterrent approach -as its e6phasis on the 6otives of the offendti#U &hile the preventive approach believes in ph*sical restraint. A third approaa# < &hich stands instark contrast &ith the first t&o# is the refor6ative approach# f This approach considers punish6ent 6ainl* as refor6ation# &hich seeta G to bring about a change in theoffender>s character so as to reclai6 hi6 as & a useful 6e6ber of societ*. In other &ords#the ob8ective of the refor6ative U 6ethod# &hich is also called rehabilitative 6ethod# isto reintegrate tit & offender into societ* after a period of punish6ent# and to design thecontent J of punish6ent so as to achieve this.

Toda* &e find increasing i6portance being attached to the refor6ativt aspect of

punish6ent. The influence of this approach is visible in theG establish6ent of open prisons# introduction of vocational training for prisoners# greater use of probation and parole# etc. )ri6e is considered as a social disease# &hich can be cured onl* b*eli6inating its causes.

ôu 6ust have noticed the conflict bet&een the different approaches punish6ent. The6ethods of punish6ent are necessaril* related to the & ob8ects of punish6ent. Therefor6ative theor* accepts onl* such for6s of punish6ents as are ai6ed at the educationand discipline of the cri6inal# U and re8ects those for6s of punish6ent# &hich produceonl* a deterrent %! disabling effect. In this vie&# death penalt* cannot be accepted.Refor6ativt 8 approach believes in the principle# >&e 6ust cure our cri6inals# and not tkill the6>. It is pertinent to note that the International -u6an Rights U docu6ents# &hich

&e &ill discuss later# contain provisions against the death f penalt* and also against cruel#degrading# and inhu6an punish6ent. The deterrent theor* has a totall* different approachto punish6ent and re8ects all 6ethods of punish6ent# &hich are inadeuate to dissuadeoffenders 8 fro6 co66itting further offences. If prisons are converted to training centersto refor6 the prisoners# the* &ill beco6e too co6fortable to serve as an* deterrent. Thesupporters of the deterrent theor* also raise uestions about habitual offenders# andincorrigible cri6inals. The* argue that such offenders are be*ond the correctionalinfluences and unless such persons are restrained fro6 har6ful activit* b* so6e 6ethodof disable6ent# the* &ill continue to be a threat to societ*. The refor6ative approach6ight# the* fear# instead of deterring cri6inals# encourage the6. The 6ain proble6 &iththe deterrent approach appears to be that &hile it 6a* deter potential offenders# it 6a*

turn actual offenders into hardened cri6inals.The uestion &hich arises is &hether it is possible to find a co6pro6ise bet&een theseco6peting vie&s of punish6ent. No legal s*ste6 accepts an* one of these approaches tothe e3clusion of others# in its cri6inal 8ustice s*ste6. Advance6ents in cri6inolog*#&hich is the scientific stud* of cri6e and cri6inals# has brought to light the nature of cri6e as 6ainl* a product

/38






of ph*sical and 6ental abnor6alit* and degenerac*. An effective s*ste6 of cri6inal 8ustice ad6inistration 6ust take this fact into account &hile devising the 6ethods of

punish6ents. It has not been e6piricall* proved that e3tre6el* harsh punish6ents reall* produce a great deterrent effect and actuall* reduce the cri6e rate in societ*. A proper approach &ill be to strike a balance bet&een the deterrent and refor6ative approaches#rather than follo&ing one of these approaches. As 9al6ond observes/

Although the general substitution of the refor6ative for the deterrent principle

&ould lead to disaster# it 6a* be argued that the substitution is possible and

desirable in the special case of the abnor6al and degenerate.!

There is another theor* of punish6ent kno&n as the retributive theor*# &hich treats

punish6ent as an end in itself. It believes that the &rongdoer 6ust pa* for his cri6e. Ane*e for an e*e and a tooth for a tooth> (le3 tilionis is a pri6itive concept that hassurvived up to the present. The retributive theor* sa*s that ever* cri6e disturbs the

balance of societ*. The balance is restored onl* b* the suffering and pain inflicted on the&rongdoer. Retribution is an e3tension of the idea of revengeG here the societ* or the statetakes up the responsibilit* to seek vengeance on behalf of the victi6. The t&o theories &ehave earlier discussed regard punish6ent as a 6eans to so6e further end. This provides a

8ustification for the punish6ent# but &hen punish6ent is inflicted for its o&n sake# itlacks a convincing 8ustification. As a 8ustification for retributive punish6ent# a theor*

kno&n is e3piation has been advanced. According to this theor*# cri6e is done a&a*&ith# cancelled# blotted out# or e3piated b* the suffering of its appointed penalt*.

Punish6ent is considered as a debt# &hich the offender o&es to his victi6 and &hen the punish6ent has been endured# the debt is paid# the liabilit* is e3tinguished# andinnocence is substituted for guilt. 9al6ond uses the for6ula >guilt plus punish6ent is

eual to innocence> to conve* the essence of the theor* of e3piation.The retributive and e3piative theories 6a* not appear to be satisfactor* theories

providing rational e3planation to punish6ent. Nevertheless# the* contain so6ei6portant principles# &hich cannot be ignored. The retributive theor*# &hich regards punish6ent as balance against an offence icts as an i6portant li6iting principles that a punish6ent should not be < inflicted# unless there has been an offence. It is also possibleto derive a < further principle that the punish6ent should be proportionate to the offence.The principle of e3piation 6a* also be e3tended to hold that once i person has suffered

the punish6ent for his cri6e# no stig6a should be





J9

!l'ond on Jurisprudence# t!e0&t" edn= /966=.p 93.

!21




attached to hi6. -e 6ust be accepted b* societ* as if he had not co66itted an*cri6e. In other &ords# a person>s previous conviction and cri6e record 6ust beconsidered irrelevant# and the slate should be &iped clean.

$efore ending the discussion# it is necessar* to add that there are penologists&ho uestion the necessit* or desirabilit* of punish6ent. The* argue that t&o &rongscannot 6ake a right# and ask/ &h* add the pain of punish6ent to the pain alread*caused b* the offenceF The victi6 has alread* suffered fro6 the cri6eG then &h*6ake the offender suffer tooF Those &ho oppose the ver* idea of punish6ent as &ellas other penologists# consider co6pensating the victi6s of cri6e as the 6osti6portant task of cri6inal 8ustice.

+i:i0 Justice

The right enforced in civil proceedings is either a pri6ar*# or a sanctioning 8 right. Asanctioning right is one &hich arises out of the violation of another 8 right. or instance# &hen $ publishes a defa6ator* state6ent about , C there is a violation of @sright to reputation. A right to da6ages arises out j of this violation. The right toda6ages co6es into e3istence as a result ofot i b* &a* of sanction for a &rong done b*another. It is# therefore# called a U sanctioning right. An* other right is a pri6ar* right.In our e3a6ple# the 8 right to reputation is a pri6ar* right.

Table ! LE+AL PRC)EEDIN+9

+('(L +R((N,L PEn&orcement o& Ri$"tsQ P%unis"ment o&

#ron$sQ

— Speci&ic En&orcement Sanctiona0 En&orcement

PEn&orcement o& a %rimary Ri$"tQ PEn&orcement o& a Sanctionin$ Ri$"tQ

+ompensation %ena0ty

PRecoupment o& LossQ PNot rea00y re0ated to dama$e or

0oss ( ore in t"e Nature o& %unis"mentQ

Restitution pei0a0 Reddress

PSurrender o& %ro&itQ P%ayment &or Loss (n&0icted Un0a!&u00yQ



!:%'Peru



$dministration of Justice

Enforce6ent of a pri6ar* right is called specific enforce6ent. The polic* of la& is toencourage specific enforce6ent &herever possible and e3pedient# but in 6an* situationsit is either i6possible or ine3pedient. It is i6possible to order specific enforce6ent of the

right to reputation. It is ine3pedient to order specific enforce6ent in the case of breach of a pro6ise to 6arr*. In such cases# la& creates sanctioning rights# the enforce6ent of &hich is called sanctional enforce6ent. In both these cases# sanctional enforce6ent takesthe for6 of da6ages. )o6pensation is generall* a&arded &hen the plaintiff suffers aloss on account of the defendant>s &rong. -o&ever# even in cases &here the defendant>s&rong has not entailed an* loss to the plaintiff# the plaintiff 6a* be given a right to

realise a pecuniar* penalt* fro6 the defendant. In $sh/y v (hite,B the plaintiff &as notallo&ed to vote at the election. The candidate for &ho6 he intended to vote &assuccessful in the election# and he did not sustain an* loss. 9till the defendant &as heldliable in da6ages for the 6ere infringe6ent of the plaintiff>s right to vote.

)o6pensation 6a* be divided into t&o/ (i restitutionG and (ii penal redress. In

restitution# the &rongdoer gained to the e3tent to &hich the plaintiff has suffered loss#and he is liable to co6pensate the plaintiff to that e3tent. In penal redress# the defendanthas not 6ade an* gain to hi6self# though his &rongful act has caused loss to the plaintiff. )ri6inal prosecution and civil actions for penal redress involve directl* or indirectl* a punish6ent to the &rongdoer and are# therefore# called penal proceedings.Action for restitution or specific enforce6ent are re6edial in nature# and are calledre6edial proceedings.

The difference bet&een cri6inal prosecution and actions for penal redress 6ust beclearl* understood. The for6er is cri6inal proceedings# &hile the latter is civil. Theob8ect of cri6inal prosecution is punish6ent of the &rongdoer for his &rong. In anaction for penal redress# it is not punish6ent as such# but the enforce6ent of a

sanctioning right in the plaintiff# and a correlative dut* on the &rongdoer# that isinvolved. The i66ediate purpose of the proceedings is to enforce the sanctioning right#and not to inflict punish6ent as such on the &rongdoer.

/

Secondary *unctions o& +ourts

U The courts as &e have seen are pri6aril* designed for the ad6inistration of U 8ustice.-o&ever# their special constitution# authorit*# kno&ledge# and procedure 6ake the6useful instru6ent for the fulfill6ent of so6e other analogous functions as &ell. These

are called the secondar* functions of

7 P/354Q 7 LdRaym948.

/8/






courts. In a &ider sense &e 6a* sa* that ad6inistration of 8ustice connotes all functionsof the courts of 8ustice# including their secondar* functions. The secondar* functions ofcourts are/ i

(i ,d<udication o& c0aims o& citiTens a$ainst t"e state /

Ad6inistration of 8ustice is the application of force to the rule of 8ustice b* thecourts. The force applied is the force of the state. -o& is it logicall* possible toconceive of the force of the state being applied against the state itselfF e kno&that the la&s provide re6edies fot individuals against the state# and per6itsaggrieved persons to institute legal proceedings in the state# in courts of la&. The&rit 8urisdiction conferred on the high courts and the 9upre6e )ourt b* the)onstitution of India is an i6portant e3a6ple of 8udicial re6edies against thestate. Ad8udication against the state does not strictl* co6e &ithin the definition of ad6inistration of 8ustice and is# therefore# considered as a secondar* function of

the court.

(ii Dec0aration o& ri$"t

In this case# the court 6erel* 6akes a declaration that a certain person possesses a particular right. This declaration sets at rest an* uncertaint* as to the e3istence or e3tent of the right. -ere# no enforce6ent as such is involved. Declarations of legiti6ac* or paternit*# and declaration as to the validit* or other&ise of a6arriage are the t*pical e3a6ples. 9uch declarations 6a* beco6e 6atters for enforce6ent in subseuent proceedings. -o&ever# declarator* decrees as suchcannot be characterised as the enforce6ent of a right. F

(iii ,dministration o& propertyIt includes cases in &hich courts undertake the 6anage6ent and distribution of propert*. The ad6inistration of a trust# liuidation of a co6pan* b* a court# andthe realisation and distribution of an insolvent estate are e3a6ples.

(iv )it0es o& ri$"t

This includes all cases in &hich 8udicial decrees are e6plo*ed as the 6eans of creating# transferring or e3tinguishing right. -ere 8udg6ent or decree operates notas a re6ed* for a &rong# but as the title of a right. E3a6ples are a decree of divorce or 8udicial separation# an ad8udication of bankruptc*# a decree of foreclosure against a 6ortgager# an order appointing or re6oving a trustee# and a

grant of letters of ad6inistration.

All the above for6s of 8udicial actions# &hich &e have characterised #

!:,



$dministration of Justice

as secondar* functions of courts# are included under the civil ad6inistration of 8ustice.

(v ,dministration o& Justice accordin$ to La!- Le$a0 Justice and Natura0 JusticeA distinction is so6eti6es 6ade bet&een legal 8ustice and natural 8ustice. Thisfollo&s the division of la& into positive# and natural la&. ustice vie&ed in the lightof positive la&# or la& of the state is called legal 8ustice. ustice according to thenatural la& or the un&ritten la& of 6oral conscience is natural 8ustice. This 6ust bedifferentiated fro6 the current use of the phrase >natural 8ustice> to denote the principles of fairness# viH the rule against bias and the reuire6ent of fair hearing#&hich occup* an i6portant position in ad6inistrative la&. Natural 8ustice getsincorporated into legal 8ustice &hen its principles are included in positive la&.Ad6inistration of 8ustice in courts is done according to legal 8ustice# because of thefollo&ing advantages/

(a Uniformity and %ertainty- Natural 8ustice does not consist of a bod* of settled principles. Its content varies and# therefore# cannot be accepted asthe basis of ad6inistration of 8ustice in courts. hat &e need is certaint*. La& provides fi3ed principles thereb* ensuring unifor6it*# certaint*# and predictabilit*. The rules are kno&n in advance enabling citiHens to fashion their conduct accordingl*. Legal rules 6a* or 6a* not e6bod* an ele6ent of 6oralit*G but the* 6ust possess the ualities of certaint*# unifor6it*# and e3pedienc*. or instance# the rule that vehicles shall 6ove on the left side of the road is 6orall*neutral. -o&ever# it has the advantage of unifor6it* and certaint*# and can beused for the efficient regulation of traffic. The sa6e result could be achieved

even &ith a rule prescribing that vehicles shall 6ove on the right side of the road.Infact so6e countries follo& this rule.

(becurity a#ainst /ias- The e3istence of kno&n and fi3ed rules is a protection against arbitrar* and biased decisions. It reduces the scope of sub8ective ele6ents in the ad6inistration of 8ustice. It is eas* to find out &hether there has been an* deviation fro6 the rule. This is not possible if 8udges are per6itted to decide cases according to their o&n notions of natural 8ustice.Arbitrar* and perverse 8udg6ents 6a* then go undetected and unchallenged.

!:;






ges in ustice. G social 'fistor* tercla*# beco6ing un8ust toda*# or &hat &as considered utter foll* *esterda*# beco6ingthe prevailing nor6 toda*. There is al&a*s a gap bet&een la& and social change.In so6e legal s*ste6s it 6a* not be eas* to change the la&. )onservatis6# &hich



is a hall6ark of la&# acts as a constraint on the 8udge &ho has to follo& the fi3edrules &hich belong to the past.

(c For'alis': hen la& is reduced to &ritten instru6ents# the &ords of the statuteassu6e i6portance. +iving i6portance to the &ords of the statute &ithout due

regard to the spirit of la&# is called the vice of for6alis6. The for6 beco6es 6orei6portant than the content. There is the further difficult* created b* a6biguit* or inconsistenc* in the &ording of the statute. All this &ill affect the ualit* of 8ustice.

(d Facilit% of evasion: It is possible# &hen the la& is kno&n in advance# to devise6ethods to evade or defeat the provisions of la&# and to escape fro6 the liabilitiesi6posed b* la&. 9o6e 8urists also point out that once the 6a3i6u6 li6it of thesanction of la& is fi3ed and announced# the a&e and respect sho&n to the la& inits un&ritten stage is likel* to be lost.

(e ndue and needless co'plexit%: As the activities of societ* beco6e increasingl*co6ple3# so &ill the la&. La& is beco6ing increasingl* volu6inous# co6ple3#and technical. )odification of la& has not actuall* i6proved the situation# but6ade it &orse. Interpretations and subtle distinctions that la&*ers and 8udges6ake assu6e 6ore i6portance than the provisions. ôu &ill easil* understandthis if *ou peruse the co66entar* on an* statute. or instance# the actual provisions 6a* run to ,@ pages# but the co66entaries &ill e3tend to ten ti6esthat nu6ber. All this renders the la& co6ple3 and the certaint* of la&# &hich &ehave earlier listed as one of the advantages# greatl* suffers.



The above co6parison bet&een legal and natural 8ustice# dra&ing one>s attention to theadvantages and disadvantages of legal 8ustice# is not intended to conve* the idea that onee3cludes the other. That &ill reall* be a distortion of realit*. In an* civilised legal s*ste6#ad6inistration of 8ustice according to la& is the basic rule &hich is supported and

supple6ented b* natural 8ustice. It is i6possible to e3clude 8udicial discretion. La& is6eant to lid# guide# and infor6 8udicial discretion. This is e3plicitl* recognised in 6an*legal s*ste6s. or instance# art !", of the )onstitution of India e6po&ers the 9upre6e)ourt to >pass such decree or 6ake such order as is

!:@




necessar* for doing co6plete 8ustice in an* cause or 6atter pending before J

it>. Article ,,5 e6po&ers the high courts to issue &rits for the enforce6ent8of unda6ental Rights and >for an* other purpose>. These provisions reveal U the

constitutional recognition of 8udicial discretion in India.

,0ternati:e et"ods o& Dispute Reso0ution

>Private vengeance> and self'help as 6ethods of resolving conflicts graduall* gave &a*to institutionalisation of ad6inistration of 8ustice through courts. -o&ever# the dela*#e3penditure# for6alities and technicalities involved in pursuing 8udicial re6edies causea sense of resent6ent in societ*. In countries like India# a vast section of the co66unit*finds the courts inaccessible because of high costs involved in litigation. Another li6itation of the courts is that 8udges 6a* not have the e3pertise to decide ver* co6ple3

technical issues that 6a* be involved in ad8udication. In ever* societ*# therefore# anu6ber of ad8udicative bodies continue to e3ist outside the 8udicial s*ste6.The tribunals occup* the 6ost pro6inent position a6ong such bodies. The* en8o*

statutor* po&ers to ad8udicate specific 6atters. ôu 6ust have heard of industrialtribunals# inco6e ta3 tribunals# custo6s tribunals etc. There are also do6estic tribunals#such as the disciplinar* co66ittee of the $ar )ouncil# to 6aintain discipline in a profession# or an organisation. These tribunals are vested &ith the 8udicial po&er of stateG but are not a part of the 8udiciar*. er* often tribunals &ill have e3perts in the particular area of ad8udication as 6e6bers. The* are not reuired to follo& the rigid procedurefollo&ed b* the courts. Even though a tribunal 6a* be a part of a govern6entdepart6ent# it is allo&ed to function independentl* as an ad8udicative bod*. The 6ainadvantages of tribunals are cheapness# e3pedienc*# e3pertise# and infor6alit*. In India#all tribunals are sub8ect to the 8urisdiction of the high courts# and the 9upre6e )ourt.

oluntar* 6ethods of dispute settle6ent are also i6portant. Arbitration# conciliation#and 6ediation are so6e such 6ethods. Arbitration is beco6ing increasingl* popular#especiall* in disputes relating to international trade agree6ents# because the parties cane3pect an e3peditious and fair decision fro6 an arbitrator &ho had been chosen &ith their consent. 9ettle6ent of disputes through conciliation# &hich is legall* recognised inlabour la&# &as being used as an infor6al 6ethod in settle6ent of other t*pes of disputes. Later on this 6ethod gathered 6o6entu6 as a part of the legal aid 6ove6ent inIndia. Lo" adalats, &hich literall* 6eans people>s courts# &ere organised in all parts of the countr* &ith the active involve6ent of 8udges and la&*ers for the settle6ent of disputes through conciliation. Lo"

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Gnding before / enforce6ent (visions reveal

licts graduall* irough courts# es involved in in societ*. In ds the courts /her li6itation /ver* co6ple3 ever* societ*# st outside the

g such bodies# ibu 6ust have G tribunals etc. co66ittee of n organisation. G but are not a /

the particular ollo& the rigid la* be a part of endentl* as an ire cheapness# s are sub8ect toadalats &ere granted statutor* recognition b* an a6end6ent to the Legal 9ervicesAuthorities Act in the *ear ,%%,# and no& their decisions have binding force. ediation

as a 6ethod of dispute settle6ent is still a part of our social ethos 6ainl* due to theintervention of religious and political groups# social organisations# professional bodies#local bodies# and elders of the co66unit*.

Another i6portant 6echanis6 for redressal of grievances against the ad6inistration#&hich has a long histor* of effective functioning in the 9candinavian countries# is theo6buds6an. In India# a proposal to establish an o6buds6an ' t*pe institution called Lo"pal is under active consideration. 9everal states alread* have si6ilar institutionscalled Lo"ayu"tas, &hich are 6ainl* concerned &ith allegations of corruption and 6al'ad6inistration. The 6ain advantage of the s*ste6 is that a co6plainant is not reuired to pa* an* court fee# or incur an* other e3pense. There are also o6buds6en for particular sectors such as banking and local bodies.

Thus# &e find that although courts continue to be the 6ost i6portant agencies of ad6inistration of 8ustice# the* cannot clai6 to be the onl* agenc*. Cther 6echanis6s of dispute settle6ent also have an effective presence in ever* countr*. The* serve a ver*useful purpose of not onl* reducing conflicts in societ*# but also relieving the pressure oncourts to a great e3tent. ro6 the individual>s point of vie&# &hat 6akes 6ethods of alternative dispute resolution attractive is the efficienc*# fle3ibilit*# and infor6alit* intheir functioning.

The 8urisprudential uestion that arises for consideration is &hether natural 8usticescores a point over legal 8ustice through these institutions.

int. Arbitration# ion is beco6ing Grnational trade nd fair decision t. 9ettle6ent of ! in

labour la&# r other t*pes of part of the legal people>s courts# involve6ent of /onciliation. Lo"



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%,R) ('

Ele6ents of La&







11



Lecture /6

Ri$"ts and Duties

The structure of la& is built &ith a nu6ber of co6ponent concepts# &hich are so6eti6escalled the ele6ents of la&. The 6ost i6portant ele6ents of la& have been identified asfollo&ing/

(i Legal rights and dutiesG (ii C&nershipG (iii PossessionG (iv PersonsG

(v TitlesG (vi Propert*G (viiCbligationG (viii Liabilit*G (i3 Procedure.

e &ill discuss legal rights and duties in this lecture# and the other ele6ents of la& inthe subseuent lectures.

The idea of rights and duties is central to the functioning of an* legal s*ste6. Peoplerecognise the need for la& pri6aril* as a 6eans to protect their rights. hen &e think of one person>s rights# the idea of dut* also is necessaril* i6plied because a right cannote3ist unless the dut* to respect that right in others is also recognised.

Ri$"ts

e hear the &ord >right> used in a variet* of conte3ts. e speak of funda6ental rights#hu6an rights# legal rights# and 6oral rights. e also speak of rights of specific groups#such as rights of children# rights of &o6en# rights of 6inorities# rights of refugees or even rights of unborn children# or rights of ani6als. 9o6eti6es# our discussion of rights6a* assu6e the for6 of a right to so6ething# as right to education# right to food# or right



r


(

to health. It also happens that the sa6e right 6a* 6ean different things to different people as in the case of the right to eualit*. The conceptualisation of rights is# therefore#one of the 6ost difficult proble6s# not onl* for 8urisprudence# but also for individuallegal s*ste6s.

The English &ord >right> literall* has t&o 6eanings. In one sense# it 6eans &hat iscorrect or 8ust to do. That is the 6eaning &hen &e sa* >I a6 right> or >he is right>.-o&ever# &e use the &ord in a different sense &hen &e sa* that >I have a right to speak>

or *ou have a right to get ad6ission>. The fact that 6an* languages including English#+er6an# and rench have the sa6e &ord to denote right# both in the sense of being rightand having a right# sho&s that the hu6an 6ind considers these t&o 6eanings as the sa6eor at least interrelated. e 6a*# therefore# sa* that a person has a right onl* &hen othersconsider it right to allo& such a right. The >rightness> of the right 6ust be accepted b*others# b* the societ*# and for6all* b* the state and the legal s*ste6.

A legal right is co66onl* defined as an interest recognised and protected b* la&.Individuals &ill have several interests. or instance# left to 6*self# 6* interest 6a* be purel* selfish. The* 6a* e3tend to taking over 6* neighbour>s propert*# or his carG pla*ing loud 6usic and dancing at 6idnightG driving the car at prohibitive speed on a bus* high&a*# etc. It is obvious that la& cannot recognise and protect all these interests.

It# therefore# beco6es necessar* to select those interests &hich are &orth* of legal protection. Cn &hat basis such interests are selected depends on the policies and priorities of each individual legal s*ste6. Cne legal s*ste6 6a* not recogniHe the rightof &o6en to be treated euall* &ith 6en. Another legal s*ste6 6a* not recogniHe theright of an accused person to a fair trial.

The interests of 6en conflict &ith one another. La&# being the rule of 8ustice appraisessuch interests and selects onl* so6e for protection. Ihering regards as legal rights such of these interests as have obtained legal protection. According to hi6# one can be said to ahave a right onl* &hen there e3ists so6e advantage for that person# &hich is protected b* the state. In ever* case# the e3istence of a legal right is dependent upon thecircu6stance that so6e hu6an interest has secured the protection of the state.

9al6ond defines a legal right as an interest recognised and protected b* a rule of 8ustice. The &ord >interest> i6plies an* interest# respect for &hich< is a dut*# and disregardof &hich is a &rong. This definition contains t&o essential ele6ents# viH# legalrecognition# and legal protection. $oth these ele6ents should si6ultaneousl* andconcurrentl* be present in an interest for its transfor6ation as a legal right. A legalrecognition of an interesT &ithout legal protection does not 6ake it enforceable in a courtof la&# as for e3a6ple# ti6e barred debts. 9i6ilarl*# legal protection of an interest



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,i)hts and 4uties

t"in$s to ua0isation on0y &or

sense= it say ( am nse !"en (mission. d *renc" ri$"t and meanin$s 0erson "as $"t.

)"e iety= and

protected -o myse0&= o:er my ncin$ at = etc. (t is t"ere&ore= o& 0e$a0 X po0icies may

not ,not"er &air tria0= 0e ru0e o& I. ("erin$ 0ed 0e$a0 on0y !"en d ;y t"e upon t"e an o&

t"e

tected ;y or !"ic" tains t!o ot" t"ese ti interest / interest s& 0a!= as / interest

!it"out its 0e$a0 reco$nition cannot make it a 0e$a0 ri$"t. #"en 0a! prescri;es

punis"ment &or crue0ty to anima0s= it protects t"e interests o& anima0s. 2o!e:er= t"e

interest reco$nised ;y t"e 0a! is t"at o& t"e society at 0ar$e !"ic" desires t"e !e0&are

o& its anima0s. Sa0mond maintains t"at anima0s "a:e no ri$"ts o& t"eir o!n.)"e second part o& Sa0monds de&inition t"at a 0e$a0 ri$"t is any interest= respect o&

!"ic" is a duty and disre$ard o& !"ic" is a !ron$= needs some e0a;oration. )"e

Fuestion !"et"er a persons interest amounts to a ri$"t depends on !"et"er t"ere

exists !it" respect to it a correspondin$ duty imposed upon any ot"er person.

*urt"er= ri$"t is an interest= t"e :io0ation o& !"ic" !ou0d ;e a !ron$. Ri$"ts 0ike

!ron$s and duties are eit"er mora0= or 0e$a0. , mora0 or natura0 ri$"t is an interest

reco$nised and protected ;y mora0 or natura0 <ustice= :io0ation o& !"ic" !ou0d ;e a

mora0 or natura0 !ron$= and respect &or !"ic" is a mora0 duty. , 0e$a0 ri$"t= on t"e

ot"er "and= is an interest reco$nised and protected ;y a ru0e o& 0e$a0 <ustice. (t is an

interest= a :io0ation o& !"ic" !ou0d ;e a 0e$a0 !ron$= and respect &or !"ic" is a 0e$a0

duty.Sa0mond &urt"er states t"at ri$"ts and duties are necessari0y corre0ati:es. 2e a0so

states t"at= t"ere can ;e no ri$"t !it"out a correspondin$ duty and duty !it"out a

correspondin$ ri$"t any more t"an t"ere can ;e a "us;and !it"out a !i&e and a

&at"er !it"out a c"i0d. (t is ;ecause e:ery duty must ;e a duty to!ards some person

or persons in !"om a corre0ati:e ri$"t is :ested. +on:erse0y= e:ery ri$"t must ;e a

ri$"t a$ainst some person or persons upon !"om a corre0ati:e duty is imposed.

@ray does not accept Sa0monds de&inition o& a 0e$a0 ri$"t as an interest. 2e

de&ines a 0e$a0 ri$"t as t"at po!er !"ic" a man "as= to make a person or persons do

or re&rain &rom doin$ a certain act or acts= so &ar as t"e po!er arises &rom society

imposin$ a 0e$a0 duty upon a person or persons. 2o00ands de&inition o& a 0e$a0 ri$"t

as a capacity residin$ in one man o& contro00in$= !it" t"e assent and t"e assistanceo& t"e state= t"e actions o& t"e ot"ers a0so is in a$reement !it" @rays approac".

E:ery ri$"t in:o0:es a vinculu' &uris# or ;ond o& 0e$a0 o;0i$ation= !"ic" connects

t"e ri$"t to a correspondin$ duty. Lookin$ at t"e situation &rom a di&&erent

perspecti:e= !e can say t"at e:ery duty must ;e to!ards some person or persons in

!"om a corre0ati:e ri$"t is :ested. Ri$"ts and duties are t"us corre0ati:es.



Duties

Just no! !e "a:e said t"at ri$"ts and duties are corre0ati:es. (n common par0ance

a0so= !e t"ink o& duties as correspondin$ to ri$"ts. 2o!e:er= is it possi;0e to t"ink o&

duties to !"ic" no correspondin$ ri$"ts are attac"ed

/94




Austin# &ho takes strong ob8ection to 9al6onds assertion that rights and duties arenecessaril* correlative classified duties into t&o# viH# relative duties# and absoluteduties. According to Austin# all rights have correlative duties but not vice versa# ie# all

duties do not have correlative rights. Duties &hich do not have correlative rights areter6ed b* Austin as absolute duties. -e enu6erates four kinds of absolute duties. The*are/

(i Duties not re$ardin$ persons

These co6prise duties to&ards +od and the lesser beings. Duties to +od are notinfact legal duties at all. Duties to&ards lesser beings are also generall* notconsidered as legal duties to&ards the6. If the la& prohibits cruelt* to ani6als#then it is a dut* to the state. In so6e other cases# the dut* 6a* be to the o&ner of the ani6al.

(ii Duties o!ed to persons inde&inite0y

or instance# duties to&ards the co66unit*. 9al6ond does not accept Austin>s vie&that rights can be vested onl* &ith deter6inate individuals# and that anindeter6inate bod* like the co66unit* at large is incapable of holding rights. -easserts that there can be no convincing reason for confining rights to deter6inateindividuals onl*. The co66unit* at large can and does possess interests &hich it

enforces through its representative# the govern6ent# 6uch as specific < individualsdo. 9al6ond sa*s# >all duties to&ards the public correspond # to rights vested in the public and ever* public &rong is necessaril* < the violation of a public right>.)o66enting on these kinds of duties# Paton sa*s that the* are correlative of the

right inhering in each _ 6e6ber of the co66unit*. The general dut* to&ards theco66unit* I breaks up into a 6ass of duties to&ards each particular individual. (

(iii Se0&>re$ardin$ duties

In this case also# 8urists have uestioned Austin>s classification sa*ing that therecannot be a legal dut* o&ed to oneself. The dut* not to = co66it suicide is not adut* one o&es to oneself# but is a part of the cri6inal la&# and sub8ect to the sa6eanal*sis as an* other dut* o& the cri6inal la&. J

(iv Duties o!ed to t"e so:erei$n

Austin believes that a right'dut* relationship can e3ist bet&een t!o < pt'v*atv'#

otI' I Is aooNe t6 a potaucai supenoi &ho &ill enforce the obligation. The sovereign has no superior# and hence 6a* change thela& &henever he desires. In taking this vie&# Austin does not take into account thefact that the state is bound b* la& U

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Austin# &ho takes strong ob8ection to 9al6ond>s assertion that rights and duties arenecessaril* correlative classified duties into t&o# viH# relative duties# and absolute duties.According to Austin# all rights have correlative duties but not vice versa# ie# all duties do

not have correlative rights. Duties &hich do not have correlative rights are ter6ed b*Austin as absolute duties. -e enu6erates four kinds of absolute duties. The* are/

(i Duties not re$ardin$ persons

These co6prise duties to&ards +od and the lesser beings. Duties to +od are notinfact legal duties at all. Duties to&ards lesser beings are also generall* notconsidered as legal duties to&ards the6. If the la& prohibits cruelt* to ani6als#then it is a dut* to the state. In so6e other cases# the dut* 6a* be to the o&ner of the ani6al.

B

(ii Duties o!ed to persons inde&inite0y

or instance# duties to&ards the co66unit*. 9al6ond does not accept Austin>svie& that rights can be vested onl* &ith deter6inate individuals# and that anindeter6inate bod* like the co66unit* at large is incapable of holding rights. -easserts that there can be no convincing reason for confining rights to deter6inateindividuals onl*. The co66unit* at large can and does possess interests &hich itenforces through its representative# the govern6ent# 6uch as specific individualsdo. 9al6ond sa*s# >all duties to&ards the public correspond to rights vested in the public and ever* public &rong is necessaril* the violation of a public right>.)o66enting on these kinds of duties# Paton sa*s that the* are correlative of theright inhering in each 6e6ber of the co66unit*. The general dut* to&ards theco66unit* breaks up into a 6ass of duties to&ards each particular individual.

(iii Se0&>re$ardin$ duties

In this case also# 8urists have uestioned Austin>s classification sa*ing that therecannot be a legal dut* o&ed to oneself. The dut* not to co66it suicide is not adut* one o&es to oneself# but is a part of the cri6inal la&# and sub8ect to t"e sa6eanal*sis as an* other dut* of the cri6inal la&.

(iv Duties o!ed to t"e so:erei$n

Austin believes that a right'dut* relationship can e3ist bet&een t&o U persons onl*if there is above the6 a political superior &ho Y enforce the obligation. The

sovereign has no superior# and hence U 6a* change the la& &henever he desires. Intaking this vie&# Austin does not take into account the fact that the state is bound b*la&

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,i)hts and 4uties

rights and H# relative correlative its. Duties ute duties.

Duties to beings are If the la& e. In so6e

not accept ter6inate n6unit* at can be no individuals its &hich it i as specificcorrespond necessaril* Is of duties# ng in each co66unit* individual.

tion sa*ing lur* not to part of t"e her dut* of

et&een t&o ir &ho &ill and hence >ie&# Austin und b* la&

(



(

until the la& is changed. There are also several li6itations on the po&er to changethe la&. e do not find 6an* supporters of Austin>s classification in 6odern ti6es.It also goes against the &ell accepted principle in all 6odern legal s*ste6s that the

state is bound b* statute# unless specificall* e3e6pted.

Treating all the above four absolute duties as public duties# 9al6ond asserts that therecan be no dut* &ithout a correlative right. )ertain duties correspond to public rights# ie#rights vested in the co66unit* at large or the state as representative of the co66unit*. Itis# therefore# incorrect to sa* that these so'called absolute duties have no correspondingrights.

Duties 6a* be either 6oral or legal# though these t&o classes so6eti6es overlap. Adut* not to steal is legal as &ell as 6oral# but a dut* to help a person in need is onl* a6oral dut*. A dut* to speak the truth 6a* be legal or 6oral depending on the conte3t. Adut* beco6es legal &hen the la& recognises it as a dut*# and enforces the perfor6ance of

it. -o&ever# sanction is not al&a*s a necessar* ingredient of a legal dut*# and it 6a* beabsent in e3ceptional cases.

E0ements o& a Le$a0 Ri$"t

or a clear understanding of the concept of a legal right# &e &ill follo& 9al6ond>s6ethod of anal*sis &hich splits a legal right into the follo&ing five essential ele6ents/



(i )"e o!ner or t"e su;<ect o& t"e ri$"t

A person in &ho6 the right is vested 6a* be called the o&ner or the sub8ect of aright. -e is the person entitled or the person of inherence. The o&ner of a right neednot necessaril* be certain or deter6inate. here the o&ner is an unborn person# the person entitled is uncertain. here a right is o&ned b* societ* at large# the o&ner is

indeter6inate.

(ii )"e person o& incidence

-e is the person bound b* dut*# and 6a* be called the sub8ect of the dut*. -e is the person against &ho6 the right avails.

(iii+ontent

The act or forbearance# &hich the person in &ho6 the right resides can e3act# iscalled the content of the right. It is an act or o6ission# &hich is obligator* on the person of incidence to the person of inherence.

/

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(iv )"e o;<ect

9o6ething to &hich the act or o6ission relates is the ob8ect of the right. -olland points out the possibilit* of rights# &hich have no ob8ect. As an illustration# he

narrates the follo&ing situation. 9 is !s servant. -ere ! is the person of inherence#and 9 is the person of incidence. Reasonable service is the content of the right.-olland sa*s that the ob8ect of the right should be so6e 6aterial thing# &hich islacking here. Repl*ing to -olland# 9al6ond observes that the ter6 >ob8ect> need not be so narro&l* defined. The ob8ect of a right is as essential an ele6ent in the idea of right as the sub8ect of the right itself. In the illustration# the ob8ect of the right is theskill# kno&ledge# strength# ti6e etc# of the person bound b* the dut*.

(v )it0e

Title denotes certain facts or events b* virtue of &hich the right has beco6e vested

in its o&ner.

No& let us anal*se ho& these five ele6ents are present in a situation &here ! bu*s a piece of land fro6 9* -ere ! is the sub8ect or o&ner of the right so acuired. The persons bound are the public at large# for it is a right available against persons generall*. Thecontent of the right consists in non'interference &ith !0s e3clusive use of the land. Theland itself is the ob8ect of the right. The title is the conve*ance b* &hich the land &asacuired b* ! fro6 9*

hen &e tr* to understand a right fro6 the o&ner>s perspective# &e find that ever*right involves one of the three relationships# viH#

(i It is a right against so6e person or personsG(ii It is a right to so6e act or o6ission of such person or personsG or (iii It is a right over so6ething or to so6ething to &hich the act or o6ission relates.

A sub8ect in &ho6 the right inheres# and an ob8ect in respect of &hich it e3ists are theessential ele6ents in the right. It is i6possible to think of a right &ithout an o&ner#though the o&ner 6a* be uncertain or indeter6inate. 9i6ilarl* there cannot be>an* right&ithout an ob8ect. The follo&ing classification of rights is based on the ob8ects/

(a ,i)hts over 'aterial thin)s: -ere the ob8ect is land# house# furniture# car# &atchetc.

(b ,i)hts in respect of one0s own person: or instance#(i I have a right not to be killed. The ob8ect is 6* life# (ii I have a right not to be ph*sicall* in8ured or assaulted. The ob8ect is 6* bod*# health# and integrit*.

!15



,i)hts and 4uties

i8ect of the /h have no '* 9 is !s

person of t& -olland ing# &hich /s that theof a right 8ect of thethe skill# le dut*.

/ right has

ion &here the right is a right insists in Gelf is the land &as

(iii I have a right not to be i6prisoned. The ob8ect is 6* personal libert*.

(iv I have a right not to be coerced# or deceived into acting contrar* to 6*desires or interests. The ob8ect is 6* abilit* to fulfill 6* desires and protect and pro6ote 6* interests b* 6* o&n free &ill.

(c ,i)hts of reputation: The ob8ect is the good na6e of a person# &hich constitutesan asset as valuable as an* 6aterial thing.

(d ,i)hts in respect of do'estic relation: E3a6ples are# rights of co6panionship of husband and &ife# parent>s right to societ*# affection and the securit* of their children.

(e ,i)hts in respect of other ri)hts: If ! enters into an agree6ent &ith 9 to sell hisland &ithin one *ear# 9 acuires a right against ! to have the land transferred to hi6

&ithin the stipulated ti6e. 90s present right is a right to have the o&nership of landtransferred to hi6 at the stipulated ti6e. hen the sale deed is e3ecuted# ! acuiresthe o&nership right itself.

(f ,i)hts over abstract propert%: E3a6ples are# cop*right# patent# good&ill etc.

(g ,i)ht to services: E3a6ples are right of a 6aster over his servants. Di&&erent

eanin$s o& Ri$"t

ctive# &e

/rsonsG or le act or



&hich it ink of a tain or ect. The

irniture#

id* Thee can identif* four different 6eanings of the &ord >right>. The first is right in the strictsense# ie# I have a right &hen the la& li6its the libert* of others on 6* behalf. The secondis libert*G &hen the la& allo&s to 6* &ill a sphere of unrestrained activit*. The third classof rights is po&er# &hen the la& activel* assists 6e in 6aking 6* &ill effective# and thelast is i66unit*# &hen the la& denies to others a particular po&er over 6e. e &ill no&e3a6ine these four classes of rights in detail.

Right in the 9trict 9ense or Stricto Senso

These rights 6a* be defined as the interests# &hich the la& protects b* i6posing duties&ith respect to the6 upon other persons. In that sense# it is a clai6 or de6and on another

person. +ra* and -olland la* e6phasis upon an affir6ative control over another as the6ost i6portant aspect of rights in the strict sense. If I have the capacit* to control *our

acts# I have a right over *ou# and *ou are co66anded b* la& to behave to&ards 6e in a particular 6anner. Thus# *ou are under a dut* or obligation to&ards 6e. in this &a*#

rights and duties



are correlative. or instance# if ! has a right

!12




against that shall not enter $2s land# then is under a dut* to keep a&a* &rom $2sland. It is also called a clai6 because I have a clai6 or de6and on another person for a particular act or forbearance.

Li;erty or %ri:i0e$e

Libert* denotes benefits# &hich derive fro6 the absence of legal dut*. It is also called a privilege. * libert* consists in 6* freedo6 to do or not to do a thing as I please. Thereis no dut* cast upon 6e b* la& to do or not to do a particular act. hen I have the libert*to do so6ething# I 6a* do that &ithout being prevented b* the la&. or instance# I have aright to do as I please &ith 6* o&n thingsG but I have no right and no libert* to interfere&ith &hat belongs to an* other person. I have a right to e3press 6* opinion# but shouldnot defa6e the reputation of another. I have got the freedo6 to do certain things so long

as I do not infringe the rights of others. The freedo6 thus allo&ed b* la& constitutes aclass of legal rights different fro6 rights stricto senso. $ has the libert* to enter on hiso&n land and do an*thing &hich he pleases. The correlative of $s libert* is 2s >no right>to prevent $ fro6 doing &hatever he chooses to do on his o&n land. In the case of rights stricto senso, &e are concerned &ith things# &hich other persons ought to do for us. In thecase of liberties# &e are concerned &ith those things that &e 6a* do for ourselves.

In -ohfeld>s anal*sis of rights# &hich &e &ill discuss shortl*# the &ord >privilege> isused in the sa6e sense as libert*. Even though there are striking si6ilarities bet&eenthese t&o concepts# it is possible to 6ake a subtle distinction bet&een privilege andlibert*. hile libert* covers 8hose acts t88a8<ar<88r86aril* la&ful for all# privilegeco:er*tKose that are pri6a facie unla&ful but allo&able in certain circu6stances to all#or else to a li6ited nu6ber of persons. or instance# it is unla&ful for a person to 6akedefa6ator* state6ent about another person. A 6e6ber of Parlia6ent can 6ake adefa6ator* state6ent on the floor of the -ouse# &ithout an* fear of being 6ade liable# because he en8o*s a privilege as a 6e6ber of Parlia6ent.

%o!er

>Po&er> 6a* be defined as the abilit* conferred upon a person to deter6ine# b* his o&n&ill directed to that end# the rights# duties and liabilities# or other legal relations either of hi6self or of other persons. If this definition does not give *ou a clear picture of a po&er# so6e e3a6ples &ill 6ake its 6eaning clear. The right of a person to 6ake a &ill&ith regard to his properties# his right to alienate his propert*# the po&er of sale vestedin a

!1:





:i#hts and Duties

6ortgagee# a landlord>s right of re'entr* upon his land# a right of action# ie# a right of obtaining a 8udg6ent of court of la& in one>s favour# the right to rescind a contract for fraud# the right of taking out e3ecution in 8udg6ents# po&ers vested in 8udges and other

officials for the due fulfill6ent of their functions etc# are all e3a6ples of po&ers. The6ain point of difference bet&een po&ers and rights stricto senso is that po&ers have noduties corresponding to the6. * right to 6ake a &ill corresponds to no dut* in an*oneelse. A debt and a right of action for its recover* are not one and the sa6e. The for6er isa right in the strict sense corresponding to the dut* of a debtor to pa*G the latter is a legal po&er corresponding to the liabilit* of a debtor to be sued.

Po&ers are divided into public# and private. Public po&ers are those vested in a personas an agent of the state. The po&ers vested in 8udges or e3ecutive officers b* la& are public po&ers. Private po&ers are those possessed and e3ercised b* individuals in their private transactions.

Po&er 6a* be either abilit* to deter6ine the legal relations of other persons# or to

deter6ine one>s o&n legal relations. The for6er is a po&er over other persons# and iscalled authorit*. An officer of the ad6inistration has authorit* to cancel a licence. A 8udge has authorit* to declare a contract void. Po&er to deter6ine ones> o&n legalrelation is usuall* called capacit*. I have a capacit* to enter into a contract# of 6ake a&ill &ith regard to 6* propert*.

I66unit*

It is i66unit* fro6 the legal po&er of so6e other persons. The correlative of i66unit*is disabilit*. The e3e6ption given to diplo6ats of a sovereign state fro6 being tried before the courts of the state &here the* &ork is an e3a6ple of i66unit*. The ordinar*courts# &hich have 8urisdiction over all other persons in the states# have no 8urisdictionover the6. The diplo6ats thus en8o* an i66unit* fro6 the 8urisdiction of the courts of the state &here the* &ork as diplo6ats. Looking at it fro6 another perspective# &e cansa* that the courts are under a disabilit* so far as foreign diplo6ats are concerned.

The points of distinction bet&een the different kinds of rights &e have e3plained no&are clearl* brought out b* -ohfeld in the follo&ing &ords/ >A right is one>s affir6ativeclai6 against anotherG a libert* or privilege is one>s freedo6 fro6 a right or clai6 of another. A po&er is one>s affir6ative control over a given >lega>i reion as againstanotier# &hereas an i66unit* is one>s freedo6 fro6 that legal po&er or control of anothet as regards so6e legal relations.> Putting the distinction in a slightl* different &a*#

!11



Lectures in Jurisprudence s

Sa0mond sa*s/ lA right in the narro& sense is that &hich other persons ought to do in6* behalf. A libert* is that &hich I 6a* do innocenn*. po&er is that &hich I can doeffectivel* and an i66unit* is that &hich other persons cannot do effectivel* in respect

of 6e.> Thus# &e 6a* conclude that I en8o* 6* rights in the strict sense through thecontrol e3ercised b* the a& over the acts of others in 6* behalf. I use 6* liberties &iththe acuiescence of the la&. I use 6* po&er &ith the active assistance of la& in 6akingitself the instru6ent of 6* v. ! use 6* i66unities through its refusal to accord theactive assistance to others as against 6e.

2o"&e0ds ,na0ysis o& Ri$"ts

-ohfeld has developed a 6ethod of anal*sing the various kinds of rights &ith greatlogical refine6ent. -e identified the 6ain reason for 6isunderstanding and confusion inseeking to understand the nature of a right as the failure to appreciate the fact that the

&ord >right> is used &ith reference to four distinct legal concepts# na6el* a clai6# a privilege# a po&er# and an i66unit*. Though this categorisation is in agree6ent &ith thedifferent 6eanings of >right> &hich &e have alread* discussed# the contribution of -ohfeld 6ainl* lies in anal*sing the 8ural correlatives and opposites of these legalconcepts. irst of all# &e &ill turn to the &a* in &hich -ohfeld has defined the four basic concepts.

(aThe first categor* of rights is a right to clai6 so6ething. -ohfeld gives the rightof a lando&ner to recover his land or to obtain an order re8ecting a trespasser# ase3a6ple.

(b Privilege (or libert* is a right to the en8o*6ent of so6ething# as &here a

lando&ner en8o*s the right to go on to his o&n land.(cA po&er is a right to effect a legal transaction# as &here N has a right to sell his

land to M* (d An i66unit* is a right not being sub8ect to so6e disadvantage# as &here N# a

bankrupt# has the right not to have his clothes and certain other possessions seiHedand sold b* an officer of the court in e3ecution proceedings.

-ohfeld thus uses the &ord >right> in a narro& sense to refer to the first of the four categories# viH# a clai6# and also in a larger sense# to cover all the categories# viH# clai6s# privileges# po&ers# and i66unities.

Ne3t# -ohfeld introduces the idea of a correlative for each of the four categories of

right. $* a correlative# &hat he 6eans is the other side to a legal relationship. In the caseof N0s right to recover his land fro6 M# the correlative is M0s dut* to give up the land to N* The correlative of a right is# therefore# a dut*.

,%%





:i#hts and Duties

-ohfeld btain an

thing# as nd.

is a right

ntage# as d certain 3ecution

s first of r all the

the four ide to a i 5, the right is#

The correlative of a privilege# according to -ohfeld# is a no right. If 4 as lando&ner#has the privilege of going on to his o&n land and is# therefore# the onl* person entitled togo on to the land# the other side of the 6atter 6ust be that ever* one else has no right tostop $ entering his land. 9o an* other person has a >no right> that 4 shall not enter his o&nland.

The correlative of po&er is liabilit*. -ohfeld e3plained this &ith the follo&inge3a6ple. $ 6akes an offer to . has the po&er to bring a contract into being bet&eenthe6 b* accepting $2s offer. Thus# during the period that it is open to to accept $2s



ter6s# ie# during the period that has po&er to bind $, $ is liable to beco6e bound b*the contract. In this respect# $ is under a liabilit*.

The correlative of i66unit* is disabilit*. Thus# &here 4, a bankrupt# is i66une fro6having his clothes seiHed b* an officer of a court in e3ecution proceedings# the officer isdisabled fro6 seiHing the6.

The ne3t step in -ohfeld>s anal*sis is the introduction of 8ural opposites. A right and its 8ural opposites cannot be there at the sa6e ti6e# as a piece of &hite paper cannot at thesa6e ti6e be black. If $ has a right to e3clude fro6 his land# $ cannot at the sa6e ti6ehave a >no right> to do so. The opposite of a right# -ohfeld sa*s# is a >no right>. No& &hatis the 8ural opposite of a privilegeF If $ has the privilege of going on to his o&n land# it isobvious that he cannot at the sa6e ti6e be under a dut* in the sa6e regard. 9o# theopposite of a privilege is a dut*.

The opposite of a po&er is a disabilit*. If $ has a po&er to transfer the title of his landto , he cannot at the sa6e ti6e be under a disabilit* that prevents hi6 fro6 doing so.The opposite of i66unit* is liabilit*# because an i66unit* and a liabilit* in respect of the sa6e thing cannot be there in the sa6e person at the sa6e ti6e. If $ is i66une fro6

having his propert* seiHed b* a court officer# he cannot be liable to have the6 seiHed atthe sa6e ti6e.e can understand -ohfeld>s sche6e at a glance b* placing the correlatives and

opposites of each for6 of right.+orre0ati:e

pposite

)a;0e /- 2o"&e0ds )a;0e o& +orre0ati:es and pposites

Dut* No right



Liabilit* Disabilit* No right Dut*

Disabilit* Liabilit*

*orm o& ri$"t

Right

PrivilegeLibert*

Po&er I66unit*

/

75/




The relations bet&een these various categories of rights# their 8ural correlatives and their 8ural opposites# is clearl* brought out b* the follo&ing t&o diagra6s/

Dia$ram /

Lia;i0ity

%o!er



Dia$ram 7

In these r&o diagra6s# the vertical arro&s connect 8ural correlatives. A vertical arro&6a* be interpreted either &a* as >—is the presence of—in another.> Thus# &e get thefollo&ing propositions/

(a Right is the presence of dut* in another# or dut* is the presence of right in another. (bLibert* is the presence of no'right in another# and vice versa. (c Po&er is rhe presence of liabilit* in another# and vice versa.



(dI66unit* is the presence of disabilit* in another# and vice versa.

757



:i#hts and Duties

The diagonal arro&s in the diagra6s connect 8ural opposites. The* 6a* beinterpreted either &a* as >is the absence of—in oneself. ro6 this# &e get thefollo&ing propositions/

(a Right is the absence of no'right in oneself# or no'right is the absence of right in oneself.

(b Libert* is the absence of dut* in oneself# and vice versa. (c Po&er is the absence of disabilit* in oneself# and vice versa.

(d I66unit* is the absence of liabilit* in oneself# and vice versa.

No& &hat do the horiHontal arro&s indicateF The* connect the opposites of correlatives. e can interpret a horiHontal arro& either &a* as >—is the absence of —in another>. This leads us to the follo&ing four propositions/

(a Right is the absence of libert* in another or libert* is the absence of rightin another. (b Dut* is the absence of no'right in another# and vice versa.

(c Po&er is the absence of i66unit* in another# and vice versa.

(d Liabilit* is the absence of disabilit* in another# and vice versa.

These diagra6s provide us a 6ethod of defining all the eight e3pressions in thediagra6s in ter6s of three others in the sa6e diagra6. The first diagra6 broadl*relates to static legal relationships# &hile the second relates to the changing of relationships.-ohfeld>s anal*sis of legal rights in ter6s of 8ural correlatives and opposites has

influenced and shaped conte6porar* discussions on rights. 9o6e co66entatorshave dra&n attention to the li6itations of -ohfeld>s (sche6e# &hich &e &ille3a6ine briefl* no&/

(a 9o6e critics point out that the ter6s &hich -ohfeld e6plo*s are6isleading. or instance# the* suggest the ter6 >libert*> &ould conve* the6eaning of the ter6 >privilege> better. Is it not better# the* ask# to sa* that $ isat libert* to go on to his o&n land than sa*ing that $ has a privilegeF

(b )ritics &ho accept -ohfeld>s sche6e in its application to civil la& A (

point out to its inadeuacies to 6eet various situations in cri6inal 6 la& and public la&# &here duties e3ist# but no -ohfeldian correlative

can be found.of Z (c Another criticis6 is directed to -ohfeld>s failure to define a right in a general

sense. -e does not e3plain the co66on features shared b* right (in the sense of clai6# privilege# po&er# and i66unit*# (d Those &ho accept the logicalcoherence of -ohfeldian sche6e point out that it does not provide thecategories necessar* to acco66odate# the kind of relationships that e3ists in practice. The innu6erable



754




suare pegs that e3ist in practice cannot be fitted into -ohfelffs8 eight round holes.

These criticis6s do not dilute the significance of his contribution to 8urisprudence. The

fact that eight* t&o *ears after -ohfeld published his &ork#! e3plaining his anal*sis of legal rights# his anal*sis still continues influence 8udges and 8urists# is sufficient to provethe strength of his anal*sis# <

+0assi&ication o& Le$a0 Ri$"ts \

The follo&ing classification of rights is 6ainl* based on their nature and legal incidents.This classification is intended to give us a better understanding of the operation of theconcept in the legal process. e &ill e3a6ine the different &a*s in &hich rights areclassified.

%er&ect and (mper&ect Ri$"ts

A right is considered perfect &hen it is enforceable through a court of la&. There is acorresponding dut* for the breach of &hich a civil or cri6inal action &ill lie. udg6ent&ill be e3ecuted if necessar* &ith the ph*sical force of the state.

There are certain other rights# &hich are not so enforceable. The* art called i6perfectrights. )lai6s barred b* lapse of ti6e# clai6s unenforceable on account of so6etechnical defect such as insufficient sta6p or nonregistration# belong to the categor* of i6perfect rights. Lapse of ti6e does not destro* the right# but reduces a perfect right intoan i6perfect right# Though unenforceable as such# an i6perfect right 6a* serve a useful

purpose in the follo&ing situations/

(aAs a ground of defence though not as a ground of action# for e3a6ple right of set'off.

(b To support an* securit* that has been given for it. A 6ortgage & pledge re6ains perfectl* valid# although the debt secured b* it has ceased to be recoverable b*action.

(chen it is converted to a perfect right. The right of action 6a* not be non'e3istent# but 6a* be 6erel* dor6ant. An infor6al verbal contract 6a* beco6e enforceableif so6e &ritten evidence of it conies into e3istence# as for instance# anackno&ledge6ent of liabilit*.

Rights against the state &ere earlier considered as i6perfect because a sub8ect can haveno right against the state. -o&ever# this is no 6ore correct. It is no& &ell accepted thatthe sub8ect 6a* have a legal right against the state# &hich can be enforced.

/ Funda'ental Le)al Conceptions as !pplied in Judicial ,easonin)# /974.

75








Jus ad re' or a Ri$"t to a Ri$"t

Jus ad re' is a right to a right. I have a <>uf YHY re6 &hen I have a right chat so6eother right shall be transferred to 6e# or other&ise vested in 6e. It is a right in persona6.E3a6ples of &us ad re' are a contract to assign propert* in future# a pro6ise of 6arriage

etc. -ere# t&o rights are involved. The right# &hich is to be transferred# 6a* be either aright in re6 or a right in persona6# but the other right# ie# a right to a right &ill al&a*s bea right in# persona6 onl*. J

%roprietary and %ersona0 Ri$"ts

The aggregate of a 6an>s proprietar* rights constitute his estate# his assets# and his propert*. This is called ver'o)en in +er6an 8urisprudence# and patro'oine or avoir inrench 8urisprudence. The su6 total of 6an>s personal rights constitutes his status# or personal condition as opposed to his estate. The 6ain distinction bet&een these t&o

kinds of rights lies in the fact that proprietar* rights are uantifiable# &hile personalrights are not. e 6a* sa* that proprietar* rights are ele6ents of a 6an>s &ealth# &hile personal rights are 6erel* ele6ents of his &ell'being. A person 6a* o&n land or chattels# patent rights# good&ill of a business# shares in a co6pan*# or debts due to hi6.All these are proprietar* rights. hatever rights a person has as a free 6an# a citiHen# ahusband# a &ife# a father or a 6other# are personal rights. A 6an>s right to personallibert* and to reputation are rights related to his status and &elfare# not his &ealth. Theseare not uantifiable because the* are not esti6able in 6one* value. hat can be6easured in ter6s of 6one* fall under estate. Thus# &e 6a* sa* that tie distinction bet&een estate and status is reall* the difference bet&een &ealth and &elfare.

The &ord >status> is used differentl* in different conte3ts. It 6a* denoc the full legal

position of a 6an# including both his personal and proprietar* capacit*. People speak of the status of a lando&ner# that of a trustee# or of an e3ecutor. -ere the &ord >status> isused in its &idest sense. 9o6eti6e the &ord >status> is used to refer onl* to the strictl* personal rights and liabilities of a person &ith the e3clusion of his proprietar* rights.hile discussing proprietar* and personal rights# the &ord >status> is used in this sense. Inanother sense# the &ord >status> is used to denote personal capacitia and incapacities# asthe incapacit* of a 6inor to enter into a valid contratt ourthl*# status 6a* denote theco6pulsor* position of a person fi3ed b* la& to &hich certain rights and duties 6a* beattached. This is different fro6 a contract# &hich is a product of agree6ent bet&een the parties. U

i

,%5



Ri$"ts in re propria and Ri$"ts in re aliena

In order to understand &hat is a right in re propria# &e have to understand a right in realiena first. A right in re aliena# &hich is also called an encu6brance# is one &hich li6itsor derogates fro6 so6e 6ore general rights belonging to so6e other person in respect of

the sa6e sub8ect 6atter. All other rights are rights in re propria* The right of a lando&ner 6a* be sub8ect to that of a tenant to the te6porar* use of the propert*# or to the right of aneighbouring lando&ner to the use of a &a* over his land# or to so6e other ease6ent. Aright sub8ect to an encu6brance is called a servient right# &hile the encu6brance &hichderogates fro6 it# is called the do6inant right. An encu6brance al&a*s runs &ith theright encu6bered b* it. This is &hat &e 6ean &hen &e sa* that the do6inant and theservient rights are necessaril* concurrent. It follo&s that the encu6brance goes &ith theencu6bered right into the hands of ne& o&ners. )hange of o&nership &ill not free theright fro6 the burden i6posed upon it. If a sub'6ortgage is created b* a 6ortgagee# thenthe original 6ortgage &ill be servient to the sub'6ortgage.

The i6portant kinds of encu6brances are/ (i Leases

It is the encu6brance of propert* vested in one person b* a right to be in possessionand use of it vested in another. -ere# &e find a separation of o&nership and possession. The lessee rightfull* possesses# but does not o&n the propert*. Thelessor is not the o&ner# but the person &ho transferred the possession to another.

(ii ServitudesA servitude is a right to the li6ited use of a piece of land unacco6panied either b*the o&nership# or possession. The 6ost co66on e3a6ples are a right of &a* over another 6an>s propert*# or a right to sunlight over one>s propert*. It is rightful use of propert* &ithout either o&nership# or possession. If ! and $ agreed that ! shall havee3clusive possession of a defined strip of 90s land# it is a lease. If ! and 9 agree that ! shall use a defined strip of land for the sole purpose of passage &ithout an*e3clusive possession or occupation of it# then it is a servitude. This 6ust bedistinguished fro6 a 6ere license# &hich is a grant of po&er to cross another 6an>sland once or t&ice.

(iii SecuritiesA securit* is an encu6brance vested in a creditor over the propert* of his debtor for the purpose of securing the recover* of the debt. The

,%2







:i#hts and Duties

euitable rights are those rights recognised onl* in the )ourt of )hancer*. Principles of euit* &ere evolved in English la& in order to 6itigate the rigours of ordinar* la&.Inspite of the fusion of la& and euit* b* the udicature Act !:2;# the historical

distinction still survives# and is relevant in so6e situations. Crdinaril*# certain for6alitiesare necessar* for the creation of legal rights. or the creation of a legal 6ortgage# thee3ecution of a docu6ent dul* registered is necessar*G but an euitable 6ortgage 6a* becreated b* 6ere deposit of title deeds.

hen t&o legal rights are found inconsistent# the first in ti6e generall* prevails. This ise3pressed b* the 6a3i6 26ui prior est tempore potior est 'ure2. A si6ilar principle isapplied &hen there is inconsistenc* bet&een t&o euitable rights. hen a legal right andan euitable right are in conflict# the legal right &ill prevail over the euitable right# eventhough subseuent in origin# provided that the o&ner of the legal right acuired it for value# and &ithout notice of prior euit*. As bet&een a prior euitable 6ortgage and asubseuent legal 6ortgage# the legal 6ortgage &ill prevail.

ested and )ontingent Rights

hen all the facts# &hich 6ust b* la& occur in order for the person in uestion to havethe right# have occurred# the right beco6es vested. A right re6ains contingent &hen so6e but not all of the vestitive facts have occurred. or instance# if a piece of land is gifted to ! for life and then to 9# if 9 survives !# ! gets a vested right and 9# a contingent right. 90s right is contingent because so6e of the vestitive facts have not *et taken place. It isalso possible that the vestitive facts 6a* never take place if 9 does not survive !*-o&ever# if 9 survives !# his contingent right beco6es vested. A contingent right is alsocalled an inco6plete right.

It is necessar* to distinguish a contingent right fro6 a 6ere hope or ipes* If ! givesso6e propert* in his &ill to 9# then 9 has no right to the propert* during !0s lifeti6e. -ehas no 6ore than a hope that he &ill obtain the propert*. This is not considered acontingent or inco6plete right# since it is open to ! at an* ti6e to alter his &ill.

)"eories on t"e Nature o& Ri$"ts ill or )hoice Theor*

There are t&o co6peting theories as to the nature of rights. The first# &hich is kno&n asthe &ill or choice theor*# vie&s the purpose of the la& as being to grant the &idest

possible 6eans of self'e3pression to the individual#

,%1




the 6a3i6u6 degree of individual self'assertion. The theor* identifies the right'bearer b* virtue of the po&er that he has over the dut* in uestion. -e can &aive it# e3tinguishit# enforce it# or leave it unenforceableG &hat he does is his choice. As -art# the 6ain

conte6porar* e3ponent of this theor*# sa*s/ >Individual discretion is the single 6ostdistinctive feature of the concept of rights>.This theor* has several inadeuacies# both 6oral and conceptual. t have a dut* not

to kill or torture an*bod*# and there is undoubtedl* i corresponding right. Is it per6issible for a potential victi6 to release others fro6 this dut* even if that is hischoiceF A ter6inall* ill patient 6a* &aive his right to life and ask for re6oval of the lifesupporting euip6ents# and thus put an end to his life. It is a uestion of great legal and6oral co6ple3it*# &hether a person has the right to &aive his right to life.

ac )or6ick attacks the &ill theor* using children>s rights. )hildren do not have theright to sue# but the* 6a* sue through a ne3t friend# usuall* their parent or guardian. If that person refuses to sue# that does not in an* &a* affect the e3istence of the right. The

&ill theor* has been accused of causing confusion bet&een the substantive right# and theright to clai6 it. Another proble6 relates to e6erging rights such as the rights of ani6als# environ6ental rights etc# &hich cannot be adeuatel* e3plained using the &illtheor*. The defenders of the theor*# ho&ever# dis6iss this criticis6 sa*ing that to use the&ord >right> in these conte3ts is no 6ore than inflated rhetorics. The fact that hu6anshave so6e dut* to&ards ani6als# eg# under the Prevention of )ruelt* to Ani6als Act#does not confer an* rights on the6. 9i6ilarl*# one 6a* speak about good and bad policies to&ards the environ6ent# but not about environ6ental rights. >

(nterest or ene&it )"eory

Another theor* of rights places the e6phasis on interests or benefits. hat a right protects is not choice# but so6e interest or benefits of the person &ho holds the right. Thetheor* concentrates attention on &hat is infact protected. Its supporters clai6 that theinterest or benefit theor* 6eets all situations# regardless of &hether the right holder is or is not the person &ho has a choice as to &hether steps should be taken to enforce theright. This theor* first found in the &ritings of $entha6 &as later adopted b* Ihering.The 6odern e3ponents include ac )or6ick# and RaH. The 6ainG advantage of the

interest theor* is that it enables us to talk of rights in advance of deter6ining e3actl* &hohas the dut* or needing to spell out in detail &hat is co6prised in the dut*. This theor*covers all t*pes of rightsG and all t*pes of right bearers# and# therefore# appears to be 6ore

convincingJ

,!%



,i)hts and 4uties

D!orkins )"eory o& Ri$"ts as )rumps

The 6ost significant contribution to the 8urisprudential theor* of rights in recent ti6es

has co6e fro6 the &ritings of Ronald D&orkin., -e develops a ver* sophisticated vie&of de6ocrac* arguing strongl* for individual and 6inorit* rights# rights &hich cannot beoverridden b* the legislature on si6ple polic* grounds. This theor* of de6ocrac* islinked to his vie& of the 8udicial process that 8udges act as the protectors of individualrights against the state# as &ell as bet&een individuals.

D&orkin>s theor* involves 6ore than si6pl* 8udicial protection of established rights# but has also the &ider di6ension of entrenching certain tights# &hether the* be againstthe govern6ent# such as the right to free speech# or bet&een individuals# such as the rightto recover da6ages for negligence. -e gives a special place to rights calling the6>tru6ps> over general utilitarian 8ustifications. In order to 6ake D&orkin>s theor*applicable to legal s*ste6s# it is necessar* to identif* not onl* the rights an individual

has got against the govern6ent and against other individual# but also the degree to &hicheach right is entrenched &ithin a given legal s*ste6. The 6ore entrenched or institutionalised a right is# the less the govern6ent is able to enact legislations# &hichunder6ine that right. D&orkin provides a general distinction bet&een abstract and background rights# and institutional or concrete rights. $ackground rights provide a 8ustification for political decisions b* societ* in the abstract. Institutional rights provide a 8ustification for a decision b* so6e particular and specified political institution. ithreference to $ritish conte3t# D&orkin sa*s that aright to free speech is not a concreteright contained in an* constitutional provisions. It is overridden on collective polic*grounds such as# preventing terrorist organisations fro6 having publicit* b* &a* of prohibiting 6edia report of their state6ents. )oncrete or institutional rights are 6ore

precisel* defined ai6s and at their 6ost concrete# grant individual rights beforeinstitutions such as the courts. It is possible that an abstract right 6a* graduall* getconcretiHed.

*undamenta0 Ri$"ts

D&orkin>s concept of entrenched rights find e3pression in the $ill of Rights in the)onstitution of Q9A# and the unda6ental Rights in the )onstitution of India. The 6osti6portant feature of these rights are that the* cannot be taken a&a* or abridged b*ordinar* legislation. Thus# these

7 Ta"in) ,i)hts Seriousl%# /933.

7//




rights are placed in a higher pedestal be*ond the reach of legislatures. E:en if thelegislature 6akes a la&# &hich contravenes a unda6ental Ri$"t= such la& &ill beinvalid. The higher 8udiciar* in e3ercise of the po&er o& 8udicial revie& can decide

&hether a la& contravenes a unda6ental Ri$"t= and then declare the la&unconstitutional. )onstitutions &ith entrenched rights contain the po&er of 8udicialrevie& either e3pressl*# or i6plicitl*.

Even in Q7# &hich has no &ritten )onstitution &ith entrenched rights# the enact6entof the -u6an Rights Act !11:# has virtuall* created i categor* of speciall* protectedrights b* incorporating the provisions o& European )onvention on -u6an Rights !1@%.Inspite of the doctrine o& parlia6entar* sovereignt*# $ritish courts can 6ake adeclaration o& inco6patibilit*# if the provisions of an* la& are found to be inconsistent&ith the provisions of the said )onvention.

In India# the )onstitution per6its the suspension of unda6ental Rights# e3cept theright to life and personal libert*# during national e6ergencies. It is also possible to

a6end# abridge# or take a&a*i unda6ental Right b* a6ending the )onstitution. Thus#the right to acuire# hold and dispose of propert*# &hich &as a unda6ental Ri$"t= &asdeleted b* the )onstitution (ort* fourth A6end6ent Act /938. -o&ever# the 9upre6e)ourt has i6posed a li6itation on the a6ending po&er of Parlia6ent b* la*ing do&nthat the basic structure of t"e )onstitution cannot be a6ended or abridged. unda6entalRights# &hich can be treared as an integral part of the basic structure of the )onstitution#are# therefore# be*ond the a6ending po&er of Parlia6ent.

It is also interesting to note that the content of 6an* unda6ental Rights enu6eratedin the )onstitution undergoes a change in course of ti6e as a result of 8udicial creativit*in interpretation. To give a pro6inent e3a6ple# &e can take the case of unda6entalRight to life and personal libert* in art ,! of the )onstitution. This right has beeninterpreted to include the right to livelihood# right to live &ith hu6an dignit*# right tounpolluted environ6ent# right to shelter# right to health# right to education etc. Thisclearl* sho&s the role of the 8udiciar* not 6erel* in thr8 enforce6ent# but also in theconceptualisation of rights. /

*undamenta0 Duties (

The )onstitutions of socialist countries generall* include unda6ental U Duties in the6# but other )onstitutions like the )onstitution of 9ri Lanka < also include unda6entalDuties. The )onstitution of India did not ( originall* contain an* unda6ental Duties#

but the* &ere subseuentl*K inserted b* the fort*'second a6end6ent of the )onstitution

in the *earG

7/7



,i)hts and 4uties

( I!125. The unda6ental Duties in the )onstitution are not considered as enforceablethrough courts of la&G but the* are considered i6portant because the perspective of the

)onstitution# &hich la*s e6phasis not onl* on unda6ental Rights but also onunda6ental Duties# is clearl* revealed. The enu6eration of duties also perfor6s aneducative role. In the interpretation of constitutional provisions and statutes# the courtshave 6ade use of unda6ental Duties for guidance and inspiration. These duties cannot be considered as the correlatives of an* rights in an*one. If &e accept Austin>sclassification# &e 6a* bring the6 under absolute duties.

Natura0 Ri$"ts and 2uman Ri$"ts

e find that the conte6porar* >rights talk> ver* often revolves around the idea of hu6an

rights. The increasing i6portance that the concept of hu6an rights has attained globall*#is indeed i6pressive. 9o our discussion of rights 6ust include hu6an rights also.

The idea of hu6an rights is ver* akin to natural rights. irst# let us tr* to understand&hat natural rights are. In an earlier lecture# &e have discussed natural la& in detail.hen &e sa* that natural rights are those rights recognised b* natural la&# the 6eaning#hopefull*# is clear to *ou.

The idea of natural rights has a ver* ancient origin. In ever* societ*# &e find anacceptance and recognition of the idea. +reek philosophers asserted the >natural> eualit*of 6en# and their conseuent right to freedo6. rench and A6erican revolutions &ereinspired b* the idea of rights of 6an. The )o66unist 6anifesto beca6e an influentialdocu6ent 6ainl* because of its denounce6ent of &age slaver* &hich &as degrading to

hu6an nature# and its appeal to all &orkers to assert their eual brotherhood. Natural rights 6a* be described as our rights as hu6an beings. The* e3ist

independentl* of la&s and govern6ents of ever* e3isting societ*. If the la& conde6ns ahu6an being to be a slave# he or another on his behalf# 6a* *et hold that he has a naturalright to be free. No& *ou 6a* ask# &hat is the nature of that rightF $* &hat status is thatright available to hi6F hich la& protects that rightF The onl* ans&er is that his naturalstatus as a 6an entitles hi6 to the right to be free. If that right is not guaranteed b* thela& of the state# positive la& falls short of the ideal set b* natural la&. Positivists



generall* den* the e3istence of natural rights. êt even a positivist like -art accepts thee3istence of the right to be free# &hen he sa*s# >if there are an* 6oral rights at all# itfollo&s that there is a least one natural right# the eual right of all 6en to be free>.

Natural rights 6a* be 6oral rights# but that does not 6ean that all natural rights are6oral rights. an* natural rights have a political character# and are not based on

6oralit*.

7/4




The phrase >natural rights> fell into disfavour due to the decline of natural la&. hathas e6erged in its place &ith greater force is hu6an rights. Although &e cannot sa* thatthere is co6plete agree6ent about the nature of hu6an rights or their substantive scope#

there is &idespread acceptance of the principle of hu6an rights at the do6estic as &ell asinternational level. The idea of hu6an rights is used to affir6 that individuals# solel* b*nature of being hu6an# have 6oral rights &hich no societ* or state should den*. Thisidea has its source in the theor* of natural rights.

Abstract notions of hu6an rights assu6ed a 6ore concrete and universall* acceptedfor6 &ith the adoption of the Qniversal Declaration of -u6an Rights (QD-R in the*ear !1":. It begins &ith a procla6ation in the Prea6ble that >recognition of the inherentdignit* and of the eual and inalienable rights of all 6e6bers of the hu6an fa6il* is thefoundation of freedo6# 8ustice and peace in the &orld>. The provisions of QD-R enu6erating specific rights also clearl* reveal the strong influence of natural la&. QD-R &as follo&ed b* 6an* international covenants and conventions containing 6ore specific

elaboration and enu6eration of hu6an rights.The 6ost i6portant a6ong such international docu6ents are the International)ovenant on )ivil and Political RightsG International )ovenant on Econo6ic# 9ocial and)ultural RightsG )onvention on the Eli6ination of All or6s of Discri6ination againsto6enG )onvention on the Rights of the )hildG and )onvention against Torture andCther )ruel# Inhu6an or Degrading Treat6ent or Punish6ent. These and 6an* other si6ilar docu6ents no& constitute a bod* of international hu6an rights 8urisprudence.

-u6an rights get transfor6ed into legal rights &hen the* are recognised and

incorporated in the la& of the state. Therefore# practicall* all the civil and political rights

have been incorporated in the )onstitution of India as unda6ental Rights. Econo6ic#

social and cultural rights &hich can be realised onl* b* collective action have been

included as Directive Principles of 9tate Polic*. urther# a nu6ber of la&s have been

enacted in order to fulfill India>s obligations under the international hu6an rights

docu6ents. Even &hen a la& has not been enacted# the 9upre6e )ourt underlined the

i6portance of hu6an rights and an obligation under the international conventions to la*

do&n legal nor6s to prevent se3ual harass6ent at &ork place.;

Another significant step &as the enact6ent of the Protection of -u6an Rights Act inthe *ear !11;# &hich defines hu6an rights as/ >the right

4 See @isha"a v State of,a&asthan ,(R/993S+45//.

7/



,i)hts and 4uties

relating to life# libert*# eualit* and dignit* of the individual guaranteed b* the)onstitution or e6bodied in the International )ovenants and enforceable b* )ourts inIndia>.

This definition is legalistic because it recognises as hu6an rights onl* those rights&hich are guaranteed b* the )onstitution or e6bodied in the international covenants# andenforceable b* courts in India. The 6ere e6bodi6ent of a right in a covenant is notsufficient. Infact# the idea of hu6an rights is 6uch &ider# and provides an ideal to&ards&hich legal s*ste6s should strive to reach through appropriate la&s and policies.In Q7# in order to fulfill the obligations of the state under the European )onvention on

-u6an Rights# the Parlia6ent enacted the -u6an Rights I Act in !11:. A peculiar feature of the Act is that it e6po&ers the 8udiciar* I to 6ake a declaration of inco6patibilit* if an* la& enacted b* the Parlia6ent U is found to be inconsistent &ith the provisions of the )onvention. This places hu6an rights above the ordinar* la&.

,!@





Lecture /3

!ners"ip

C&nership and possession are t&o &ords# &hich &e co66onl* use in our dail* life&ithout thinking about their legal incidents or conseuences. -o&ever# even &hen &euse these &ords in our ordinar* conversation# &e generall* associate certain rights andobligations &ith these &ords. It is surprising that a child &ho has not learned these t&o&ords is capable of understanding the 6eaning of these &ords# and also the difference bet&een the concepts of o&nership and possession. or instance# if *ou give a to* as a birthda* gift to a child# heshe i66ediatel* understands that the to* belongs to hi6her.-eshe considers hi6selfherself as the o&ner of the to*# and does not per6it others to

touch it. If heshe per6its another child to pla* &ith the to*# heshe e3pects that it &ill bereturned to hi6her after so6e ti6e. In hisher 6ind# there is a clear kno&ledge thatheshe is parting &ith the possession of the to*# but has no intention of giving upo&nership. Cn the other hand# heshe 6a* voluntaril* give the to* as a gift to her siblingor a dear friend. No& heshe has no e3pectation of getting it back# and kno&s that heshehas relinuished not onl* the possession of the to*# but also its o&nership. La& convertsthese si6ple ideas to legal concepts b* defining their 6eaning &ith precision andrefine6ent. e &ill e3a6ine the legal concept of o&nership in this lecture# and consider the concept of possession in the ne3t lecture.

C&nership as a legal concept denotes a legal relation bet&een a person &ho is calledthe o&ner of the right# and a thing over &hich he can e3ercise certain rights. The right of o&nership is the 6ost co6plete or supre6e right that can be e3ercised over an*thing. Itconsists of four rights# na6el*/

(i using the thingG (ii e3cluding others fro6 using itG (iiidisposing of the thingG and (ivdestro*ing it.

There are 8urists &ho do not consider o&nership as an aggregate of rights#




((] /

but as a single co6prehensive right. )onsider# for instance# the follo&ing observations of the &ell'kno&n 8urist arkb*/

i

If all the rights over a thing &ere centred in one person# the person &ould be the

o&ner of the thing and o&nership &ould e3press the condition of such a person in

regard to that thing. $ut the innu6erable rights over a thing thus centred in the

o&ner are not conceived as separatel* e3isting. The o&ner of land has not one

right to &alk upon it# and another right to till it. All the various rights# &hich an

o&ner has over a thing# are conceived as 6erged in one general right of

o&nership...To use a ho6el* illustration it is no 6ore conceived as an aggregate of

distinct rights than a bucket of &ater is conceived as an aggregate of separate

drops.!

hether &e consider o&nership as an aggregate of several rights or as a singleco6prehensive right# the idea of o&nership &ould be understood better if &e e3a6inethe incidents of o&nership. The follo&ing five incidents of o&nership give us a clear picture of o&nership as a legal concept/

(aThe o&ner has a right to possess a thing# &hich he o&ns. This does not 6ean that

he is al&a*s in possession# but onl* indicates his right to possess. A person 6a* be&rongfull* deprived of possession as in the case of $s &atch stolen b* . -ere has possession# but $ re6ains the o&ner &ith an i66ediate right to possession. $6a* also voluntaril* give possession of the &atch to so6ebod* else. -e 6a* lendit to % for a da* or give it to D fot repairs. $ is still the o&ner of the &atch# and heretains a right to repossess it aftet the per6itted period# or after repairs.

(b The o&ner nor6all* has the right to use and en8o* the thing o&ned# the right to6anage it# the right to decide ho& it shall be used# and the right to inco6e fro6 it.



These rights are so6eti6es called liberties# because the o&ner has a libert* to usethe thing# ie# he is under no dut* not to use it in contrast to others &ho are under adut* not to use or interfere &ith it.

(cThe o&ner has the right to consu6e# destro*# or alienate the thing. The rights toconsu6e and destro* are also liberties. The right to alienate# ie# the right to transfer

his right to another person# involves the e3istence of a po&er. The o&ner can sell or 6ortgage propert* during his lifeti6e or dispose of the propert* after his death b*&ill after co6pl*ing &ith the legal reuire6ents. A non'o&ner# even though he has possession# cannot nor6all* transfer the right of o&nership over a thing to another.The principle applied here is nemo dat 6uod non ha/at, ie# no 6an can give a better title than that &hich he hi6self has.

Ele'ents of Law# /951.

,!:



=wnership

& foil

o&ing

id ;e t"e a person entred in d "as not is ri$"ts= d ri$"t o& i$$re$ate separate

`hts or as a understood &e incidents icept/

s. This does idicates his f possession ision# but $ ion. $ 6a* d* else. -e I is still the itafter the

ing o&ned# e used# and 6es called ig# ie# he is ire under a

/ the thing# he right to n# involves Ge propert* ath b* &ill vner# even ie right of ed here istitle than





Another &a* of understanding the concept of o&nership is &ith the help of definitionsgiven b* e6inent 8urists. A &idel* accepted definition is that of Austin# &ho definedo&nership as a right indefinite in point of user# unrestricted in point of disposition# andunli6ited in point of duration over a deter6inate thing. Let us no& anal*se each of these

co6ponents.

(nde&inite in %oint o& User

It is practicall* i6possible to enu6erate the &ide variet* of &a*s in &hich the thingo&ned 6a* be used b* the o&ner. -o&ever# &hen Austin describes o&nership asindefinite in point of user# it 6a* not be taken to 6ean that the o&ner has an absoluteright to use his propert* in &hatever &a* he likes. All legal s*ste6s i6pose conditions onthe user of propert*. It is &ell accepted that ever* o&ner 6ust use the ob8ect of o&nershipso as not to in8ure the rights of other persons. or instance# a lando&ner cannot re6ove

earth fro6 his land so as to deprive the neighbour>s land of lateral support. 9i6ilarl*# theo&ner cannot use his propert* in such a &a* as to cause nuisance to his neighbours. Theancient 6a3i6# &hich e6bodies Zthis idea is sic utere tuo at alienum non leadas, ie# souse *our o&n propert* as not to in8ure *our neighbour>s. 9i6ilarl*# an o&ner cannot prevent the entr* of officers of the state into his propert*# &hen such entr* is authorised b* la& as in the case of an officer of 8ustice entering the pre6ises of an*one in pursuanceof a &arrant issued b* a court. C&nership is also sub8ect to encu6brances in favour of others# in &hich case the po&er of user en8o*ed b* the o&ner is curtailed b* the rights of encu6brances.

Unrestricted in %oint o& Disposition

This denotes the absolute rights of alienation en8o*ed b* an o&ner as a

7/9




necessar* incidence of o&nership. -o&ever# here again li6itations e3ist. The la&governing transfer of propert* 6a* seriousl* interfere &ith the o&ner>s po&er of disposition. or instance# a transfer of propert* 6ade &ith an intent to defeat or dela*

creditors is not per6issible under the la&. The rights of encu6brances also constitute ali6itation on the po&er of disposition.-indu 8urisprudence considers fitness for free disposal as a significant feature of the

concept of o&nership. The @ira'itroda%a2 gives the si6ile of a seed# &hich contains&ithin it the capacit* to ger6inate# and be convened into a sprout. arious causes 6a*i6pede this capacit*# but it cannot be said that the capacit* to ger6inate and take theshape of a *oung plant is not possessed b* the seed. 9i6ilarl*# though an o&ners po&er of dealing &ith his propert* 6a* be restrained b* various considerations# it cannot be saidthat o&nership does not connote >fitness for free disposal>.

Un0imited in %oint o& Duration

hen &e describe o&nership as unli6ited in point of duration# it 6eans that a right iscapable of e3isting so long as the thing o&ned e3ists. The right is not e3tinguished evenon the death of the o&ner# because o&nership devolves upon his heirs &ho are the persons appointed b* la& to succeed the propert* re6aining undisposed at the ti6e of hisdeath. This ualit* of o&nership also cannot be taken as absolute. There are situations#&hich li6it the duration of o&nership. or instance# a testator 6a* settle his propert* onhis &ido& &ith a condition that on her re6arriage# the propert* shall devolve upon hischildren. -ere the &ido& re6ains the vested o&net of the propert* until her re6arriage# but her o&nership is li6ited in point of duration. The rule against perpetuit* is another

li6itation upon the unli6ited duration# and po&er of disposition of the o&ner.9o6e other definitions of the concept of o&nership also deserve our attention. +7eeton defines o&nership as >the ulti6ate right to the en8o*6ent of a thing# as full* as the9tate per6its# &hen all prior rights in that thing vested in persons other than the oneentitled to the ulti6ate use# b* &a* of encu6brance# have e3hausted>. According to9al6ond# o&nership in a 6aterial thing is the general# per6anent# and inheritable right tothe users of that thing. Placing e6phasis on the po&ers of use and disposal# Pollock defines o&nership as the entiret* of the po&ers of use and disposal allo&ed b* la&.

inall*# it is to be stated that although &e speak of o&nership as a right# it &ould be preferable to speak of it as a collection of rights# liberties#

7 uoted in a"a<an 'D= Jurisprudence and Le)al Theor%# &i&t" edn= /983= p 44/.

775





(u'ership

po&ers and i66unities# follo&ing -ohfeld>s anal*sis. e 6ust also recognise thatso6e of these rights# liberties# po&ers and i66unities are freuentl* found to resideeither for a li6ited period# or perpetuall* in persons other than the o&ner.

Kinds o& !ners"ip

+orporea0 and Non>corporea0 !ners"ip

Crdinaril*# the sub8ect 6atter of o&nership is a ph*sical and 6aterial ob8ect. -o&ever#o&nership is not li6ited to 6aterial ob8ects. An*thing &hich is the sub8ect 6atter of aright# &hether 6aterial or i66aterial# can be the sub8ect 6atter of o&nership.

hen the sub8ect 6atter of o&nership is a 6aterial ob8ect or a corporeal thing# it iscalled corporeal o&nership. C&nership of land# building# 6otor vehicle etc# is corporealo&nership. hen an incorporeal thing is the sub8ect 6atter of o&nership# it is called

incorporeal o&nership. It 6a* be a right of &a*# or right to sunlight. Intellectual propert* rights like patent or cop*right are also incorporeal in nature. The o&ner of a6aterial ob8ect is he &ho o&ns a right to the general and residuar* uses of it# after thededuction of all special and li6ited rights of use vested b* &a* of encu6brance in other persons.

)orporeal o&nership is defined b* Pollock as the o&nership of a right to the entiret*of the la&ful uses of a corporeal thing. Pollock sa*s/ >If I o&n a rupee in 6* pocket anda right to receive another fro6 6* debtor# the first rupee is a thing corporeal# and theright to receive the second is a thing incorporeal. The latter is a chose in action &hereasthe for6er is a chose or thing in possession.>

)orporeal o&nership is a right in re propria* A right in re aliena is al&a*s

incorporeal# though ever* incorporeal o&nership is not necessaril* a right in re aliena*

So0e !ners"ip and Dup0icate !ners"ip

hen the o&nership is vested in a single person# it is called sole o&nership. hen it isvested in t&o or 6ore persons at the sa6e ti6e# it is called duplicate o&nership. Thereare four t*pes of duplicate o&nership. The* are/

(aco'o&nershipG (btrust and beneficial o&nershipG.

(clegal and euitable o&nershipG and(dvested and contingent o&nership.

< ,,!




e &ill no& e3a6ine the different t*pes of duplicate o&nership in 6ore detail. jCoRownership

A partnership is the 6ost fa6iliar e3a6ple of co'o&nership. In coo&nership# the propert* o&ned b* co'o&ners is not divided bet&een the6# each o&ning a separate part.It is an undivided unit# &hich is vested at the sa6e ti6e in 6ore than one person. If t&o partners have a credit balance of Rs !%#%%% in the bank and Rs @#%%% is due fro6 the bank

as a debt to both of the6 at once# each partner is entitled to the &hole a6ount. If the !

fir6 has an overdraft of Rs @#%%%# each partner &ould o&e to the bank the &hole of theoverdraft. hen each of the t&o co'o&ners begins to o&n a part of the thing instead of the &hole of it# the co'o&nership beco6es soleG o&nership# and the process is kno&n as partition. 8

The 8oint fa6il* s*ste6 is another e3a6ple of co'o&nership. It is i6portant tore6e6ber that co'o&nership is possible onl* to the e3tent per6itted b* la&. hen the

8oint fa6il* s*ste6 is abolished b* la&# coo&nership in properties o&ned b* the 8ointfa6il* co6es to an end. PartitionG and sole o&nership follo&. <

The English la& 6akes a distinction bet&een t&o t*pes of co'o&nershipK na6el*o&nership in co66on# and 8oint o&nership. The 6ost i6portant# difference bet&eenthese t&o relates to the effect of the death of one of the co'o&ners. In co66ono&nership# the right of the deceased is inherited b* his successorsG but in the case of 8ointo&nership# &hen one of the 8oint o&ners dies# his right also dies &ith hi6# and thesurviving 8oint o&ner beco6es the sole o&ner.

Trust and 9eneficial (wnership

The trust propert* is o&ned b* t&o persons at the sa6e ti6e. Cne of the6 is under anobligation to use his o&nership for the benefit of the other. -e is called the trustee# andhis o&nership is trust o&nership. The person for &hose benefit the propert* is used iscalled the beneficiar*# and his o&nership is beneficial o&nership. The trustee has no rightto the beneficial en8o*6ent of the trust propert*. Therefore# it is said that his o&nership isa 6atter of for6 than of substance# and no6inal rather than real.

A trust is different fro6 a contractual obligation to deal &ith one>s propert* on behalf of so6eone else. A trust is 6ore than an obligation to use one>s propert* for the benefit of another. The beneficiar* has 6ore than a 6ere personal right against the trustee to the perfor6ance of the obligations of the trust. -e is hi6self an o&ner of the propert*.hatever the trustee o&ns is o&ned b* the beneficiar* also. I

,,,



=wnership

p. It is / e3tent a&# coartition

nership# portant e of the lherited he 8oint G o&ner

o& t"em -"er. 2e rson &or mers"ip ioyment 0atter o&

-" ones ition to is more o& t"e #"ate:er The trustee'beneficiar* relationship is also different fro6 a principal' agent

relationship. In agenc*# the propert* is vested solel* in the principal on &hose behalf theagent acts. It is# therefore# not an instance of coo&nership. -o&ever# in the 6atter of atrust# both the trustee and the beneficiaries are the o&ners of the trust propert*.

+enerall*# a trust is created to protect the rights and interests of persons &ho# for an*reason# are unable to effectivel* protect the6 for the6selves. The 6ain classes of personsfor &hose benefit trusts are created are/

(i persons &ho are not born to &ho6 propert* 6a* belongG (ii persons &ho are under so6e incapacit* in respect of the ad6inistration of the

propert* such as infanc*# lunac*# or absenceG (iii large nu6bers of persons &ho are co'o&ners of the propert*G and (iv persons &ho have conflicting interests over the sa6e propert*.

A trust is created b* an* act or event# &hich separates the trust o&nership of an* propert*fro6 the beneficial o&nership of it# and vests the6 in different persons. A trust isdestro*ed b* an* act or event# &hich reunites in the sa6e hands the t&o for6s of o&nership# &hich have been separated on the creation of the trust.



Le)al and EOuitable (wnership

This distinction is based on the origin of o&nership. Legal o&nership has its origin in therules of )o66on La&# &hile euitable o&nership proceeds fro6 the rules of euit*. Cne

person 6a* be the legal o&ner# and another the euitable o&ner of the sa6e thing or right at the sa6e ti6e. or instance# &hen a debt is orall* assigned b* $ to , $ re6ainsthe legal o&ner of it# but beco6es the euitable o&ner. There is onl* one debt as before# though it has t&o o&ners no&. It is i6portant to understand the distinction bet&een euitable o&nership of a legal right# and o&nership of an euitable right. Thus#the o&nership of an euitable 6ortgage is different fro6 the euitable o&nership of alegal 6ortgage. In the first case# the 6ortgage has its origin in the rules of euit*#&hereas in the latter# the 6ortgage is legal# but its o&nership alone is euitable.

@ested and Contin)ent (wnership

This distinction is based on the distinction bet&een vested and contingent interest. It is#therefore# necessar* to understand &hat is a vested interest# and &hat is a contingentinterest. A vested interest is an i66ediate right# &hich 6a* be either a right of presenten8o*6ent# or a right of future en8o*6ent. In other &ords# there is an i66ediate right of present en8o*6ent# or a present right of future en8o*6ent. A contingent interest#

,,;




on t"e ot"er "and= is t"e ri$"t o& en<oyment= !"ic" depends upon some e:ent or

condition= !"ic" may or may not "appen.

!ners"ip is said to ;e :ested !"en t"e o!ners tit0e is a0ready per&ect. (t is

contin$ent= !"en "is tit0e is imper&ect= ;ut is capa;0e o& ;ecomin$ per&ect on t"e&u0&i00ment o& some conditions.

'ested o!ners"ip is a;so0ute= !"i0e contin$ent o!ners"ip is mere0y conditiona0.

+onsider t"e &o00o!in$ examp0e. , testator 0ea:es "is property to "is !i&e &or "er 0i&e

and on "er deat" to !# i& "e is t"en a0i:e= ;ut i& ! is t"en dead= to 9* No! t"e !ido!s

o!ners"ip is :ested= ;ut t"at o& ! and 9 is contin$ent. )"e o!ners"ip o& ! is

conditiona0 on "is sur:i:in$ t"e testators !ido!= !"i0e t"at o& 9 is conditiona0 on

t"e deat" o& ! durin$ t"e !ido!s 0i&etime.

+ontin$ent o!ners"ip o& a t"in$ is somet"in$ more t"an a simp0e c"ance or

possi;i0ity o& ;ecomin$ t"e o!ner. (t is ;ased upon t"e present existence o& an

incomp0ete tit0e. )"e conditions on !"ic" contin$ent o!ners"ip depend are termed

conditions precedent. (t is a condition ;y t"e &u0&i00ment o& !"ic" an incomp0ete tit0eis comp0eted. , condition su;seFuent= on t"e ot"er "and= is a condition on t"e

&u0&i00ment o& !"ic" a tit0e a0ready comp0eted is extin$uis"ed. ,n o!ners"ip su;<ect

to a condition su;seFuent is :ested o!ners"ip. (t is o!ners"ip a0ready :ested= ;ut

0ia;0e to premature determination ;y t"e comp0etion o& a di:estiti:e &act.

*rom t"e a;o:e discussion= it is o;:ious t"at t!o persons may ;e contin$ent

o!ners o& t"e same ri$"t at t"e same time. (t is a0so possi;0e t"at t"e :ested

o!ners"ip o& one person may co>exist !it" t"e contin$ent o!ners"ip o& anot"er. *or

instance= a testator may 0ea:e property to "is !i&e= !it" a pro:ision t"at i& s"e

marries a$ain= s"e s"a00 &or&eit it in &a:our o& "is c"i0dren. 2ere= "is !ido! "as

:ested o!ners"ip= and "is c"i0dren "a:e contin$ent o!ners"ip at t"e same time. 2er

marria$e is a condition su;seFuent in respect o& "er :ested o!ners"ip= and a

condition precedent in respect o& t"e contin$ent o!ners"ip o& t"e c"i0dren.

!ners"ip as a Socia0 +oncept

!ners"ip is a socia00y si$ni&icant concept ;ecause it is an index o& !ea0t"= and

socia0 position. !ners"ip o& 0and !as a means o& contro00in$ $o:ernment. (n a

&euda0 system ;ased on 0and o!ners"ip= t"e &euda0 0ords !ie0ded tremendous

in&0uence= and e:en t"e Fua0i&ication to :ote !as ;ased on o!ners"ip o& 0and. )"e

socia0 aspect o& o!ners"ip a0so "i$"0i$"ts t"e important princip0e t"at an o!ner

s"a00 en<oy "is interest in a manner compati;0e !it" t"e interest o& ot"ers. ,s Lord

E:ers"ed said- %roperty

77



(wnership

like other interests has a social obligation to perfor6>. The e3tent of this social obligationreflects the social polic* of the legal s*ste6.

It is i6portant to re6e6ber that o&nership is not 6erel* a bundle of rights# liberties#

and po&ers. It also carries &ith it corresponding burdens in the nature of duties#liabilities# and disabilities &hich prescribe and regulate ho& an o&ner should utilise his propert* for the benefit of other individuals or societ*. Propert* o&ned b* a person isliable to e3ecution for the debts incurred b* hi6. The liabilit* to pa* propert* ta3# &ealthta3 etc# is also i6posed in the social interest. Rent control legislation i6poses restrictionon the &a* in &hich one 6a* use his propert*.

The t*pical individualist approach to o&nership is reflected in the definition of Austin#&hich &e have anal*sed earlier. -o&ever# graduall* the e6phasis began to shift fro6 theindividual to societ*—fro6 o&nership as a funda6ental right of propert* to the &ants of people and one>s dut* to&ards others. It ca6e to be recognised that li6itations areintegral to the concept of propert*# and not e3ceptions to an other&ise unli6ited right.

The ar3ist theor* of o&nership dra&s attention to the evil role it has pla*ed. It begins&ith the individual &orking &ith his o&n tools and ra& 6aterials. Later# the profitaccu6ulated through trading 6anufactured products elevates hi6 to a position to providethe tools and ra& 6aterials# and get other people to provide the labour. The 6anufactured products# ho&ever# re6ain in his o&nership# not in that of the labourer# and he continuesto trade it as his o&n propert*. It is the concept of o&nership that enables the e3ploitationof &orkers. C&nership of the 6eans of production—tools and ra& 6aterials—beca6e asource of po&er over persons for private profit. This pro6oted ineualit*# because b*using the po&er of dis6issal and threat of une6plo*6ent and conseuent starvation# thee6plo*er &as able to dictate unfair ter6s of service. The o&ners of the 6eans of production beca6e industrial co66anders &ielding enor6ous po&ers that strike at thefoundations of societ*.

7arl Renner# follo&ing the ar3ist anal*sis# e3pressed the vie& that la& should takeaccount of the increasingl* public character of o&nership of propert* b* investing it &iththe characteristics of public la&. T&o concepts of o&nership# a public and a private haveto be recognised. C&nership of the 6eans of production should be public# ie#nationalised# and onl* o&nership of consu6er goods should be open to privateindividuals. The distinction lies not in the nature of o&nership# but in the things capableof being o&ned.

,,@



Lecture /8

%ossession

It is no e3aggeration to sa* that possession is the 6ost basic relationship bet&een 6enand things. A person needs food to eat# clothes to &ear# and tools to use in order to earnhis livelihood. irst# he 6ust possess the food# clothes or tools# before he can use the6.9ince hu6an life &ould be i6possible &ithout possession and usel of 6aterial things#even pri6itive co66unities follo&ed certain rules for the protection of possession. It isnot 6erel* the acuisition of possession# but so6e 6easure of uninterrupted en8o*6entthat is reuired. If a person is to derive an* benefit or value fro6 6aterial ob8ects# it isnecessar* that possession 6ust be respected b* and protected fro6 others. Ever* legal

s*ste6 6ust have rules for protecting possession because in an* societ*# there are people&ho are 6otivated b* their o&n selfish and i66ediate interests# rather than the &ide andlong ter6 interests of societ* in general.

The &ord >possession> appears to be a si6ple &ord# and is freuentl* used in co66on parlance# but possession as a legal concept is not so si6ple# and an accurate definition or description of possession is not eas*. The ter6 >possession> is used in civil and cri6inalla&. 9o6e e3a6ples are trespass &hich is a &rong to possessors of land or goods#conversion &hich is a &rong affecting possessor* rights in goods onl*# theft &hich isdishonestl* taking an* 6ovable propert* out of the possession of an* person &ithout that person>s consent.

Possession is considered as the pri6a facie evidence of o&nership. An*one &hointerferes &ith the possession of another 6ust sho& either title# or better possessor* right.Acting on this principle# la& 6a* have to protect even &rongful possession upto a certain point. or instance# if a thief steals so6eone>s &atch# he has possession# &hich the la&&ill protest against ever*one e3cept the o&ner# or so6e person la&full* acting on theo&ner>s behalf. The la& of torts gives right of action in respect of the i66ediate and present violation of possession. In the case of propert*# there 6a* be




situations !"en proo& o& tit0e is di&&icu0t= and trans&ers o& property reFuite intricate

&orma0ities. (n suc" situations= it !ou0d ;e un<ust to distur; possession or to impose

an o;0i$ation to pro:e a &0a!0ess tit0e. )"e most practica0 approac" !ou0d ;e to

protect possession unti0 some;ody pro:es a superior tit0e. )"us= it may ;e said t"atpossession con&ers on t"e possessor a00 t"e ri$"ts o& t"e o!ner except a$ainst t"e

true o!ner and ear0ier possessor= %ossession a0so entit0es a person to seek certain

remedies ca00ed possessory remedies. %ossession is a0so reco$nised as one o& t"e

met"ods o& acFuirin$ o!ners"ip.

IDe&initions

Sa0mond de&ines t"e possession o& a materia0 o;<ect as t"econtinuin$ exercise

o*dain'to t"e exc0usi:e use o& it. )"is de&inition consists o& t!o e0ements= !"ic"

ares0e0ina)to)ieconcept o& possession. ne is p"ysica0 contro0 o:er t"e t"in$ or

t"e p"ysica0 e0ement= !"ic" is ca00ed t"e corpus possessionis* )"e second is t"edetermination to exercise p"ysica0 contro0= t"e menta0Q e0ement= !"ic" is ca00ed t"e

ani'us possidendi* (n norma0 situations= !"en an o!ner is in actua0 p"ysica0 contro0

o& an artic0e= t"ere is no di&&icu0ty in understandin$ t"e concept o& possession. < *or

instance= !"en ( send my !atc" &or repair t"rou$" my ser:ant= ( cease to "a:e

actua0 p"ysica0 custody o& t"e !atc". )"e ser:ant is in custody o& t"e !atc"= or !e

may say t"at "e is in possession o& t"e !atc". )"is is de &acto possession. )"is must

;e distin$uis"ed &rom possession in 0a! or de <ure possession. *or possession in 0a!=

t"ere must ;e a mani&est intent not mere0y to exc0ude t"e !or0d at 0ar$e &rom

inter&erin$ !it" t"e t"in$ in Fuestion= ;ut to do so on ones account= and in ones

o!n name. #"en ( send my !atc" &or repair t"rou$" my ser:ant= "e "as $ot de

&acto possession= !"i0e ( "a:e de <ure possession. #"en some;ody tries to &orci;0ytake t"e !atc" &rom "im= "e may resist t"e a$$ressor. 2e does it not on "is ;e"a0&=

;ut on my ;e"a0&. 2e "as t"e &ee0in$ in "is mind t"at "e resists t"e t"ie& not &or

"imse0&= ;ut &or "is master. (& ( myse0& take t"e !atc" to t"e !atc" repair s"op and a

stran$er &orci;0y tries to take it &rom me= ( resist "im !it" t"e &ee0in$ t"at t"e !atc"

is my o!n= and ( possess t"e ri$"t to exc0ude a00 ot"ers in t"e !or0d. (n ot"er !ords=

( resist t"e a$$ressor on my account= and in my o!n name. )"is is de <ure

possession.

!ni'us Possidendi

)"e menta0 e0ement or t"e intent necessary to constitute possession is kno!n asani'us possidendi* (t is t"e intent to exc0ude ot"ers &rom inter&erin$

778



Possession

&ith a 6aterial ob8ect. The follo&ing aspects of animus possidendi are i6portant/

(i $nimus possidendi is not necessaril* a clai6 of right. It 6a* be consciousl*

&rong. rongful possession of a 6aterial ob8ect b* a thief is no less real than thatof the true o&ner. (ii The possessor 6ust intend to e3clude others fro6 the use of the thing possessed. In

other &ords# a clai6 of the possessor 6ust be e3clusive# but the e3clusion need not be absolute. Cne 6a* possess his land over &hich so6e other person# or the publicat large 6a* possess a right of &a*. 9ub8ect to this right of &a*# the animus

possidendi is still a clai6 to the e3clusive use or control of the land. (iii )lai6 or intent to use the thing as o&ner need not necessaril* be there. A tenant or

borro&er 6a* have possession. The intended use or control 6a* be li6ited ine3tent or duration. -o&ever# if it is e3clusive for the ti6e being# it is sufficient toconstitute possession. $nimus possidendi need not be a clai6 to use the thing at all#

as in the case of a pledge or a bailee &ith a lien. (iv $nimus possidendi need not be a clai6 on one>s o&n behalf. A servant# agent or atrustee &ho clai6s the e3clusive use or control of the thing on be7all8f another 6a* have true possession.

(v # $nimus possidendi need not be specific# but 6a* be general. A general intent&ith respect to a class of things coupled &ith the necessar* ph*sical relation issufficient to confer possession of the individual ob8ects belonging to that class#even though its individual e3istence is unkno&n to the possessor. or instance# I possess all 8the books in 6* librar* even though the e3istence of a particular 8book is unkno&n to 6e. 9i6ilarl*# a fisher6an possesses all the fish in his net# though hedoes not kno& the nu6ber or the t*pes of fish.

hen a person has possession of a bo3# a cabinet or envelope# such possession giveshi6 possession of its contents as &ell. -o&ever# this general rule is not applied in so6ecases. The follo&ing English decisions are illustrative.In ?erry v <reen, a 6an purchased a bureau at an auction and subseuentl*#appropriated the 6one* belonging to the vendor# &hich he discovered hidden in itssecret dra&er. -e &as held to have co66itted larcen* or theft &hen he fraudulentl*appropriated it. -ere the vie& taken the court &as that as the purchaser &as ignorant of the e3istence of the secret dra&er# he could not intend to possess the contents of thesecret dra&er until he found the6. This is also the ratio decidendi of an earlier

( (!:"! 2 B5,;.

779




case %artwri#ht v <reenE &here a carpenter# to &ho6 a bureau had been sent for repair#6isappropriated the 6one* &hich he discovered in its secret dra&er. It &as held that heco66itted larcen* at the ti6e &hen he found it and took it for his o&n use.

In : v $shwell 8$ Ash&ell reuested K to lend hi6 a shilling# and in the dark K handed over to hi6 a coin# &hich he intended to be a shilling# but &hich &as reall* asovereign. Ash&ell appropriated it to hi6self. The lo&er court convicted hi6 for theft. Inthe appellate court# seven of the fourteen 8udges &ere in favour of setting aside theconviction# but the other seven &ere in favour of upholding it. The practice in England&as to uphold the decision of the lo&er court &hen 8udges in the appellate court &ereeuall* divided. Thus# Ash&ell &as convicted. -o&ever# the division of appellate 8udgeseuall* on this uestion reveals the co6ple3 nature of the issue.

In : v Hudson a person na6ed -udson had supplied pigs to the inistr* of ood. Acheue for the price of the pigs supplied# sent b* the inistr*# &as received b* another -udson# &ho had encashed the cheue and utilised the 6one*. -e &as convicted for

theft.9avign* e3plains animus possidendi &ith reference to animus domini. A person invalid possession of a thing >6ust conte6plate dealing &ith it practicall*# 8ust as an o&ner is accusto6ed to do b* virtue of his right and conseuentl*# not as one recognisingan*bod* better entitled than hi6self. Nothing 6ore# ho&ever# than this animus domini isco6prised in the notion of possession# undoubtedl* not a 6oral conviction of beingo&ner.> 9avign*>s vie& that the intention reuisite for 8uridical possession is the intentionof dealing &ith it as the o&ner# is based on the principles of Ro6an La&# &hich did notrecognise possession b* an agent or a bailee. -o&ever# Ro6an La& recognises a tenantunder perpetual lease as having possession# although he did not clai6 as o&ner. 9avign*e3plained this b* the doctrine of derivative possession b* assu6ing that though theo&ner retains the animus domini, he &as per6itted b* the la& to transfer his civil possession to the tenant.

Ihering considers the nature of animus possidendi i66aterial# as it cannot serve as atest of civil possession. According to hi6# civil possession depends entirel* on thecharacter in &hich possession is held. Cnce the ph*sical ele6ent of possession isestablished# civil possession follo&s# unless there is a causa possessionis, ie# character in&hich the possession is 6ade# that can e3clude it. )ivil possession# therefore# does notdepend on the nature of the intention# but on the character in &hich the clai6 to possession is

7P/854Q 8 'es Jun 56.

4 P/881Q LRD /75.

A/94B / K 18.

,;%



Possession

au had been I in its secret en he found

ling# and in Se a shilling# li6self. The Geven of the on# but the Gland &as to tellate courtthe division 3 nature of

pigs to the sent b* the the cheue

domini. A ing &ith it s right and 6 hi6self# the notion .> 9avign*>s itention of .a&# &hicho6an La& though he derivative iomini, he lant.

G it cannot ii depends / ph*sical ss there is # that can nature of session is6ade. Ihering finds in positive legal rules the test of legal possession. -o&ever# his6ethod does not advance a general theor* of possession# &hich has to e3plain &h* a person in a particular character is allo&ed the right of possession# but not in another. To

the uestion as to &h* a thief can clai6 possession# &hile a servant cannot# Ihering>stheor* fails to provide a satisfactor* ans&er.

The 6ental ele6ent in possession need not go to the height of an intent to appropriateas o&ner or animus domini. It is an intention to e3clude foreign interference. Accordingto 9al6ond# the e3ercise of control and the e3clusion of alien control need not beabsolute# and 6a* be sub8ect to the special rights of others. This test of legal possession&hich has the support of e6inent 8urists including -ol6es# Pollock# and 9al6ond cannotadeuatel* e3plain &h* in English la&# the servant is not regarded as having possessionalthough he has as 6uch the intent to e3clude the &orld at large as a bailee. This ano6al*is e3plained b* -ol6es as arising fro6 the incidence of the servant>s status# &hich has6an* things in co66on &ith the status of a slave. A slave>s possession &as his 6aster>s

possession# because the slave has no standing before the la&. As -ol6es sa*s# >the notionthat his personalit* &as 6erged in that of his 6aster had survived the era of e6ancipation>.

Corpus Possessionis

$nimus possidendi alone is not sufficient to constitute possession. There 6ust beeffective realisation in fact of the animus. hether the animus has been effectivel*realised infact depends upon t&o things# na6el*/ (i the relation of the possessor to other personsG and (ii the relation of the possessor to the thing possessed.

Re0ation o& t"e %ossessor to ot"er %ersons

A person in possession of a thing 6ust have so6e securit* for non'interference b* other persons. The securit* 6a* var* fro6 a 6ere chance to 6oral certaint*. The 6easure of securit* is that &hich nor6all* and reasonabl* satisfies the animus domini. The 6ainsources of such securit* are/






possession 6ust# therefore# recognise the right of the &eak to possess a thing evenagainst interference b* the strong. or instance# a bedridden person in a paral*ticcondition 6a* not have the ph*sical capacit* to e3clude others fro6 taking a&a*

his &atch# &hich is kept on a table in his roo6. 9i6ilarl*# a child &ho is in possession of a book 6a* not have the ph*sical capacit* to prevent a strong 6anfro6 snatching a&a* that book. -o&ever# inspire of the lack of ph*sical capacit*#&e 6ust concede that the bedridden person or the child in these cases &ere having possession. Corpus# therefore# depends 6ore upon the general e3pectation thatothers &ill not interfere &ith an individual>s control over a thing than upon theactual ph*sical capacit* of an individual to e3clude others.

(b Personal presence of the possessor: Ph*sical capacit* and personal presencegenerall* coincideG but it need not necessaril* be true in all cases.

(c Secrec%: A person 6a* ensure non'interference b* keeping a&a* the things possessed fro6 the vie& or kno&ledge of others.

(d Custo': There is a tendenc* to acuiesce in established usage# &hich constitutesan i6portant source of de facto securit* and possession. (e ,espect for ri)htful clai's: Rightfulness of the clai6# or 6ore i6portantl* a

public conviction of its rightfulness# is an i6portant ele6ent for de facto securit*.-ere# the t&o for6s of securit*# de facto and de 8ure# coincide. =

(f $anifestation of the ani'us do'ini: The visibilit* of the clai6 is another ele6ent in the de facto securit*. A 6anifested intent# or open use of a thing is 6orelikel* to obtain the securit* of general acuiescence than one &hich has never assu6ed a visible for6.

(g Protection afforded b% the possession of other thin)s: The possession of a thingtends to confer possession of an* other thing that is connected &ith it# or accessor*to it. The possession of land confers possession of chattels situated upon it.9i6ilarl*# the possession of a house 6a* confer possession of chattels inside it.

The proposition that the possession of land necessaril* confers possession of all chattelsthat are on# or under it is not true in all circu6stances. After anal*sing English la& on thesub8ect# Pollock and right arrive at the follo&ing conclusions/

(i The possession of land carries &ith it# in general# possession of ever*thing that isattached to or under that land. This is illustrated b* the follo&ing cases/

,;,



Possession

/

to possess istance# a ie ph*sical # &hich is ssession of /rong 6an tie lack of person or therefore# s &ill notupon the rs.the! personal be true inG a&a*

age# &hich possession. # or 6ore i6portant /curit*# de

ie clai6 is intent# or of general for6.ession of a connected possession house 6a*

possession nces. After rive at the

ssession of illustrated

(a In South Staffordshire +aterwor"s Co v Shar'an0 the defendant &ho&as e6plo*ed b* the co6pan* to clean a pond on their land found certain goldrings at the botto6. It &as held that the co6pan* and not the de@endant hadthe first possession of it.

(b In Elwes v 9ri))% 5as Co> the defendant lessee co6pan* discovered a pre'historic boat# si3 feet belo& the surface of the land# &hile e3cavating it for the purpose of erecting gas &orks. It &as held that the lessor and not the lesseehad first possession of the boat.

(ii Another uestion that arises is &hether a person 6a* be regarded as possessing inla& a thing that is l*ing unattached to the surface of his land or in his house#&here the thing is not possessed b* so6eone else. There are so6e Englishdecisions holding that a person &ho first finds it# and not the o&ner of the land or

building# has the possession in la&. or instance in 9rid)es v -aw"esworth#? a parcel of banknotes dropped b* another on the floor of the defendant>s shop &asfound b* the plaintiff# a custo6er. It &as held that the plaintiff had a good title to

it# and not the defendant. In -annah v Peel# ! purchased a house in !1;:. -enever occupied it# but it &as reuisitioned in !1"%. 9# a soldier stationed in thehouse# found a brooch on the top of a &indo& fra6e covered in dust. ! clai6edthe brooch and sold it. The court a&arded da6ages to 9# holding that 9 &as the prior possessor of the brooch as ! &as ignorant of its e3istence.

-o&ever# in a 6ore recent case of London Corp v !pple%ard !nor 6one* found onland &as held to be in the possession of the occupier# and not the finder. The decisions in



9rid)es v -aw"esworth case and -annah v Peel case have been criticised b* +oodharton the ground that it is difficult to support those decisions on general principles. Thee6inent 8urist considers these cases as &rongl* decided.

9al6ond tries to su66arise the legal position &ith an e3a6ple. If ! 6o6entaril*hands his &allet to 9# fro6 &ho6 it is stolen b* C# &ho then loses it on 40s propert*#

&here it is then found b* E# the uestion of legal possession &ill depend on &ho bringsaction against &ho6. Against all subseuent parties# E0s title &ould prevail# for findingconfers a good title.

1A/896B 7.

6 P/886Q 44 +" D 167.

3 A/81/B 7/ LJ 31.

8A/91B K 159.

9 P/964Q / #LR987.

(

,;;




In an action bet&een 4 and E# 4 has the better right# if he could sho& that the article&as found on propert* fro6 &hich he had a general intention to e3clude others. Asagainst C# neither 4 nor E can clai6 possession % la&. In an action b* C against 4 and

E# the latter &ould not be able to plead &us tertii# ie# to argue that the ob8ect belongs toso6e one other than C and that# therefore# C should not succeed against 4 or E* Asagainst ! or 9# ho&ever# C &ould have no defence. 9 could recover the &allet# becausehe had actual possession of it. ! could recover it fro6 C# because although it &as in 90shand# he had an i66ediate right to possess. As bet&een ! and 9# there is no doubt that inla& !# the true o&ner# &ould succeed. j

Re0ation o& t"e %ossessor to t"e )"in$ %ossessed

The ob8ective ele6ent of possession# &hich is called the corpus# consists in an e3clusive ph*sical control over the thing. hat is i6portant is the ph*sical po&er to e3clude

foreign interference# and not actual ph*sical contact. person 6a* be in possession of a piece of land# although he 6a* live else&here far a&a* fro6 the propert*. A person bound b* chains though in ph*sical contact &ith the chains# cannot be said to be in possession of the6. Possession begins &hen the ani'us do'ini has been effectivel*realised in fact. A fisher6an &ho desires to catch fish# and puts a net into the sea doesnot have possession of the fish till he has the fish securel* in his net. The possessiononce gained 6a* be lost b* the loss of po&er in using the thing. The net 6a* be broken#and the fish 6a* escape.

9avign*>s vie& that corpus possessionis consists in the e3istence of ph*sical po&er toe3clude foreign interference# and secure the en8o*6ent of the thing to oneself# is nottotall* accepted b* 9al6ond. According to 9al6ond# actual ph*sical po&er to e3clude

others is not necessar* either for the co66ence6ent of possession# or its continuance.The ph*sical ele6ent in possession consists of a positive# and a negative aspect.Positivel*# it consists in the e3ercise of control b* the possessor and negativel*# in thee3clusion of others. The control of the possessor 6a* be secure b* 6an* 6eans.Presence near the thing# e3clusive kno&ledge of the situation of the thing# or control of the 6eans of access to it# as &here it is locked up in a safe of &hich one has the ke*# 6a*give rise to the possibilit* of dealing &ith the thing as one likes. The e3ercise of acts of o&nership is an un6istakable indicator that a person has a control over the thing. In itsnegative aspect# the corpus possessionis indicates the relation bet&een the possessor#and other persons. It is the assurance of non'interference b* others &ith the en8o*6ent of the thing that is of the essence of possession. T&o persons cannot be in possession of thesa6e thing at the sa6e ti6e adversel* to one another. It

"



"o! tion n in 0e to t"an ! or ause ou$" ( and

Possession

is o& course possi;0e &or t!o persons suc" as co>o!ners to ;e <oint0y in

possession. (n suc" cases= t"ere is in trut" on0y one person and t"e persons < inpossession en<oy t"e ri$"ts !"ic" arise &rom it. (& t!o persons are in

possession= eac" c0aimin$ independent0y o& and ad:erse0y to t"e ot"er= neit"er

can acFuire possession in 0a! !it"out .exc0udin$ t"e ot"er. (n t"is

sense= t"e ri$"t o& possession represents a c0aim to t"e exc0usi:e use o& t"e t"in$.

)"e corpus possessionis may= t"ere&ore= ;e descri;ed as t"e present ( exc0usion o&

ot"ers &rom t"e use o& t"in$ !it" t"e reasona;0e pro;a;i0ity t t"at it !i00 continue.

ts in ysica0 ict. , .:"ere ysica0 "em. ed in i does -. )"e t"in$.

0ysica0 o& t"e mond= or t"e 0ent in onsists -0usion means= t"in$= sa&e o& it" t"e taka;0e

aspect= d ot"er oyment Qt ;e in Qt"er. (t

Kinds o& %ossession

+orporea0 and (ncorporea0 %ossession

i #e "a:e ear0ier seen t"at t"in$s are di:ided into corporea0 and incorporea0= and

o!ners"ip is a0so simi0ar0y di:ided. (t is possi;0e to di:ide possession a0so into

corporea0 and incorporea0. +orporea0 possession Hpossessio corporis is t"e

possession o& a materia0 o;<ect= e$= "ouse= 0and= car= !atc" etc.

(ncorporea0 possession Hpossessio &uris is t"e possession o& anyt"in$ ot"er t"an a

materia0 o;<ect= e$= a ri$"t o& !ay= $ood!i00= copyri$"t= patent= con<u$a0 ri$"ts

etc. No! !e !i00 ana0yse t"ese t!o types o& possession in more detai0. +orporea0

possession is t"e de &acto re0ation ;et!een a person and a materia0 o;<ect as

distinct &rom t"e de <ure re0ation o& o!ners"ip. ,ccordin$ to Sa0mond= t"e

possession o& a materia0 o;<ect is t"e continuin$ exercise o& a c0aim to t"e

exc0usi:e use o& it. %aton su;stitutes t"e !ord contro0 &or t"e !ord use= andde&ines possession as t"e continuin$ exercise o& a c0aim to t"e exc0usi:e contro0 o&

a t"in$.

Neit"er actua0 p"ysica0 contro0= nor actua0 use is necessary to :est t"e corpus in a

person. (t is a c0aim= !"ic" depends upon t"e nature o& t"e t"in$ itse0&= and t"e

pro;a;i0ity t"at ot"ers !i00 re&rain &rom inter&erin$ !it" t"e en<oyment o& it. *or

instance= you "a:e possession not on0y o& t"e c0ot"es you !ear= ;ut a0so o& t"e

c0ot"es in your "ouse= or t"ose in t"e 0aundry. Simi0ar0y= a 0ar$e estate o& &i:e



"undred acres cannot ;e under your comp0ete p"ysica0 contro0 ;ut sti00= it may

;e in your possession e:en t"ou$" you are 0i:in$ "undreds o& mi0es a!ay &rom t"e

estate.

,s stated ear0ier= incorporea0 possession is possession o& an intan$i;0e t"in$=

suc" as t"e ri$"t o& !ay or t"e ri$"t o& sun0i$"t. (nte00ectua0 property ri$"ts suc"

as= patent= and copyri$"ts a0so &a00 under incorporea0 possession. ,n importantdi&&erence ;et!een corporea0 and incorporea0 possession is t"at actua0 use o& t"e

t"in$ possessed is not essentia0 in corporea0 possession= !"ereas actua0 continuous

use and en<oyment is essentia0 in t"e case o&




incorporeal possession. The possession of the right of &a* is onl* throuk actual andrepeated use of it. This is clearl* brought out b* 7eeton in t"e follo&ing &ords/

or incorporeal possession# both corpus and ani'us are again necessar*# &hilstthe conception of ani6us reuires no 6odification# corpus 6ust be understood to6ean nothing 6ore than the actual e3ercise or po&er over the use of theintangible thing. Incorporeal possession onl* e3ists so long as this po&er or use is

en8o*ed. As soon as it ceases incorporeal possession ceases.!%

ediate and (mmediate %ossession

As in the case of o&nership# possession 6a* also be 6ediate# or i66ediate. Cne person6a* possess a thing for and on account on so6eone else. The possession thus held b*

one person through another is called 6ediate possession# &hile that &hich is acuired or retained directl* or personall* is called i66ediate possession. I66ediate possession isdirect# and 6ediate possession is indirect. hen I directl* purchase a book I geti66ediate possession# and &hen I send 6* clerk to purchase# I get 6ediate possession of the book through 6* clerk.

There are three 6ain t*pes of 6ediate possession/

(i Possession throu#h a#ents or servants- In this case# the agent or servant > has nointerest of his o&n in the thing possessed. The agent or the servant possesses thething on behalf of the principal or the 6aster.

(ii Possession of a /orrower, hirer or tenant at will- These persons have an interest

in the thing possessed# but the* recognise the superior right of the o&ner toresu6e possession at his &ill.

(iii Possession of a /ailee or a creditor for a fi7ed term- In this case# the o&ner has possession as far as third persons are concerned. The animus and corpus reuiredto constitute possession are both present. The o&ner has not ceased to clai6 thee3clusive use of the thing for hi6self# although it is sub8ect to the te6porar*right of another person. Thus# the animus is present through the instru6entalit*of the bailee or pledgee &ho is keeping the thing safe for hi6. The o&ner iseffectivel* e3cluding all other persons fro6 it# and has thereb* obtained asufficient securit* for its en8o*6ent. This satisfies the reuire6ent of corpus.

In all the above cases# 6ediate possession e3ists as against thitd persons onl*# and notagainst the i66ediate possessor. If I deposit goods &ith a &arehouse6an# I retain possession as against all other persons# because as

/5 The Ele'entar% Principles of0Jurisprudence# /99.

746





Possession

ssession

servant / or the 6aster# is have uperior

se# the d. The / both of the ight of Gh the thing ersons for its

ersons &ith a use asagainst the6# I have the benefit of the &arehouse6an>s custod*G but as bet&een the&arehouse6an and 6*self# he is in possession# not 6e. In the case of a pledge# the debtor continues to possess as against the &orld at large# but as bet&een debtor and the creditor# possession is in the latter. The debtor>s possession is 6ediate# and the creditor>si66ediate.

Duplicate or )oncurrent Possession

e have earlier seen that e3clusiveness is the essence of possession. -o& is it then possible for t&o persons to be in possession of the sa6e thing at the sa6e ti6eF T&oadverse clai6s of e3clusive use cannot be effectivel* realised at the sa6e ti6e. -o&ever#clai6s &hich are not adverse# and &hich are not# therefore# 6utuall* destructive ad6it of concurrent realisation. A 6a3i6 of civil la&# &hich recogniHes this principle is 0plureeande' re' in solidu' possidure non possunt*0 The instances of duplicate and



concurrent possession are as follo&s/

(i ediate and i66ediate possession co'e3ist in respect of the sa6e thing as &ehave seen earlier.

(ii T&o or 6ore persons 6a* possess the sa6e thing in co66on 8ust as the* 6a*

o&n it in co66on. This is ter6ed 0co'possessio0* (iii)orporeal and incorporeal possession 6a* co'e3ist in respect of the sa6e 6aterialob8ect as in the case of corporeal and incorporeal o&nership. Cne person 6a* possess the land# and another a right of &a* or a right to sunlight over it.

Adverse Possession

The possession of propert* b* a person is adverse to ever* other person having# or clai6ing to have a right to the possession of that propert* b* virtue of a different title.Possession to be adverse 6ust be an invasion of the o&nership of another. urther# itshould be actual# e3clusive# and adeuate in continuit* and publicit*. Acts of possession

6ust be e3ercised nec vi# nec cla'# nec precario# ie# &ithout violence# &ithout stealthand &ithout per6ission. hen these conditions are present# possession is regarded ascontinuous. The conception of adverse possession has great i6portance in la&G becauseadverse possession for the period reuired b* the la& e3tinguishes the title of the trueo&ner# and creates a title in the adverse possessor.

,cFuisition o& %ossession



Possession is acuired &henever the t&o ele6ents of possession# na6el*

,;2





Possession

&ith so6e third person# eg# I have a car in the i66ediate possession of $ to &ho6I have lent it. Then I sell the car to . I have effectivel* delivered the car to assoon as $ has agreed &ith to hold it for hi6# and no longer for 6e.

+ommencement and +ontinuance o& %ossession

The reasonable e3pectation of non'interference is an essential constituent of possession.The uestion is &hether it is essential at the co66ence6ent of possession# and also for its continuance. )onsider the follo&ing e3a6ples/

(i A has purchased a 8e&el# but soon he finds hi6self surrounded b* a group of robbers. $ feels helpless because the robbers can easil* overpo&er hi6 and takethe 8e&el fro6 hi6. Even at that 6o6ent# $ is in possession of the 8e&el although

there is no reasonable e3pectation of non'interference. (iiA gold coin is thro&n in the 6idst of a cro&d of persons and all of the6 tr* to getit. Cne 6e6ber of the cro&d 6o6entaril* grasps the coin. -o&ever# he &ill not be regarded as obtaining possession of it because there is no reasonablee3pectation of non'interference.

ro6 the above t&o e3a6ples# the conclusion that e6erges is that the reasonablee3pectation of non'interference is an essential condition onl* at the co66ence6ent of possession# and not for its continuance.

Then# &hat about the corpus of possessionF Is it essential onl* at the co66ence6ent of possession# or also for its continuanceF Let us take an e3a6ple. hen a person goes for a 8ourne* leaving his things in his house# he has no actual po&er over the6 until he returns.hen he is a&a*# he gets reliable reports that large'scale violence and looting have taken place in the localit* &here the house is situated. In such a situation# the reasonablee3pectation of non'interference is also lost. During the 8ourne*# the said person 6a* 6eet&ith an accident and la* unconscious for a &hile losing his sense of animus possidendi.Inspite of all these events# he &ill be dee6ed to be in possession of the things in hishouse. It is# therefore# clear that both animus and corpus are absolutel* essential onl* atthe co66ence6ent of possession# and not for its continuance.

Re0ation et!een %ossession and !ners"ip

Possession and o&nership are inter'related. According to Ihering# possession is theob8ective realisation of o&nership. 9al6ond considers possession basicall* as arelationship bet&een a person and an ob8ect &ithin the conte3t

,;1




of the societ* in &hich he lives. It is# therefore# pri6aril* a 6atter of fact. C&nership# onthe other hand# consists not of a factual relationship# but of certain legal rights# and is a6atter not of fact# but of la&. It is so6eti6es necessar* to distinguish bet&een the de

facto possessor of an ob8ect# and its de 8ure o&ner. Cne person>s rights 6a* be ulti6ate# per6anent and residual in co6parison &ith the other &hose rights are onl* of ate6porar* nature.

C&nership and possession have the sa6e sub8ect 6atter. It is often said that &hatever 6a* be o&ned 6a* be possessed# and &hatever 6a* be possessed 6a* be o&ned. hilethis observation is generall* true# there are e3ceptional situations &hen there is possession &ithout o&nership# or o&nership &ithout possession. There are clai6s &hich6a* be realised and e3ercised infact &ithout receiving an* recognition or protection fro6the la&. -ere# &e have possession &ithout o&nership. 9i6ilarl*# there are rights &hichcan be o&ned# but &hich cannot be possessed. The* are ter6ed transitor* because the*do not allo& of continuing e3ercise. A creditor# for e3a6ple# does not possess the debt

that is due to hi6. This is a transitor* right# &hich cannot survive its e3ercise. +enerall*speaking# rights in persona6 do not ad6it of possession.C&nership and possession usuall* co'e3ist and concur. Even if the* do not concur in

the sa6e person# the* do invariabl* tend to coincide. C&nership al&a*s tries to realise in possession and conversel*# possession tries to 8ustif* itself as o&nership. As 9al6ondobserves# >the la& of prescription deter6ines the process b* &hich through the efflu3 of ti6e possession &ithout title ripens into o&nership and o&nership &ithout possession&ithers a&a* and dies.>

Possession is the visible e3pression# and pri6a facie evidence of o&nership. The possessor of a thing is presu6ed to be the o&ner until another person proves a clear titlein hi6self. It is said that possession is nine points> in la&# &hich 6eans that 6ere possession is nine'tenth of an absolute o&nership. A possessor can keep a thing againstthe entire &orld e3cept the real o&ner.

+onstructi:e %ossession

It is a s*6bolic act in &hich a transfer of possession takes place b* handing over theke*s of a building or a &arehouse. This is euivalent to transferring the possession of a building or a &arehouse. The ke* is a s*6bol as &ell as an instru6ent# using &hichcontrol of the building or &arehouse is received.

,"%



Possession

/er of iship# It is of an 6ate# ts are

%ossessory Remedies

Legal re6edies for the protection of possession are called possessor* re6edies# andthose available for the protection of o&nership are called proprietar*. The English la&considers protection as a good title of right against an*one &ho cannot sho& a better title. )ontinental s*ste6s go further# and treat possession as a provisional and te6porar*title even against the true o&ner.

Provisional protection of possession has its origin in Ro6an La&. It &as received andconsiderabl* e3tended b* )anon La&. Even the true o&ner &ho deprives the i66ediate possessor of i66ovable propert* &ill be co6pelled to restore it to the i66ediate possessor# and the o&ner is not per6itted to set up his o&n superior title. The intention of

the la& is that ever* possessor shall be entitled to retain and recover his possession untildeprived of it in due course of la&. Indian la& on this point is contained in s 1 of the9pecific Relief Act !15;# and s !"@ of the )ode of )ri6inal Procedure !12;.

Provisional protection afforded to possession is 8ustified on the follo&ing grounds/

(a iolent self'help &ill have serious conseuences# and 6ust be discouraged. Eventhe true o&ner 6ust seek the help of la& to deprive a person of possession eventhough the possession 6a* be unla&ful.

(b -istoricall*# there &ere serious i6perfections in the earl* proprietar* re6edies.The* &ere cu6brous# dilator* and inefficient# 6aking the position of the plaintiff ver* disadvantageous. In a proprietar* action# no person &as allo&ed to take the place of the defendant b* depriving another of his possession. -o&ever# this groundhas lost its relevance no&.

(c Proof of o&nership is difficult# &hereas proof of possession is eas*. After theintroduction of a s*ste6 of registration of titles# this ground has also lost 6uch of his relevance.

(d ithout a division of re6edies into t&o t*pes# na6el* possessor* and proprietar*#a 6ore satisfactor* &a* of attaining 8ust results is possible b* follo&ing so6esi6ple rules regarding the burden of proof of o&nership. These are/

(i prior possession is pri6a facie proof of titleG (ii a defendant is al&a*s at libert* to rebut this presu6ption b* proving that he has

a better titleG (iii a defendant &ho has violated the possession of the plaintiff is not allo&ed

to set up the defence oi 'us tertii, ie# the title of a third person.

7/










individual# group or even an*thing# &hich the la& &ill recognise as a bearer of legalrights and duties.

7elsen pointed out that the first essential to an* clear understanding of the nature of

legal personalit* is to distinguish it clearl* fro6 personalit* in the sense &hich refers tothe rational individualit* of a hu6an being. or different reasons at different ti6es#different s*ste6s of la& have accorded legal personalit* to 6an* other things besides people. This is called >artificial personalit*> as distinct fro6 >ordinar* personalit*>. La&has so6eti6es denied personalit* to hu6an beings. In earl* Ro6an la&# slaves &ere nottreated as legal persons because the* had no rights &hich the la& &ould enforce.Qndoubtedl*# the* &ere hu6an beings like their 6asters. There are also e3a6ples of non'hu6an entities being recognised as legal persons. In the iddle Ages# ani6als &ere triedfor cri6es. Indian la& recognises that rights could be accorded to an idol# and it couldthus be regarded as a legal person. odern la& recognises corporations or co6panies aslegal persons. This is referred to as corporate personalit*.

Legal personalit* 6a* be said to refer to the particular device b* &hich la& creates# or recognises units to &hich it ascribes certain po&ers and capacities. Persons are thesubstances of &hich the rights and duties are the attributes. It is in this respect that persons possess 8uridical significance.

A distinction can be 6ade bet&een natural# and legal persons. A natural person is ahu6an being. Legal persons are real or i6aginar* beings &ho for the purpose of legalreasoning are treated in greater or lesser degree in the sa6e &a* as hu6an beings.Infants and persons of 6ental infir6it* are sub8ect to considerable incapacit*# andtherefore# not considered as having full legal personalit*. The* are said to be semi 'uris

(half persons# &hile nor6al persons are called sui 'uris (full persons in legal parlance.Legal personalit* is a fictitious attribution of personalit* b* la&# a sort of

personification of la&. Legal persons being artificial creations of la& can be of as 6an*kinds as the la& devises. )ontinental 8urisprudence recognises three kinds of legal persons# na6el*/ (i groups or series of 6en# usuall* called corporationsG (ii institutionslike hospitals# libraries etcG and (iii funds or estates like the estates of deceased persons.In Ro6an La&# heriditas 'acens, ie# the estate of a deceased person bet&een the date of his death and the date of taking charge b* his successor# &as dee6ed to have legal personalit*. English 8urisprudence recognises onl* one kind of legal personalit*# na6el*corporations. English la& prefers the process of incorporation of hu6an beings to that of personification of institutions# or ob8ects. Indian la& recognises incorporation of hu6an beings as in the case of co6panies# and personification as in the case of idols. As far aslegal incidents are concerned it is not of 6uch i6portance &hether the 8uristic

,""



Persons

!

earer

lg of lalit* eing. rded ificial ti6es t not ould There rsons. 8nises d as a legal

&hich s and re the 6ce. latural s &ho Gree in it* are having &hile

a sort i& can Dgnises usuall* id (iii eriditas tth and e legal f legal cess of ions# or thecase as legal 8uristic personalit* is attributed to an institution# or to the group of 6en attached to the

institution.

+orporations

A corporation 6a* be defined as a group or series of 6en# &hich b* a legal conception isregarded and treated as a person. It is an interesting conception of unit* in pluralit*.)orporations are of t&o kinds# na6el*# corporation aggregate# and corporation sole. Acorporation aggregate is an incorporated group of co'e3isting persons. A corporationsole# on the other hand# is an incorporated series of successive persons. In the for6er#there &ill be several 6e6bers at a ti6e# &hile in the latter there &ill be onl* one 6e6ber

at a ti6e. E3a6ples of corporation aggregate are registered co6panies# co'operativesocieties# 6unicipal councils etc. E3a6ples of corporation sole are successive holders of so6e public office# &hich are incorporated to constitute a single continuous and per6anent legal person in the office# such as the 7ing# Post aster +eneral#Ad6inistrator +eneral etc. An idol in a -indu te6ple is also conceived as a corporationsole.

There is so6e si6ilarit* in the concept of corporation sole in English La&# and therecognition of legal personalit* in institutions# and funds in the )ontinental La&. Thelegal person in a corporation sole is recognised onl* for the purpose of trans6ission of propert* fro6 one officer to the succeeding officer# &ithout necessit* of a conve*ance.The legal person in a corporation aggregate has an e3istence of its o&n and 6a* even beconvicted and punished for a cri6e# &hile the 6e6bers of a corporation are leftuntouched.

Persons in a )orporation

+enerall* a corporation involves or concerns three classes of natural persons# viH/







Persons

for the &rongful acts of its 6e6bers or agents in the course of business of the

corporation. Even for offences# &hich reuire particular 6ens rea such as fraud# 6alice#or other &rongful intent# a corporation 6a* be held liable# and punished &ith fine or forfeiture.

Unincorporated ,ssociations

Incorporation is the process b* &hich la& accords recognition of a 8uristic personalit* toa group or series of persons. It 6a* be 6ade b* an e3press statutor* declaration that a bod* be a corporation# eg# 6unicipal councils# state financial corporations# Reserve $ank of India etc. Incorporation is also possible b* the fulfill6ent of legal for6alities prescribed b* a general statute. )o6panies are incorporated b* follo&ing the for6alities prescribed under the provisions of )o6panies Act !1@5. )o'operative societies arefor6ed b* co6pl*ing &ith the for6alities prescribed under the )o'operative 9ocietiesAct !1!,. Cther societies 6a* be registered under the 9ocieties Registration Act !:5%. A bod* or series of persons 6a* also get tacit recognition as a corporation. This is the caseof the 7ing of England# a -indu 8oint fa6il*# or an idol. In none of these cases a for6alincorporation takes place.

+enerall*# an unincorporated association cannot sue as an association# but la&considers certain unincorporated associations such as trade unions as of a uasi'corporatet*pe. Their po&er to sue and recover co6pensation for torts has been recognised. The*are also liable for torts co66itted b* their servants. The* en8o* po&ers in regard to thetreat6ent of their 6e6bers.

A partnership is an association of persons# but is never considered as a corporation andgranted legal personalit*# but a partnership fir6 can sue and be sued in its o&n na6e# andits propert* is considered distinct fro6 the propert* of its 6e6bers.

Uses and %urposes o& (ncorporation

The 6ain purpose of incorporation of a corporation sole# as &e have alread* seen# is toavoid the necessit* for periodic conve*ance of propert* to persons &ho succeed to theoffice. Incorporation of corporation aggregate &as a legal response to the challenge of great risks involved in business enterprise. Incorporation provided a convenient legaldevice &hich facilitated 6obilisation of funds fro6 a large nu6ber of persons restrictingthe liabilit* of each person to a specified a6ount. The difficulties involved in the6anage6ent of business# and propert* &ere also solved satisfactoril*. The death#insolvenc*# or absence of individual 6e6bers does not affect the

,"2/





corporation. e6bers 6a* change# but the corporation re6ains the sa6e as a legal person. The advantages of per6anenc*# unifor6it*# and unit* in the personalit* areregarded as the 6ain reasons for deciding in favour of incorporations. Therefore# theincorporated co6pan*# that is also called a 8oint'stock co6pan*# has replaced earlier for6s of collective o&nership in the industrial &orld# and has produced ad6irable results.

)"eories o& Le$a0 %ersona0ity

hen la& attributes legal personalit* to a group of persons# it is al&a*s related tb so6e purpose# and legal conseuences. It also confers certain advantages to the corporation#&hich attains the legal personalit*. Apart fro6 its practical conseuences and uses# legal personalit* also raises a uestion of 6ore funda6ental i6portance# ie# &hat is thetheoretical foundation on &hich the concept of legal personalit* is builtF 9everal 8uristshave atte6pted to ans&er this uestion fro6 their o&n perspective. As a result# &e haveseveral theories &hich tr* to e3plain the 8urisprudential foundations of legal personalit*.e &ill no& e3a6ine so6e of these theories.

Purpose Theor*

This theor*# originall* propounded b* $ritH and developed b* $aker# is based on theassu6ption that >person is applicable onl* to hu6an beings# and the* alone can be thesub8ect of 8ural relations. The so'called 8uristic persons are not persons at all. 9ince 8uristic persons are treated as distinct fro6 their hu6an substratu6# if an*# and since 8uralrelations co66onl* vest in hu6an beings# the* should be regarded si6pl* as sub8ect less properties designed for certain purposes. The theor* &as designed 6ainl* to e3plain thefoundation# the stifrun)# of +er6an La& and it &ould also e3plain the vacantinheritance# heriditas &acens# of Ro6an La&. This theor* has not found favour &ithEnglish 8udges &ho have repeatedl* asserted that corporations are persons.

Duguit gave a different 6eaning to purpose. According to hi6# the endeavour of la& isthe achieve6ent of social solidarit*. In deciding &hether the activities of a group 6ust begiven legal protection# it is relevant to find out &hether the group is pursuing a purpose#that confor6s &ith social solidarit*. Cnl* those activities falling &ithin such a purposedeserve legal protection.

Theor* of Enterprise Entit*

According to this theor*# the corporate entit* is based on the realit* of the

,":





(

Persons

underl*ing enterprise. Approval of the corporate for6 b* la& establishes a pri6a faciecase that the assets# activities# and responsibilities are part of the enterprise. here thereis no for6al approval b* la&# the e3istence# e3tent of responsibilit* etc# are deter6ined b* the underl*ing enterprise. This theor* provides an e3planation for the attitude of la&to&ards unincorporated associations# and also leaves roo6 for the 6iscellaneoussituations in &hich corporate unit* is ignored. The theor* reveals a utilitarian approach.

Sym;o0ist or racket )"eory

Ihering is the 6ain e3ponent of this theor*# &hich considers the 6e6bers of acorporation and the beneficiaries onl* as persons. Legal personalit* is a s*6bol to helpthe group in achieving a certain purpose. It a6ounts to putting a bracket around the6e6bers in order to treat the6 as a unit. This theor* assu6es that the use of the &ord person> is confined to hu6an beings. It has been pointed out that this theor* does not purport to do 6ore than to sa* the facts that lie beneath propositions such as N Coo&es M @ pounds. It takes no account of the polic* of the courts in the var*ing &a*s in&hich the* use the phrase N Co*



2o"&e0ds )"eory

This theor* also begins &ith a distinction bet&een hu6an beings and 8uristic persons# andthen e3plains that 8uristic persons are the creations of arbitrar* rules of procedure. Cnl*

hu6an beings have clai6s# duties# po&ers# and liabilities. Transactions are conducted b*the6# and it is the* &ho ulti6atel* beco6e entitled and responsible. The corporate personis 6erel* a procedural for6# &hich is used to &ork out in a convenient &a* for i66ediate purposes a 6ass of 8ural relations of a large nu6ber of individuals. -ohfeldtries to reduce the corporate concept to ulti6ate realities. hen -ohfeld sa*s thatcorporate personalit* is a procedural for6# &hat is 6eant is that the unit* of a corporationis a convenient &a* of deciding cases in courts.

Ke0sens )"eory

The distinctive feature of 7elsen>s theor* is that it re8ects for purposes of la& an* contrast bet&een hu6an beings as natural persons# and 8uristic persons. The la& is concerned &ithhu6an beings onl* insofar as their conduct is the sub8ect of rules# duties# and clai6s. Theconcept of person is al&a*s a 6atter of la&G the biological character of hu6an beings isoutside

79




i

its province. 7elsen also re8ected the definition of person as an entit* &hich> hasclai6s# and duties. The totalit* of clai6s and duties is a person in la&# and there is

no entit* distinct fro6 the6. hat constitutes the corporation# < according to7elsen# is a special set of rules# &hich regulates the actions of a 6e6ber in relationto other 6e6bers of the corporation. 7elsen>s theor* is purel* anal*tical# and o6itsthe polic* factors that bring about variations in the attitude of the courts. It fails toe3plain &h* a special set of rules is invoked in the case of corporations# but not inthe case of partnerships.

*iction )"eory (

This theor* &as originall* advanced b* 9avign*. It presupposes that onl* hu6an beings are >properl*> called persons. uristic persons are onl* treated as if the* are persons# ie# hu6an beings. It is a fiction of la&. 9al6ond and -olland are also

supporters of this theor*. According to 9al6ond# the legal person in a corporationis a thing of 6ere fiction or i6agination. Rights and duties of legal persons are&hat the la& attributes to the6. In other &ords# legal persons e3ist and possessrights and duties because and so far as the la& recognises the6 in that &a*. Apartfro6 such fictitious recognition# the* have no e3istence at all.

Parker raises so6e serious ob8ections to this theor*. If corporations ate creatures of la&and have onl* a fictitious &ill attributed to it b* la&# no corporation can ever be accused

of a &rongful act. -o&ever# in actual practice corporations are held liable for torts andcri6es. The fiction theor*# therefore# cannot adeuatel* e3plain the practices

follo&ed in courts.

+oncession )"eory

This theor* considers the personalit* of a corporation as a concession b* the statela&. A co6pan* is a legal person because the state has ordained b* la& to treat it asa person in la&. A fir6 of partners is not regarded as a legal person# because it didnot secure the sovereign>s concession to that effect. Thus# according to theconcession theor*# the legal personalit* of a corporation is a 6ere concession of thela&# and it e3tends onl* so far as the la& continues to recognise it as such. A logicalconseuence of this theor* &ould be that a co6pan* incorporated in Q9A could not be recognised as a legal person in India# unless it is specificall* granted such a

concession b* Indian la&. hen Indian la& recognises an A6erican co6pan* as alegal person# strictl* speaking# the co6pan* &ould be t&o I legal persons# onegoverned b* A6erican la&# and the other governed b* Indian la&.

,@%





Persons

The concession theor* propounded b* 9avign* identifies la& &ith the state. The theor*has been used for political purposes to strengthen the state# and to suppress autono6ous bodies &ithin it. No such bod* has an* clai6 to recognition as a person# but it is a 6atter

of discretion for the state. In all liberal de6ocracies# several associations and groups#&hich are not legall* incorporated# e3ist# and it is i6possible to disregard their groupe3istence 6erel* because the* are not officiall* incorporated. Thus# associations andgroups have been recognised b* the courts# independent of an* incorporation or concession b* the state. Parker# criticising the concession theor*# sa*s that it is the actuale3istence of rights and liabilities in the groups that necessitates recognition of a legal person in the group# and not vice versa.

Realist Theor*

This theor* asserts that the personalit* in a corporation is not a fictitious assu6ption or aconcession of la&# but a realit*. According to +ierke# a +er6an 8urist# a co6bination of persons does create a collective &ill and a collective po&er of action# &hich are realities.An individual is reckoned as a person because he possesses a distinct consciousness# andan independent &ill of his o&n. hen several persons unite for a definite purpose andfor6 a corporation# the* 6erge their individual &ills to for6 a collective &ill of thatcorporation. A corporation is treated as a legal person because it possesses a distinctconsciousness and an independent &ill# &hich is distinct fro6 the &ill of an* of its6e6bers. Thus# the corporation possesses a corporate consciousness and a corporate &ill#and therefore# a real corporate personalit* of its o&n.

The realist theor* e3tends the idea of a collective &ill to an* collection of individuals#incorporated or not. It can# therefore# provide a satisfactor* e3planation for treatingunincorporated associations also as possessing legal rights and duties.

The realist theor* attained popularit* in England because of the support rendered b*influential 8urists like aitiand and Pollock. Qsing this theor*# Pollock argued that$ritish Parlia6ent had a &ill of its o&n.

,n E:a0uation

The above discussion e3plaining various theories of legal personalit* 6a* cause so6econfusion in *our 6ind# because conflicting vie&s have been e3pressed b* e6inent 8urists. Each theor* 6ust be taken to represent a particular point of vie&# and to reveal adifferent di6ension of the concept of legal personalit*. -o&ever# an* theor* 6ust be ableto pro6ote the

,@!




6ain purposes of the la&. In the case of hu6an beings# one of the 6ain purposes of la&is to regulate behaviour. 9u66ing up his evaluation of various theories# ried6annobserves/

hile each of these theories contains ele6ents of truth# none can b* itself

adeuatel* interpret the pheno6enon of 8uristic personalit*. The reason is that

corporate personalit* is a technical legal device# applied for a ver* diverse

aggregation# institutions and transactions &hich have no co66on political or

social deno6inator &hereas each of the 6an* theories has been conceived for a

particular t*pe of 8uristic personalit*. None of the6 sa& the e3tent to &hich the

device of incorporation &ould be used in 6odern business# or# &e 6a* add# to

cloak the activities of so6e branch of govern6ent.,

In the ne& era of globalisation and liberalisation# &ith 6ultinational corporationsspreading their activities far and &ide and &ielding enor6ous econo6ic and political po&er# la& 6ust be able to regulate their behaviour in the interests of societ*. A theor*of legal personalit*# &hich &ill ensure corporate responsibilit*# 6ust be evolved fro6 the 8uristic perspectives offered b* the various theories.

%ro;0ems o& +orporate %ersona0ity

As &e have alread* seen# a corporation is uite distinct and separate fro6 the 6e6bers&ho constitute it. Its rights and duties are entirel* different fro6 those of the 6e6bers. A

shareholder of a co6pan* can legall* enter into a contract &ith the co6pan*. Theshareholders 6ight entirel* be changed or their nu6ber 6a* be increased or reduceddrasticall*G still the co6pan* &ill not lose its identit*. The co6pan* 6ight go bankrupt# but its shareholders &ould retain their 6illions safe. The real position of the co6pan*can be understood clearl* &hen &e 6ake a co6parison of it &ith an unincorporated fir6.In an unincorporated fir6# there is not 6uch difference bet&een the rights andobligations of the fir6# and its partners. Even the personal propert* of the partners isliable for the debts of the fir6. As 9al6ond has pointed out# a co6pan* can survive all its6e6bers. This special position of the co6pan* is due to the fact that the co6pan* is a 8uristic person and# therefore# it is distinct and separate fro6 its shareholders.

The essential character of the corporation is that it has a distinct personalit* of its o&n

fro6 that of its 6e6bers. The leading case on this point is alomon v alomon B )o.;9alo6on for6ed a co6pan* consisting

7 Le)al Theor%# /963= p 1/4.

4 A/893B ,+ 77.

717





Persons

of hi6self# his &ife# and five children# to &hich he sold his business at an e3orbitant price. In pa*6ent of the purchase 6one*# the said co6pan* issued debentures to thevendor. 9ubseuentl*# the co6pan* &ent into liuidation. The trial 8udge and the )ourt

of Appeal held that the creditors had the prior clai6 to the assets since the co6pan* &asa 6ere sha6. 9alo6on &as the co6pan*. -o&ever# the -ouse of Lords unani6ousl*reversed this# holding that the co6pan* &as in la& a person distinct fro6 9alo6on andthat# therefore# 9alo6on &as preferentiall* entitled to the assets as the secured creditor.

An i6portant A6erican case in &hich this principle &as laid do&n is Peoples Pleasure

Par" %o v :ohleder.+ In this case# the uestion &as as to &hether a restrictive covenantthat title to land should never pass to a coloured person operated to prevent transfer to acorporation of &hich all the 6e6bers &ere Afro'A6ericans. It &as held that the transfer to the corporation &as valid# because a corporation is distinct fro6 its 6e6bers.

Li&tin$ t"e 'ei0 o& +orporate %ersona0ity

The la& is considerabl* co6plicated b* the fact that courts do not al&a*s adhere to thedoctrine of separate e3istence. As ried6ann has pointed out# >+reater fa6iliarit* &iththe proble6s i6plicit in the incorporation of groups has co6pelled the courts to retractfro6 the si6plicit* of the doctrine and in so6e cases to \pierce the veil\ of legal personalit* in order to la* bare the realities behind it>. This has 6ade the la& of corporate personalit* considerabl* co6plicated. There are several cases in Q7# Q9A# India# andother countries &here the courts have lifted the veil of legal personalit*# and e3a6inedthe realit* behind it. The veil can be lifted &hen it beco6es necessar* to kno& thecharacter of corporate person or to avoid so6e legal obligationG or &hen the device of

corporate personalit* is used to evade ta3esG or &hen it is used to evade a statute# or todela* repa*6ents to creditors and si6ilar situations.In Daimler %o v %ontinental 1yre and :u//er %o22 the -ouse of Lords first applied the

doctrine of lifting the veil of corporate personalit*. In this case# the )ontinental T*re)o6pan* &as a +er6an co6pan* as the bulk of its shareholders &ere +er6ans. After the outbreak of &ar bet&een. England and +er6an*# an action &as co66enced in thena6e of this co6pan* against the Dai6ler )o6pan* for recover* of a trade debt. Thisaction &as resisted on the ground that the plaintiff &as an alien ene6*# at &ar &ith

A/959B 6/ SER39.

1A/9/6B 7 ,+ 453.

,@;




England# and hence# the suit &as not 6aintainable. The contention of the plaintiff &asthat the nationalit* of the co6pan* &as distinct fro6 that of the shareholders# and that it&as a co6pan* registered in England and# therefore# it did not lose the status of a

co6pan* registered in England although &ar had broken out. This contention foundfavour &ith the )ourt of Appeal# but &as not accepted b* the -ouse of Lords. The-ouse of Lords held that the ene6* character of individual shareholders# and their conduct could be 6aterial on the uestion &hether the co6pan*>s agents and persons inde facto control of the co6pan* &ere adhering to the ene6*. If the persons in control of the co6pan*# &herever resident# are adhering to the ene6*# then the co6pan* &ouldassu6e an ene6* character.

In this case# -ouse of Lords preferred to pierce the veil of corporate personalit* for the purpose of ascertaining &ho are the corporators behind the co6pan*. This decision#unlike alomon decision# supports the theor* of realists that the group &ill is a realit*#and is not to be ignored in considering the actions of corporations.

(mportance o& (ncorporation

The difference bet&een incorporated and unincorporated associations in regard to legal

conseuences &as brought out &ith telling effect in (urel v Hou#hton ?ain House

Delivery ervice Ltd.I

Qnder the Road and Rail Traffic Act !1;;# the holder of a private carrier license (called>C licence &as forbidden fro6 using the vehicle for carriage of goods for hire or re&ard.Cne group of 6iners created an incorporated co6pan* to secure cheap deliver* of coal atthe house of its 6e6bers fro6 the collier* at &hich the* &orked# and for that purpose a6otor# goods vehicle# &as purchased b* the co6pan*# the charges for the deliver* being

deducted fro6 the &ages of the 6e6bers. Another group of &orkers of the sa6e collier*also for6ed an association &ithout incorporating it# and used a 6otor vehicle for thesa6e purpose. A case &as registered against both groups. In one case it &as held that asthe societ* &as incorporated# it &as a legal entit* distinct fro6 its 6e6bers andconseuentl* in the circu6stances there &as a breach of the conditions under &hich the>) licence &as held# as the vehicle &as used for the carriage of goods for >hire or re&ard>.In the second case# it &as held that each 6e6ber &as a part' o&ner of the vehicle and co'o&ners could not be said to be carr*ing their o&n goods for hire or re&ard b*contributing to the running e3penses# and thus there &as no uestion of a breach of condition of the >) license. This brings put a clear'cut distinction bet&een co6pan* and it6e6bers.

6 A/943B / k; 485.

,@"



Persons

This distinction bet&een an incorporated and an unincorporated association has been blurred b* the decision of the -ouse of Lords in Tall !ale :ailway %o v $mal#amated

ociety of :ailway ervants.; Crdinaril*# onl* an incorporated bod* can sue or be sued#

&hile unincorporated bodies cannot sue# or be sued in their o&n na6e. This rule &asver* useful to trade unions.The* &ere usuall* unincorporated associations# and so their assets &ere not liable for

the activities of the representatives of the unions. Though such representatives &ould of course be personall* liable for such activities. This i66unit* &as a source of strength tothe trade unions. In Tall !ale case# the -ouse of Lords held that a trade union in theabsence of incorporation and registration# under the Trade Qnion Act# could be sued U inaction of tort for the &rongful acts of its officials. This decision &as a greatdisappoint6ent to the &orking class# resulting in 6assive protests fro6 the trade unions.The Parlia6ent had to intervene and pass the Trade Disputes Act !1%5# restoring thei66unit* of trade unions fro6 liabilit* for the torts of their servants. This Act &as

6odified in the *ear !1,2 curtailing that i66unit* in the event of certain strikes andlockouts.

ro6 the foregoing revie& of so6e of the cases it &ould appear that an* consistenttheor* of legal personalit* has not been unifor6l* adhered to b* the courts.

State as a Le$a0 %erson

Qndoubtedl*# the state is endo&ed &ith enor6ous po&ers# rights# i66unities# privileges#and even duties. The state can sue# and be sued. The state 6a* enter into negotiations&ith other states# and signs agree6ents ( and treaties. Thus# all the attributes of legal

personalit* are present. )an > &e# therefore# consider the state as a legal personF 9o6e 8urists regard the state as the greatest corporation kno&n to la&. +ierke# &ho supportsthis vie&# considers the &ill of the state as the collective &ill of the entire people G of thecountr*. This collective &ill is supre6e# there being nobod* to control / it. International

la& also recognises the state as a legal person.English legal s*ste6 &as reluctant to recognise the state as a legal person. hen it

beca6e necessar* to find a legal theor* for the state# the notion of the corporation sole&as borro&ed fro6 ecclesiastical la&# and the 7ing &as personified. All the rights andduties that.belong to the state are vested in the 7ing. English La& has found itconvenient to appl* the doctrine of the corporation sole to the state.

3 A/95/B ac 76.

711




hen &e appl* the analog* of a legal person to the state# the organisation of the stateand the distribution of po&ers and functions can be co6pared to those of the 6e6bersand directors of corporations. The funda6ental pre'supposition of a legal order

(e3pressed in a &ritten )onstitution as in India# or un&ritten as in England 6a* beco6pared to the 6e6orandu6 and articles of associations of a corporation.an* 6odern )onstitutions contain provisions treating the state as a legal person. In

federal states# the ederal or Qnion +overn6ent and each state or unit &ill have aseparate legal personalit*. or instance# )onstitution of Australia treats )o66on&ealthof Australia and its states as separate 8uristic entities even though it has not incorporatedthe6. The )onstitution of India contains several provisions recognising the Qnion+overn6ent and each state govern6ent as separate legal entities.

If the state is a legal person# a uestion of great practical significance# &hich arises for consideration# is ho& far is the state# and ho& far it should be# liable to actions brought b*citiHensF The concept of sovereignt* &as considered to be a bar to an* such action. In

England# this &as e6bodied in the 6a3i6# the 7ing can do no &rong. +raduall*# thesenotions# &hich are anachronistic in a de6ocratic state and the concept of sovereigni66unit*# have been considerabl* diluted. In England# the )ro&n Proceedings Act !1"26akes the state liable in tort# sub8ect to so6e e3ceptions. The Q9 ederal To\t )lai6s Act!1"5 also i6poses tortious liabilit* on the state. rance has developed a definite theor* of state responsibilit*. In India# art ;%% of the )onstitution provides that the state 6a* sue#and be sued. -o&ever# the precise nature and the e3tent of tortious liabilit* re6ain vague# because there is no legislation on this sub8ect. The )onstitution provides for the liabilit*#&hich e3isted before the )onstitution ca6e into force# to continue. The la& on tortiousliabilit* of the state in India is still governed b* 8udicial decisions.

Le$a0 Status o& ,nima0s

Legal s*ste6s do not generall* consider ani6als as persons# either natural# or legal.-o&ever# it &ould of course be possible for a legal s*ste6 to regard an ani6al as a person# and endo& it &ith rights and duties. At present the* are considered 6erel* asthings# as the ob8ects of legal rights and duties# but never the sub8ects of the6. Eventhough ani6als are capable of acts and possess interests# their acts are neither la&ful# nor unla&ful. There 6a* be so6e cases# as in the case of a trespassing ani6al# &here the la& per6its the ani6al to be detained until its o&ner pa*s co6pensation# but it cannot be saidthat this involves an* legal recognition of the personalit* of the ani6al.

716





Persons

Gation pared lenta as in ndu6

e as a ! each tution parate tution i6ent

cance# should t* &as bodied &hich rereign )ro&n so6e ortious of state he state tortious/ct. The ti tution state in

Ani6al lovers have accused the la& to be anthropocentric# ie# concerned onl* &ith theinterests of hu6an beings. The la& is 6ade for 6en# and allo&s no fello&ships or bondsof obligation bet&een the6 and the lo&er ani6als. No ani6al can be the o&ner of an* propert* even through the 6ediu6 of a hu6an trustee.

The la& see6s to recognise at least indirectl* the legal rights of ani6als &hen it 6akes

cruelt* to ani6als a cri6inal offence. The la& 6a* also i6pose duties to&ards ani6als.

or instance# one of the unda6ental Duties enu6erated in art @! (A of the )onstitutionof India is >to have co6passion for living creatures>. The traditional approach of la& in

situations of conflict bet&een the interests of ani6als &ith those of hu6an beings is to

give priorit* to the latter. -o&ever# the e6ergence of activist ani6al rights groups and

their ca6paign for a radical change in the anthropocentric approach of the la& see6 to

have produced so6e i6pact. or instance# under the Prevention of )ruelt* to Ani6als

Act !15%# the Ani6al $irth )ontrol (Dogs Rules ,%%! have been fra6ed &hich i6pose

severe restrictions on killing street dogs. These rules prescribe that street dogs 6ust be

captured using hu6ane 6ethods# and released in the sa6e area after sterilisation and

i66unisation. Euthanasia is per6itted onl* in the case of incurabl* ill# and 6ortall*

&ounded dogs as diagnosed b* a ualified veterinarian. The change in the 8udicial

attitude is visible in so6e recent decisions. In :air v Union cflndia s a notification prohibiting e3hibition and training of perfor6ing ani6als in circus issued under thePrevention of )ruelt* to Ani6als Act I15% &as upheld. In a si6ilar case# the 7erala -igh)ourt observed that legal rights shall not be the e3clusive preserve of the hu6ans# and6ust be e3tended be*ond people. The court added that the la&# &hich denies rights to

ani6als# is an anachronis6# &hich 6ust necessaril* change.1 The traditional vie& thatani6als are onl* the ob8ects of legal rights# but never the sub8ects of the6# thus appears to

be debatable.!%

natural# >ste6 to ities. At Gal rights / capable inla&ful. here the ensation# /rsonalit*Le$a0 Status o& t"e Deceased



Personalit* of a hu6an being co66ences on birth# and co6es to an end at death. La&also generall* accepted this la*6an>s point of vie&. Deceased 6en are no longer personsin the e*e of la&. The* have neither rights# nor liabilities. The concept of heriditas 'acensin Ro6an La& conferred personalit* in the estate of a deceased person during the interval bet&een

8P755/Q 6 SEE 8.

9 Ju'bo Circus v nion of India P7555Q 7 Ker it 671.

/5 See t"e de;ate in !ni'al ,i)hts# Peds +ass R Sunstein and art"a Nuss;aumQ=

755.

713

J





Lecture 75

)it0es

Ever* right arises fro6 a title. -ere &e are using the &ord >right> in a &ide sense toinclude privileges# po&ers# and i66unities as &ell. A title 6a* be described as the sourcefro6 &hich a right is derived. The title is the de facto antecedent of &hich the right is thede 8ure conseuent. In the &ords of -ol6e'# >ever* right is a conseuence attached b* thela& to one or 6ore facts &hich the la& defines and &herever the la& gives an*onespecial rights not shared b* the bod* of the people# it does so on the ground that certainspecial facts not true of the rest of the &orld are true of hi6.> It follo&s that a personclai6s a right because of so6e particular title or fact.

9o6e rights are directl* conferred b* la&# ie# e7 le#e, but in practice it is i6possible for the la& to confer ever* right directl*. Therefore# the la& specifies certain facts as givingrise to certain rights and duties. or instance# &hen a child is born there is no need for astatute to be passed defining the rights and duties of this child in relation to his parents# because the reciprocal rights and duties of parents and children are generall* laid do&n b* the la&. 9i6ilarl*# the duties of a user of the high&a* to&ards others are also laiddo&n b* the general la&. If negligent driving b* one person causes da6age to another#the la& of torts entitles the victi6 to receive co6pensation. The fact of negligent drivingis a title creating a right of co6pensation.

The 8uristic use of the &ord >title> is &ider than its co66on use. The &ord isgeneralised to cover an* fact (or co6bination of facts &hich creates rights and duties.$entha6 is in favour of further &idening the ter6 >title> to include not onl* facts b*.&hich a right or dut* is created# but also those facts b* &hich the right or dut* isdestro*ed. The sa6e set of facts 6a* give rise to rights in one person# and 6a* destro*rights in another. or e3a6ple# a river 6a* b* changing its course add to $s land# andsubtract fro6 2s land.

Titles 6a* be original# or derivative. A title# &hich creates a right de




novo, is an original title. A title &hich transfers an alread* e3isting right to a ne& o&ner#is called a derivative title# eg# the catching of fish is an original title of the right of o&nership. The right acuired b* the fisher6an is ne&l* created since it did not for6erl*

e3ist in an*one. The purchase o& fish is a derivative title because the right is acuired b*the purchaser *rom the vendor. It is the transfer of an e3isting rightG not the creation of ane& right. The right &hich is acuired b* the purchaser is identical &ith that &hich is lost b* the vendor. The essence of a title is not that it deter6ines the creation of a right denovo, but that it deter6ines the acuisition o& rights# ne& or old.

)a;0e !

'estiti:e *acts

(n:estiti:e *acts or )it0es

Di:estiti:e *acts

ri$ina0 )it0es Deri:ati:e )it0es ,0ienati:e *acts Extincti:e *acts

+reation o& Ri$"ts

Extinction o& Ri$"ts

)rans&er o& Ri$"ts



estitive acts

acts 6a* confer or take a&a* rights. The e3pression >vestitive facts> includes both

investitive# and divestitive facts. The facts &hich confer rights are called investitive facts#and the facts &hich cause the loss of rights are called divestitive facts. Divestitive facts6a* be e3tinctive or alienative. E3tinctive facts divest a right b* destro*ing it. Alienativefacts are those &hich divest a right b* transferring it to so6e other o&ner# eg the receiptof pa*6ent is divestitive of the right of the creditor to receive pa*6ent. -ere it ise3tinctive in nature. If the creditor sells the debt to a third person it is also divestitive of the right of the creditor# but because it transfers a right to a third person# it is alienative innature. The transfer of a right 6a* be looked at fro6 t&o different perspectives. ro6the transferee>s perspective# it is the acuisition of a right. The vestitive facts# if considered &ith reference to the transferee# are a derivative title. The sa6e transaction#&hen considered &ith reference to the transferor# is the loss of a right and is# therefore#

an alienative fact. Purchase is a derivative title# but the sa6e is also an alienative fact.

767





(

1itles

Acts in La&

The creation# transfer# and e3tinction of rights are either voluntar*# or involuntar*# ie# the*operate in pursuance of the &ill of the persons concerned or independent of it. In so6ecases# the la& allo&s a 6an to acuire or use his rights b* a 6anifestation or declarationof his &ill# and intent directed to that end. Thus# if a 6an leaves a dul* e3ecuted &ill in&hich he e3presses his desires regarding the disposal of his propert*# the la& &ill actaccordingl*. If he sells his propert*# it passes fro6 hi6 in accordance &ith his declaredintent# &hich the la& adopts as of its o&n. -o&ever# there are other cases &here the la&confers rights upon a person# or takes the6 a&a* &ithout an* regard to his consent or

&ill. If a person dies intestate# the la& &ill dispose of his propert* as it thinks fit. If a person>s goods are taken in e3ecution b* a creditor# the transfer is an involuntar* oneeffected in pursuance of the la&>s purposes.

$ased on the above distinction# vestititive facts are divided into t&o distinct classes#na6el*# act of the part*# and act of the la&. 9o6e &riters prefer the e3pression >act in thela&># &hich are also referred to as 8uristic acts. +er6ans refer to the6 as 2:echts#eshafie.An act in la& is the e3ercise of a legal po&er and# conversel*# e3ercise of an* legal po&er is an act in la&.



Acts in la& 6a* be either unilateral# or bilateral. A unilateral act is one in &hich thereis onl* one part* &hose &ill is operative# eg# testa6entar* disposition# the e3ercise of a po&er of appoint6ent# revocation of a settle6ent# avoidance nf a 8gudab8econtracttforfeiture of a lease etc.

A bilateral act involves the consenting &ills of t&o or 6ore distinct parties. The* are

also called agree6ents in a &ide sense# as distinct fro6 the narro& and specific use of theter6 >agree6ent> to denote a contract or creation of rights in persona6. In a &ide sense#agree6ents include all bilateral acts in la&# regardless of &hether the* are directed to thecreation# transfer# or e3tinction of rights. In this sense# conve*ances# 6ortgages# leases#and releases are all agree6ents.

Qnilateral acts in la& are divided into t&o# depending on &hether the* take effect &ithor &ithout the consent of the other concerned part*. In so6e cases# acts in la& take effectnot onl* &ithout the consent of the part*# but not&ithstanding his dissent. -is &ill is&holl* inoperative and po&erless in the 6atter# eg# re'entr* b* a landlord upon a tenantfor breach of covenant# avoidance of a voidable contract# e3ercise b* a 6ortgagee of his po&er of sale etc.

In other cases# the operation of the unilateral act is sub8ect to the dissent of the part*affected b* it# though it does not reuire his consent. Pending

,5;




the e3pression of his &ill# the act has 6erel* a provisional and contingent operation. or instance# a &ill involves nothing e3cept the unilateral intent and assent of the testator.The beneficiaries need not kno& an*thing about it. The* 6a* not even be in e3istence at

the ti6e of the &ill. -o&ever# if the* subseuentl* dissent and re8ect the rightstransferred to the6 b* the &ill# the testa6ent &ill fail to take effect. Cn the other hand# if the* accept the provisions 6ade on their behalf# operation of the &ill ceases to be provisional# and beco6es absolute.

here there are 6ore than t&o parties concerned in an* act in la&# it 6a* be bilateralin respect of so6e of the6# and unilateral in respect of others. A conve*ance of propert* b* $ to in trust for % 6a* be bilateral as to $ and inter seG &hile it 6a* at the sa6eti6e be unilateral as bet&een $ and on one side# and % on the other# % having nokno&ledge of the transaction. 9i6ilarl*# the e3ercise of a 6ortgagees po&er of sale is bilateral as bet&een the 6ortgagee and the purchaser# but unilateral as far as the6ortgager is concerned.

,$reements

Agree6ents occup* the 6ost i6portant place in la&. It is no e3aggeration to sa* that thegreat 6a8orit* of rights and duties possessed b* a 6e6ber of a civilised co66unit* havetheir origin in agree6ents. h* does la& allo& the 6ere consent of parties to stand for atitle of rightF h* does the la& give so 6uch i6portance to agree6entsF The 8ustification co6es fro6 an acceptance of the fact that 6en are co66onl* good 8udges of their o&n interests. There is no better evidence of the 8ustice of an arrange6ent# than thefact that all persons &hose interests are affected b* it have freel* and &ith full kno&ledgeconsented to it. Agree6ent is not onl* evidential of right# but also constitutive of it.

)onsent as the basis of 8ustice assu6es that the parties are in eual econo6ic positionsG but this is not al&a*s the case. hen the econo6icall* po&erful are able toi6pose their &ill upon the econo6icall* &eak# the resulting agree6ent 6a* be un8ust# but la& does not accept the plea that the contract &as entered into through econo6icnecessit* as a defence to an action on the contract. )onsent in 6an* cases is constitutiveof right# not 6erel* evidential of it. In the &ords of Auinas# the hu6an &ill is able b*&a* of consent to 6ake a thing 8ustG provided the thing in itself is not repugnant tonatural 8ustice.

hen &e atte6pt a co6parison bet&een agree6ent and legislation# the first obviousdifference is that the for6er is the private# and the latter is the public declaration# andestablish6ent of rights and duties. The basic

,5"



Titles

principle is modus et conventio vincunt le#em, ie# save &hen the interest of the public atlarge de6ands a rule# the autono6* of consenting parties prevails over &hat &ouldother&ise be the legislative &ill of a state. It follo&s that )o66on La& 6a* in great

6easure be e3cluded b* )onventional La&. Agree6ent is a source of la& bet&een the parties.

)lasses of Agree6ents

Agree6ents are generall* divided into three classes/ (i those &hich create rightsG (iithose &hich transfer rightsG and (iii those &hich e3tinguish rights. Agree6ents &hichcreate rights are again divided into t&o# na6el*# contracts# and grants.

A contract is an agree6ent# &hich creates an obligation or right in persona6 bet&eenthe parties to it. A grant is an agree6ent &hich creates a right of an* other description#such as the grant of a lease# ease6ent# patent# franchise# licence etc. An agree6ent

&hich transfers a right is generall* called an assign6ent. An agree6ent &hiche3tinguishes a right is called a release# discharge# or surrender# depending upon thenature of the

transaction..

No agree6ent is a contract# unless its effect is to bind the parties to each other b* thevinculum 'uris of ne&l* created personal rights. It takes the for6 of a pro6ise or set of pro6ises that is a declaration of the consenting &ills of t&o persons that one of the6shall henceforth be under an obligation to the other. It assu6es the for6 of anundertaking b* one &ith the other to fulfill the obligation so created.

It is i6portant to note that ever* pro6ise does not a6ount to a contract. or instance#&hen a person accepts an invitation to have dinner &ith a friend# the for6er 6akes a

pro6ise to the latter# but does not enter into a contract &ith hi6. In this case# the &ills of the parties are not directed to the creation of an* legal right# or to an* alteration of legalrelations &ith each other. In order to constitute a contract# there 6ust be not 6erel* a pro6ise to do certain act# but a pro6ise# e3press or i6plied# to do this act as a legal dut*.

e can identif* four distinct kinds of agree6ents/

(i contracts creating rights in persona6G (ii grants creating rights of an* other kindG (iiiassign6ents transferring rightsG and (iv releases e3tinguishing rights.

An agree6ent 6a* be of a 6i3ed nature# and fall &ithin t&o or 6ore of the aboveclasses at the sa6e ti6e. The sale of a specific chattel is a contract# because it creates anobligation to pa* the price. It is also an assign6ent

761




because it transfers the right of o&nership. A lease is both a grant# and a contract# for itcreates real and personal rights at the sa6e ti6e.

The sa6e agree6ent 6a* have one effect in la&# and another in euit*. Thus# a &ritten

agree6ent for the sale of land is in la& nothing 6ore than a contract i6posing upon theseller a personal obligation to e3ecute a conve*ance under seal# but not in itself a6ounting to a transfer of the o&nership of the land. In euit*# such an agree6enta6ounts to an assign6ent because euitable o&nership passes under it to the purchaser forth&ith# and the vendor holds a legal o&nership in trust for hi6. 9i6ilarl*# a contract togrant a legal lease# or 6ortgage# or servitude is itself the actual grant of an euitablelease# 6ortgage# or servitude. Euit* regards that as alread* done &hich ought to be done.

There are also cases in &hich although infact there is no agree6ent# the la& regards anagree6ent as e3isting. 9uch instances 6ostl* occur in contracts. The follo&ingillustration 6akes this clear/ ! 6akes an offer to 9 and then &rites a letter to 9 purporting to revoke the offer. 9 accepts !s offer before !s revocation has co6e to his

notice. -ere# the la& treats it as a valid contract even though there has never been aconsensus ad ide'# ie# an identit* of 6inds# at a single point of ti6e. A consensus ad ide'# is generall* considered to be an essential pre'reuisite of a valid contract.

E3a6ples of this nature have led to the for6ulation of an ob8ective theor* of contract#as distinct fro6 the traditional sub8ective theor*. The ob8ective theor* does not consider acontract as a sub8ective 6eeting of the 6inds# but as a series of e3ternal acts giving theob8ective a se6blance of agree6ent. The purel* sub8ective theor* goes to the other e3tre6e insisting on a sub8ective 6eeting of the 6inds. The la& takes a sub8ective vie&in so6e cases# and an ob8ective vie& in others# according to the polic* of the particular case. Qsuall*# the &ord >agree6ent> is used to cover not onl* a genuine agree6ent in asub8ective sense# but also a contract# &hich# in la&# is regarded as the euivalent of anagree6ent.

@alid# @oid# and @oidable !)ree'ents

Agree6ents are of three kinds on account of their legal efficac*. The* can be either valid#void# or voidable.

A valid agree6ent is one &hich is full* operative as per the intent of the parties. A voidagree6ent# on the other# hand# is one &hich totall* fails to receive legal recognition# or sanction. It is unenforceable# as the declared &ill of the parties is &holl* destitute of legalefficac*. A voidable agree6ent stands 6id&a* bet&een valid and void agree6ents. Avoidable agree6ent is not a nullit*# but its operation is conditional# and not absolute. It is

,55



Tttles

liable to be cancelled# or disregarded# or destro*ed at the option of one of the parties to it# but is operative other&ise.

oid and voidable agree6ents 6a* be classed together as invalid. The invalidit* of

agree6ents 6a* arise fro6 various sources. The 6ost i6portant causes of invalidit* are/

(i Incapacit% ofparties: As in the cases of 6inors and lunatics. (ii Infor'alit%: Agree6ents 6a* be distinguished as si6ple or for6al. A si6ple

agree6ent is one in &hich nothing is reuired for the effective operation be*ondthe 6anifestation of the consenting &ills of the parties. A for6al agree6ent# on theother hand# is one in &hich the la& reuires not 6erel* the consent# but also6anifestation in so6e particular for6. If those legal for6alities are not follo&ed#then such agree6ent &ill be invalid. or instance# if the consent of the parties isnot e3pressed in &riting# signed b* the6 or if it is not ackno&ledged in the presence of &itnesses# or if it is not recorded b* so6e for6 of public registration#

then such infor6al agree6ent shall not be enforceable. (iii +ant of Free Consent: If an agree6ent is the product of an* for6 of coercion#undue influence# fraud# 6isrepresentation# error or 6istake# the consent cannot betreated as free and hence# the agree6ent based on such a consent shall be invalid.

(iv +ant of Consideration: Another condition co66onl* reuired b* English la& for the e3istence of full* effective consent is that of consideration. This reuire6entis# ho&ever# al6ost &holl* confined to the la& of contract# the other for6s of agree6ent being generall* e3e6pt fro6 it. hen all the benefits of a contract goto one part* and the other part* gets nothing# such agree6ent &ill be invalid for &ant of consideration.

,52





Lecture ,!

%roperty

E,N(N@

e ter6 >propert*> has a variet* of 6eanings# and uses. In so6e conte3ts neans o&nershipor title# and in so6e other conte3ts it is used to 6ean thing over &hich o&nership ise3ercised.In its &idest sense# propert* includes all legal rights possessed b* a son. A 6an>s

propert* is all that is his in la&. This approach is found in ier &ritings. $lackstonespeaks of the propert*# &hich a 6aster has in person of his servant# and a father in the person of his child. -obbes siders all those that are dearest to a 6an including his lifeand li6bs# 8ugal affection# riches and 6eans of living as things held in propert*# ordingto Locke# ever* 6an has a propert* in his o&n person# and a i has the right to preservehis propert*# ie# his life# libert*#> and estate# a* such &ide use of the ter6 >propert*> is notfollo&ed# he narro&er sense in &hich the &ord >propert*> is generall* used toda*not include all of a person>s rights# but onl* his proprietar*# as opposed is personalrights. Proprietar* rights constitute his estate or propert*# s a 6an>s land# chattels#shares# and the debts due to hi6 are consideredSropert*# but personal rights concerned &ith his status or personal

lition such as his life# libert*# or reputation are not considered asert*.opert* is also used in a still narro&er sense to 6ean onl* proprietar* s in re6.Proprietar* rights in persona6 are distinguished fro6 it as Rations# &hich &ill bediscussed in our ne3t lecture. In this sense a old or leasehold estate in land or a patent or a cop*right is propert*# i debt or the benefit of a contract is not. Perhaps the narro&estsense in h the ter6 >propert*> is used includes onl* corporeal propert*# ie# the of o&nership in a 6aterial ob8ect# or that 6aterial ob8ect itself. $entha6




&ho &as in favour of using propert* in this narro&est possible 6eaning considered thee3tension of the ter6 to include other rights as i6proper.

Kinds o& %roperty

Propert* is co66onl* divided into corporeal and incorporeal. )orporeal propert* is theright of o&nership in a 6aterial thing. Incorporeal propert* is an* other proprietar* rightin re6. It is further divided into (i &ura in re aliena or encu6brance# &hether over 6aterial or i66aterial things# eg# leases# 6ortgages# servitudes etcG and (ii &ura in re propria# over i66aterial things# eg# patents# cop*rights# and trade6arks.

!ners"ip o& ateria0 )"in$s

e have alread* seen that corporeal propert* is the right of o&nership in a 6aterial thing.e have to distinguish o&nership fro6 li6ited rights to the use of propert*# such as theright of &a*# &hich is 6erel* an encu6brance. The o&ner of a 6aterial ob8ect is the person &ho o&ns a right to the aggregate of its uses. C&nership is the right of generaluse. hen &e speak of o&nership as the right of general use# it 6ust be clearl*understood that this general use need not be absolute or unli6ited. All la&ful use of propert* 6a* be either general# ie# residuar*# or specific in nature. +eneral use iso&nership# and specific use is encu6brance. The general la& 6a* i6pose various li6itson o&nership so that no one uses his o&n propert* in such a &a* as to in8ure hisneighbour. 9o6e restrictions i6posed b* the general la& 6a* be in the interest of the public. The second t*pe of restriction on an o&ners right of use consists of encu6brancesvested in other persons. The e3istence of encu6brances does not destro* the right of o&nership. Legall*# a right of o&nership sub8ect to a nu6ber of encu6brances is as goodas a right of o&nership &ithout an* encu6brance.

C&nership is necessaril* per6anent and inheritable. It is per6anent because it iscapable of lasting as long as the thing itself# &hich is its sub8ect 6atter# lasts. It isinheritable because it is capable of surviving its o&ner. After the death of the o&ner# propert* passes on to his legal heirs. 9al6ond defines the right of o&nership in a 6aterialthing as the general# per6anent# and inheritable right to use of that thing.

,2%



Propert%

Table !

%roperty i

Jura in re propria

Jura in re aliena

ateria0 )"in$s

(mmateria0 )"in$s Leases Security Ser:itude etc

Land

+"atte0s

%atents= )rademarks= +opyri$"t etc

+orporea0 %roperty(ncorporea0 %roperty

o:a;0e and (mmo:a;0e %roperty

)orporeal propert* is classified into 6ovable propert*# and i66ovable propert*. English



la& uses the &ord >chattels> for 6ovable propert*# and >land> for i66ovable propert*.Legal s*ste6s la* do&n different rules for these t&o classes of propert*.

I66ovable propert* that is land in its legal sense includes/

(i A deter6inate portion of the earth>s surfaceG

(ii The ground beneath the surface do&n to the centre of the earthG(iii Possibl* the colu6n of space above the surface ad infinitum. The uestion&hether o&nership of land includes the colu6n of space above the surface ad

infinitum is debatable. Even if such a right is ad6itted in theor*# la& i6posesrestrictions on the right. In England# the Air Navigation Act of !1,% provides thatthe flight of aircrafts at a reasonable height above the ground is not actionable inthe suit of the o&ner or occupier of the land. According to +er6an )ivil )ode# theo&ner of the land o&ns the space above it# but has no right to prohibit acts sore6oved fro6 the surface that the* do not affect his interests in an* &a*. The6a3i6 cu'us est solum e'us est us6ue ad coclum, ie# &hose is the soil# his is alsothat &hich is above it# 6eans onl* that if one o&ns a portion of the earth>s surface#

one also o&ns an*thing belo& or above that portion &hich is capable of beingreduced into private o&nership. In other &ords# a reasonable space above thesurface of the land necessar* and sufficient for the use and beneficial en8o*6entof the land and all things attached thereto is included in the concept of i66ovable propert*# &hich a person can o&n.

73/




(iv All ob8ects# &hich are on or under the surface in its natural state. The* for6 part of the land# eg# 6inerals# natural vegetation# or stones l*ing loose upon the surface.-ere again la& 6a* i6pose# li6itation on o&nership or use. The state 6a*# b* la&#

create a 6onopol* in favour of an* 6inerals# 6etals or precious stones# &hich lie beneath the surface of even private propert*.

The uestion &hether the o&ner of land en8o*s an absolute right to the ground&ater beneath the surface of his land &as raised in Peru'att% 5ra'a Pancha%at v State of =erala A 6ultinational co6pan* 6anufacturing bottled drinks establisheda factor* in 7erala. here the co6pan* started e3tracting a huge uantit* of &ater fro6 their propert*# the neighboring areas e3perienced an acute scarcit* of &ater.The )ra'a pancha%at# in e3ercise of po&ers under the 7erala Pancha*at Ra8 Act#directed the co6pan* to either 6ake alternate arrange6ents for &ater reuired for their industr*# or to close do&n the factor*. The co6pan* challenged the validit* of

the order in 7erala -igh )ourt. The court observed that the underground &ater belongs to the public# and the state and its instru6entalities should act as trustees of this great &ealth. The court# deviating fro6 the conventional vie&# pointed out thatthe ground &ater under the land of the respondent did not belong to it. The Division$ench of the high court# on appeal# set aside the order of the single 8udge# andupheld the right of the o&ner of the land to >e3tract &ater fro6 his propert*# unless

it is prohibited b* a statute.>, According to the court# the per6issible restrictions in public interest can onl* be to co6pel hi6 to ensure that b* his conduct he does not bring about a drought or an* i6balance in the &ater table. Even though &e find adifference in the approach of the single 8udge and the Division $ench on the scopeof the right of the lando&ner# it is i6portant to note that in both 8udg6ents the court

accepts the per6issibilit* of restrictions on the right.

(v The last ele6ent is an* ob8ect placed b* hu6an agenc* on or under the surface of the land &ith the intention of per6anent anne3ation. These ob8ects beco6e part of the land# and lose their identit* as separate 6ovables# eg# buildings# &alls# fencesetc. The intent of per6anent anne3ation is an essential ingredient# but ph*sicalattach6ent to the surface is not so essential. Ph*sical

!(,%%" ! 7LT 2;!. , -industan Coca Cola 9evera)es HP Ltd v Peru'att% 5ra'a Pancha%at (,%%@ ,7LT @@".

,2,





(

Propert%

attach6ent &ithout the intent of per6anent anne3ation# is not sufficient to includean ob8ect in the categor* of i66ovable propert*.

ovable propert* or chattel cannot be precisel* defined. It 6a* be described as an*corporeal propert*# &hich is not i66ovable propert* or land.

itus o& Ri$"t

+enerall* a right has its situs or seat at the place &here it is to be e3ercised or en8o*ed.

Thus# rights over 6aterial things# such as land or buildings have the sa6e situation as thethings the6selves. The uestion is &here is the situs of the good&ill of a businesssituatedF The ans&er is obviousl*# in the place &here the business is carried on. The situsof a debt is generall* the place &here the debtor resides because it is to that place that thecreditor 6ust go if he &ants to get his 6one* back.

English )o66on La& also 6akes a distinction bet&een real and personal propert*. Real propert* co6prises all rights over land &ith such additions or e3ceptions recognised b*)o66on La&. All other proprietar* rights are included in the la& of personal propert*#



&hich is identical to the la& of 6ovable propert*. Leasehold rights are# ho&ever#treated in English La& as personal propert*.

No& &e &ill e3a6ine the 6eaning of the &ord >chattel># &hich is freuentl* used inEnglish La&. )hattel refers to an* 6ovable ph*sical ob8ect such as a horse# a book# a&atch# a coin# a chair etc. It also refers to incorporeal proprietar* rights such as debts#

shares# contracts# patents# cop*rights# and other rights in re6# &hich are not rights over land. )hattel refers to personal propert*# &hether 6ovable or i66ovable# as opposed toreal propert*. English la& considers leaseholds as chattel# though it 6a* appear to beillogical.

Ri$"ts in :e Propria in (mmateria0 )"in$s

Earlier the e6phasis &as on proprietar* rights over 6aterial things. ith theadvance6ents in science and technolog* the i6portance of the products of hu6anintellect is being increasingl* recognised. The shift in e6phasis to proprietar* rights over

i66aterial things is a result of this recognition. hat &e no& call intellectual propert*rights are 8urisprudentiall* rights in re propria in i66aterial things. These rights include patents# and cop*rights. The sub8ect 6atter of a patent is an invention. The la&recognises the right of a person &hose skill or labour produces the idea of a ne&

,2;




process# instru6ent# or 6anufacture. )op*rights e3ist in literar* &orks# artistic &orks#including 6usical and dra6atic &orks. It has been e3tended to include co6puter progra66es also.

Another class of rights in re propria in i66aterial things consists of co66ercialgood&ill# trade6arks# and trade na6es. A person &ho establishes a business and acuiresgood&ill has e3clusive right to the good&ill. Trade na6es and trade6arks are alsosi6ilarl* protected b* la&. These rights cannot onl* be o&ned and possessed# but canalso be leased# 6ortgaged# or sold or other&ise dealt &ith.

Ri$"ts in re aliena or Encum;rances

Rights in re aliena 6a* be described as encu6brances# or rights in re6 over a thingo&ned b* another. The right 6ust run &ith the thing encu6bered. In other &ords# it 6ust

bind the thing# no 6atter into &hose hands it 6a* co6e. or instance# an ease6ent bindsthe servient tene6ent# and a purchaser &ill be bound irrespective of &hether he &asa&are of the ease6ent. Encu6brances are not confined to real propert*# but 6a* e3tendto personal propert* also.

There are 6an* t*pes of encu6brances. e &ill discuss onl* the three t*pes of encu6brances# &hich are considered the 6ost i6portant.

Lease

A lease is an encu6brance# &hich consists in a right to the possession and use of propert*o&ned b* so6e other person. There is a separation of possession fro6 o&nership. The person &ho possesses the propert*# but does not o&n it is called the lessee. The person&ho o&ns it# but &ho has transferred his possession to the lessee# is the lessor. A person&ho is not the full o&ner of the propert* 6a* also lease the propert*. -ence# a 6ortgageecan lease the 6ortgaged propert*# and the lessee can sub'lease it. An* right that can be possessed can be leased. A patent# cop*right# trade6ark# or the right to receive interest6a* be the sub8ect of a lease.

A bail6ent is si6ilar to a lease. -o&ever# the ter6 >bail6ent> is never used in relationto land. A bail6ent is the transfer of possession# and en8o*6ent of the chattel b* theo&ner for a li6ited period for li6ited purposes.

Servitude

9ervitude is a right to the li6ited use for a piece of land &ithout the possession of it# eg# aright of &a* or right to sunlight over anothet>s land# a right to support etc. The distinction bet&een a servitude and a lease# as

,2"



Property

*ou 6ust have noticed# is that there is no possession in servitude. A lease involves possession and use &ithout o&nership# &hile servitude involves use &ithout possession#and o&nership. or eg# &hen $ obtains a piece of land belonging to A for e3clusive

possession and en8o*6ent for a definite period# it is a lease. hen $ obtains a 6ere rightof &a* over 2s land to go to $s land# it is an ease6ent.9ervitude 6a* be private# or public. A private servitude is one vested in a deter6inate

individual# as in the case of a right of &a*# or sunlight# or support vested in the o&ner of one piece of land over an ad8oining piece of land. The right of fishing granted to one person in a pond belonging to another is also a private servitude. A public servitude is onevested in the public at large# or in so6e class of indeter6inate individual# eg# a right of the public to use private land as a path&a*# the right of the inhabitants of a localit* to usea piece of private land as a pla*ground etc.

English la& divides servitudes into t&o categories# viH# appurtenant# and in gross. Aservitude appurtenant is not 6erel* an encu6brance of one piece of land# but is also

accessor* to another piece. It is a right of using one piece of land for the benefit of another# eg# a right of &a*# or right to support b* an ad8acent o&ner. The land# &hich is burdened &ith the servitude# is called the servient land or tene6ent and the land# &hichhas the benefit# is called the do6inant land or tene6ent. In this case# the servitude runs&ith each of the tene6ent into the hands of successive o&ners or occupiers. 9ervitude ingross# on the other hand# is not attached or accessor* to an* do6inant tene6ent# eg# public right of &a*# or navigation# or a private right of fishing# 6ining etc.

Ease'ent

The ter6 >servitude> is peculiar to Ro6an La&. English La& and Indian La& generall*use the ter6 >ease6ent>. In the strict sense# ease6ent is onl* one class of servitude. It 6a* be positive# or negative.

A positive ease6ent enables the o&ner of the do6inant tene6ent to do so6ething uponthe servient tene6ent. A right of &a* is a positive ease6ent. A negative ease6ent confersa right to restrain the co66ission of so6e acts on the servient tene6ent. The ease6ent of sunlight is a negative ease6ent# for it enables its o&ner to restrain the servient o&ner fro6 erecting an* construction that &ould 6ateriall* obstruct the passage of sunlightco6ing to the building of the o&ner or the ease6ent.

4istinction between Ease'ent and Licence

A licence is a right# not being an ease6ent to do or continue to do upon

,2@




the i66ovable propert* of another# &ith the per6ission of its o&ner# so6ething that&ould be an unla&ful act# but for such per6ission. The follo&ing are the distinctions/

(i A licence is invariabl* a right to do or continue to do so6e positive act on thei66ovable propert* of another. It is not# unlike an ease6ent# a right to prevent ano&ner of i66ovable propert* fro6 doing so6ething on his land. Thus# &hile anease6ent is both positive and negative in character# a licence is al&a*s positive.

(ii A licence is a personal right and creates no 6ore than a personal obligation bet&een the licensor and the licencee. An ease6ent# on the other hand# is a right#in re6 available against the entire &orld.

(iiiA licence is not appurtenant to an* land# &hile an ease6ent is al&a*s attached todo6inant tene6ent for the beneficial en8o*6ent of &hich it is intended.

(iv $eing a personal right# a licence is not assignable e3cept in certaincircu6stances# but an ease6ent passes &ith the do6inant heritage.

(v hile a licence is generall* revocable at the &ill of the grantor# an ease6entcannot be revoked at the &ill of the servient o&ner.

Securit%

A securit* is an encu6brance the purpose of &hich is to ensure or facilitate thefulfill6ent or en8o*6ent of so6e other right vested in the sa6e person. It is usuall*#though not necessaril*# connected &ith a debt.

T&o kinds of securities# viH# 6ortgages and liens# are generall* distinguished. A lien isa right# &hich in its o&n nature for6s a securit* for debt# and nothing 6ore. In contrast#a 6ortgage is a right in its o&n nature. It is an independent or principal right# and not a6ere securit* for another right. -o&ever# &hat &e often find is that a 6ortgage isartificiall* li6ited to serve as securit*. A lien cannot survive the debt secured. It ceasesand deter6ines ipso &ure on the e3tinction of the debt. It is# therefore# called 6erel* theshado& cast b* the debt upon the propert* of the debtor. -o&ever# if the lienor has in pursuance of the lien taken possession of the propert*# the discharge of the debt &ill notipso facto destro* the possession# but 6erel* his right to retain it against the debtor. Theright vested in a 6ortgagee has an independent e3istence# and 6a* re6ain outstandingeven after the e3tinction of the debt. Thus# &hen left outstanding# it 6ust be re'transferred or surrendered to the 6ortgager. The right of the 6ortgager to such re'transfer or surrender is called his right of euit* of rede6ption.

A securit* 6ust satisf* t&o reuisites. irst of all# it 6ust afford sufficient protectionto the creditor. Euall* i6portant is that it 6ust interfere &ith the rights of the debtor tothe least. In this respect# lien appears to be a

,25



Property

better for6 of securit*. It leaves the full legal and euitable o&nership in the debtor# butvests in the creditor such rights and po&ers as are reuired according to the nature of thesub8ect 6atter. A lien gives sufficient protection to the creditor# and looks after the

interests of the debtor b* its lapse ipso 'ure &ith the discharge of the debt.e can identif* the follo&ing five kinds of lien/

(i Possessory liens- )onsisting in the right to take possession of the propert* of thedebtor.

(ii :i#ht of distress or seiure- )onsisting in the right to take possession of the propert* of the debtor &ith or &ithout the po&er of sale.

(iii Powers of sale- It is usuall* incidental to the right of possession conferred b* thefirst or second for6 of lien.

(iv Powers of forfeiture- )onsisting in a po&er of a creditor destro*ing so6e adverseright vested in the debtor# eg landlord>s right of reentr* on his land.

(v %har#es- )onsisting in the right of the creditor to receive pa*6ents out of so6especific fund. A charge &as considered to be al&a*s of specific propert*. odernco66ercial practice has developed a for6 of charge# &hich does not attach itself to an* specific propert*. This is called a floating charge. The charge beco6esfi3ed to an* specific propert* onl* &hen the 6one* secured beco6es pa*able#and the creditor has taken so6e steps to enforce his securit*. Qntil then the debtor is free to deal &ith his propert* in an* 6anner he likes.

odes o& ,cFuisition

A6ong the 6an* 6odes of acuiring propert* the 6ost i6portant 6odes# &hich deserveour attention# are possession# prescription# agree6ent# and inheritance. e &ill no&discuss each one of the6 in so6e detail.

%ossession

hen the propert* belongs to no one 8res nullius9, the first possessor acuires a validtitle against the &hole &orld. In Ro6an La&# this 6ode of acuisition &as kno&n asoccupatio. The propert* 6a* belong to so6eone. 9till# possession confers a right in the possessor as against the entire &orld# e3cept the true o&ner# or the> previous possessor.Even as against the true o&ner# the possessor is entitled to 6aintain his possession untilevicted in due course of la&. A thing o&ned b* one person and possessed adversel* b*another has in truth t&o o&ners. The o&nership of one is absolute and

,22




perfectG &hile that of the other is relative and i6perfect. The o&nership of the possessor is called possessor* o&nership# and &ill be protected against all e3cept the true o&ner. A plea of &us tertii (title of a third part* is not valid as against the possessor* o&ner. La&

for the purpose of preserving order and peace protects the rights of the possessor# for other&ise force and fraud &ill prevail.

Prescription

Prescription 6a* be defined as the effect of lapse of ti6e in the creation# and e3tinctionof legal rights. It is the operation of ti6e as a vestitive fact. The creation of a right b* thelapse of ti6e is called acuisitive# or positive prescription. The destruction of a right b*the lapse of ti6e is ter6ed as e3tinctive# or negative prescription. The uestion &hether prescription shall operate as acuisitive or e3tinctive depends on &hether it is

acco6panied b* possession. Positive prescription is the vestitive operation of lapse of ti6e &ith possession. Thus# the en8o*6ent of a right of &a* over another>s land for ,%*ears confers a prescriptive right of &a* on the person &ho has en8o*ed the right for the prescriptive period. This is an illustration of acuisitive# or positive prescription. Long possession creates rights# and long &ant of possession destro*s the6. Thus# a person &hois in adverse possession of land for a period of !, *ears acuires o&nership of the land#and the o&ner loses his o&nership for &ant of possession. There is a coincidence of thedivestitive as &ell as vestitive operation of lapse of ti6e upon rights. This kind of prescription is called translative# acuisitive# or positive prescription# for the right of thelate o&ner is thereb* transferred to the adverse possessor. In both for6s of prescription#fact and right# possession and o&nership# tend to coincide.

The rational basis of prescription lies in the presu6ption of the coincidence of possession and o&nership# of fact and of right. C&ners are usuall* possessors# and possessors are usuall* o&ners. As 9al6ond observes# >the tooth of ti6e 6a* eat a&a* allother fruits of title. Docu6ents are lost# 6e6or* fails# &itnesses die# but as these beco6es of no avail an efficient substitute is in the sa6e 6easure provided b* a probativeforce of long possession>.

The longer the possession or absence of possession has continued# the greater is itsevidential value. La& has established the evidence of a conclusive possession in favour of the rightfulness of long possession# and against the validit* of clai6s &hich arevitiated b* long &ant of possession. 9o6e co66entators had gone to the e3tent of statingthat prescription has been advanced fro6 the la& of evidence to a place in the substantivela&. La&

,2:



Propert%

o& &o00o!s t"e princip0e vi)ilantibus non dor'ientibus &ura subveniunt# ie= t"e

ist 0a!s $i:e "e0p to t"ose !"o are !atc"&u0= and not to t"ose !"o s0eep. (t is

o& on t"is princip0e t"at t"e 0a! o& prescription is ;ased= n$ Ne$ati:e

prescription is &urt"er di:ided into per&ect= and imper&ect=id %er&ect ne$ati:e prescription is t"e destruction o& t"e principa0 ri$"t

itse0&.

(mper&ect ne$ati:e prescription is t"e destruction o& t"e accessory ri$"t

o& action a0one= !"i0e t"e principa0 ri$"t remains. (t is common0y ca00ed

t"e 0imitation o& actions. (n one case t"e ri$"t is !"o00y destroyed= !"i0e

in t"e ot"er it is mere0y reduced &rom a per&ect and en&orcea;0e one to

an imper&ect

=n and unen&orcea;0e one= e$= a creditor 0oses "is ri$"t o& action &or t"e de;t

ctC a&ter a period o& six years= !"ic" is t"e period o& 0imitation= ;ut t"e de;t

!e itse0& is not extin$uis"ed= a0t"ou$" it ;ecomes imper&ect and

unen&orcea;0e= as ,$reement ed

o& ,$reement as a tit0e o& proprietary ri$"ts in rem may ;e o& t!o kinds=

:iT=

Gr s PiQ assi$nment and PiiQ $rants. y assi$nments= existin$ ri$"ts are

trans&erred

0as &rom one o!ner to anot"er. y $rant= ne! ri$"ts are created ;y !ay o&

o& encum;rance upon t"e existin$ ri$"ts o& t"e $rantor. Sa0e is an

assi$nment=

nd !"i0e 0ease is a $rant.

rse , !e00 accepted $enera0 princip0e o& 0a! is t"at an assi$nee or $rantee

id= cannot $et a ;etter tit0e t"an t"at o& "is assi$nor or $rantor. ,not"er !ayo&

s a statin$ t"e same princip0e is t"at no man can trans&er or encum;er a

ri$"t=

me !"ic" is not "is. 2o!e:er= t"is is not an a;so0ute ru0e. Exceptions arise

or under t!o $roups- PiQ t"ose due to t"e separation o& 0e$a0 &rom eFuita;0e

red o!ners"ip and PiiQ t"ose due to t"e separation o& o!ners"ip &rom

"t= possession.

#"ere t"e 0e$a0 o!ners"ip is in one man= and t"e eFuita;0e o!ners"ip

t"e in anot"er= t"e &ormer is a trustee &or t"e 0atter= and t"e trustee "o0ds t"e

are property on ;e"a0& o& t"e ot"er. Wet "e may $i:e an unencum;ered tit0e to

res# a purc"aser &or :a0ue !it"out notice o& trust. )o t"is extent t"e 0e$a0o!ner

<st= can trans&er to anot"er a ;etter tit0e t"an "e "as= not!it"standin$ t"e

ent maxim= ne'o dat Oui non habet# ie= no man can $i:e a ;etter tit0e t"an

t"at

m$ !"ic" "e "imse0& "as.

( #"en possession o& a t"in$ is in one person and o!ners"ip in anot"er=

t"e t"e possessor is= in certain cases= a00o!ed to $i:e a $ood tit0e to one !"o






(n"eritance

A right 6a* be inheritable# or uninheritable. It is inheritable if it survives its o&ner#

uninheritable if it dies &ith hi6. This division is to a large e3tent coincident &ith that bet&een proprietar* and personal rights. Personal rights are# in al6ost all cases# sointi6atel* connected &ith the personalit* of the person in &ho6 the* are vested that the*are incapable of separate and continued e3istence. The* are not 6erel* divested b* thedeath of the person# but are &holl* e3tinguished. In so6e rare cases# personal rights areinheritable as# for instance# the status of hereditar* nobilit*# and the political and other privileges accessor* thereto. The rights# &hich a dead 6an leaves behind hi6# vest inso6e person &ho6 the dead 6an or the la& on his behalf has appointed to represent hi6.All the rights and liabilities of the deceased# &hich are capable of surviving hi6# pass tohis legal representatives# but the liabilit* of the legal representative is li6ited to thea6ount of the propert* that he has inherited fro6 the deceased. Thus# inheritance 6a* be

said to be a legal and fictitious continuation on the personalit* of the deceased.The representative of the dead 6an is not necessaril* the beneficial o&ner of the propert* of the deceased vested in hi6. -e holds the propert* on behalf of t&o classes of persons# na6el*# the creditors and the beneficiaries of the estate# a6ong &ho6 he hi6self 6a* or 6a* not be nu6bered.

The beneficiaries &ho are entitled to the residue after satisfaction of the creditors are of t&o classes/ those no6inated b* the last &ill of the deceased# and those appointed b* thela& in default of an* such no6ination. The succession of the for6er is testa6entar*# andthat of the latter is intestate. Regarding intestate succession# the la& is guided b* the presu6ed intention of the deceased# and confers the estate upon his relatives in the order of pro3i6it*. In default of an* non'relatives# propert* of an intestate is clai6ed b* thestate itself# and goes /ona vacantia to the state.

+enerall*# a person>s &ill dul* declared in the docu6ent# &hich is significantl* called a&ill# is held inviolable b* the la&. This po&er of the dead hand to deter6ine the rightsand responsibilities of living 6en is a fa6iliar feature of the la&. Nevertheless# so6eli6itations are i6posed b* the la& upon the testa6entar* po&er. The* are/

(i Limitation of time- It is onl* during a li6ited period after his death that thedirections of the testator as to the disposition of his propert* are held valid. An*violation of this restriction 6akes the testa6entar* disposition &holl* void under English La&# but void onl* for the e3cessive period under Indian La&.

,:%



Propert%

(ii Li'itation of a'ount: ost legal s*ste6s li6it the testa6entar* po&er b* providing that the testator can deal &ith onl* a certain portion of his estate# and theresidue 6a* be allotted b* the la& to those to &ho6 he o&es a dut* to support#

na6el*# his &ife and children.

(iii Li'itation of purpose: It is not per6issible in e3ercise of the po&er of testa6entar*disposition to &ithdra& propert* fro6 the use of the living. Thus# no 6an can directthat his propert* shall lie &aste after his death# or his valuable belongings be buried&ith hi6.



78/



Lecture 77

;0i$ations

All of us use the &ord >obligation> in our dail* conversations. e generall* use the &ordas a s*non*6 for dut*. As a legal ter6# >obligation> has a 6eaning different fro6 dut*.Ro6an La& 6ade a distinction bet&een dominium, &hich creates rights in re6# ando/li#atio, &hich gives rights in persona6. -LA -art observes that obligation e3ists b*virtue of a rule. Cbligations 6a* be 6oral as &ell as legal. -art identifies the follo&ingdifferences bet&een 6oral and legal obligations/

(i Ever* 6oral rule is treated as being i6portant# but this is not so &ith ever* legal

rule. (ii oral rules are not changed b* deliberate single acts# &hile legal rules can be sochanged.

(iii $reach of 6oral rules reuires voluntar* and bla6e&orth* conduct# but 6an*legal rules can be broken &ithout fault.

(iv oral pressure is applied 6ainl* to appeal to the 6oralit* of the conduct# &hereaslegal rules are applied 6ainl* b* coercion.

The distinction bet&een 6oral and legal obligations follo&s fro6 the above distinction bet&een 6oral and legal rules.

Dias considers dut* as a species of obligation. It is possible to differentiate bet&een adut* and an obligation in three 6ain respects# viH/

(i Cbligation is a dut* in persona6. E3a6ples include the duties to pa* a debt# to perfor6 a contract# or to pa* da6ages for tort. Duties in re6# such as the dut* torefrain fro6 interference &ith the person# propert*# or reputation of others is notconsidered as an obligation in the legal sense.

(ii Cbligation denotes the legal bond or vinculum 'uris in its entiret*# including boththe right of one part*# and the liabilit* of the other in the sa6e transaction. hen&e look at the transaction fro6 the point of vie& of the person entitled# anobligation is a




right. ro6 the point of vie& of the person bound# it is a dut*. Thus# &e 6a* sa* thatthe creditor acuires# o&ns or transfers an obligation. )orrespondingl*# the debtor hasincurred or has been released fro6 an obligation# (iii Cbligation denotes the

proprietar* rights in persona6 of an individual. In this sense# an obligation is definedas a dut*# &hich corresponds to a proprietar* right in persona6. Rights &hich relate toa person>s status are not obligations even though the* are rights in persona6. A clear e3a6ple is the rights created b* 6arriage.

An obligation is also called a chose in action# or a thing in action. It 6eans a proprietar*right in persona6. A debt# a share in a co6pan*# 6one* in the public funds# or a clai6 for da6ages for a tort are all choses in action. Cn the other hand# non'proprietar* rights in persona6# such as those &hich arise fro6 a contract to 6arr*# are not considered aschoses in action.

The distinction bet&een do'iniu' and obli)atio in Ro6an La&# &hich &e have

6entioned at the beginning of this lecture# is reflected in the distinction bet&een chosesin action# and choses in possession. A chose in action# as &e have seen# is a proprietar*right in persona6. All other proprietar* rights# including such ob8ects of rights as areidentified &ith the rights the6selves# are choses in possession.

-istoricall*# these t&o ter6s &ere used in a different sense. A chose in possession &asan* thing or right &hich &as acco6panied b* possession# &hile a chose in action &as an*thing or right of &hich the clai6ant had no possession# but &hich he 6ust obtain# if need be# b* &a* of an action at la&. one* in *our pocket or purse is a thing in possession.one* &hich a debtor o&es *ou is a thing in action.

This distinction is largel* coincident of the distinction bet&een real and personal rights.Real rights are co66onl* possessed as &ell as o&ned# &hile personal rights areco66onl* o&ned# but not possessed. -o&ever# it 6ust be re6e6bered that thiscoincidence is not co6plete. or instance# a chattel stolen fro6 its o&ner &as reduced# sofar as he &as concerned# to a thing in action# but his right of o&nership &as not thereb*reduced to a 6ere obli)atio*

In the earl* period# the la& attributed e3traordinar* i6portance to the fact of possession. +raduall*# this i6portance di6inished and the distinction# bet&een things in possession and things in action also lost the original significance# and these t&o ter6sacuired a ne& 6eaning. Criginall*# shares and annuities &ere considered as things in possession# but no& the* are considered as things in action. Lands and chattels are no&considered as things in possession# irrespective of &hether the o&ner

,:"



=/li#ations

retains possession. Cbligations# &hich &ere treated as the 6ost i6portant species of things in action# are no& the onl* species. 9o6e 8urists have suggested that i66aterial propert* such as patents# cop*rights# and trade6arks should be treated as choses in

action# but this suggestion has not been accepted both b* the old la& and the ne&.Paton is of the vie& that the onl* logical division is into the rights created directl* b*la&# and rights created b* the consent of another. In ter6s of duties# the classification&ill be into duties i6posed on a person against his &ill# and duties &hich he freel*accepts. Paton considers this division as a logical basis for understanding the nature of obligations as &ell.

So0idary ;0i$ations

Crdinaril* in an obligation# there &ill be one creditor# and one debtor. -o&ever# there

6a* be transactions in &hich there are t&o or 6ore creditors# or t&o or 6ore debtors. Anobligation in &hich t&o or 6ore debtors o&e the sa6e debt to the sa6e creditor is calleda solidar* obligation. or instance# $ and $# t&o partners of a fir6# o&e Rs @#%%% to %. Itis a single debt of Rs @#%%% o&ed b* each of the6# and not several debts of Rs ,#@%%each b* $ and separatel*. The creditor % can co6pel each of the debtors to pa* the&hole debt of Rs @#%%%. In the language of Ro6an La&# &e can sa* each of the debtorsis bound in solidum instead of proparte, ie# for the &hole# and not for a proportionate part. hen the debt is paid b* either $ or , both are discharged fro6 it.

9olidar* obligations 6a* be classified into (i severalG (ii 8ointG and (iii 8oint andseveral. e &ill briefl* e3a6ine these three kinds of solidar* obligations.

Se:era0

In this case# although the thing o&ed is the sa6e in each case there are as 6an* distinctobligations and causes of action as there are debtors. Each debtor is bound to the creditor b* a distinct and independent vinculum 'uris (legal bond# since in each case# the sub8ect6atter of the obligation is the sa6e. Perfor6ance b* one of the debtors necessaril*discharges all the others also. or instance/

(i the liabilit* of a principal debtor and that of his suret*# provided that the contractof suret*ship is subseuent to# or independent of# the creation of the debtG

(ii the liabilit* of t&o or 6ore co'sureties &ho guarantee the sa6e debtindependentl* of each otherG

781




(iii separate 8udg6ents obtained in distinct action against t&o or 6ore persons liablefor the sa6e debtG and

(iv the liabilit* of independent &rongdoers &hose acts cause the sa6e da6age.

In 1homson v 1he London %ounty %ouncilE the plaintiff>s house &as da6aged as a resultof e3cavation negligentl* 6ade b* $, and also as a result of the negligence of , a &ater co6pan*# in leaving a pipeline insufficientl* stopped. -ere# the acts of $ and causedthe sa6e da6age# but since their acts &ere uite independent of each other# the liabilit*of the parties &as held to be several.

oint

hen there is onl* one single legal bond or vinculum 'uris binding all the debtors# theobligations is called 8oint. There is onl* one cause of action as against all# &hereas in

several solidar* obligations# there &ill be as 6an* causes of actions as there are debtors.As a conseuence of the unit* of obligations# all the debtors are discharged b* an*thing&hich discharges an* of the6# eg/

(i the debts of the partners of a partnership fir6G (ii the liabilit* of a principal debtor and that of his suret* &here the principal debtor

and the suret* sign a 8oint bondG and (iii the liabilit* of t&o or 6ore co'sureties &hen the* 8oin in a single contract of

guarantee.

oint and 9everal

hen the creditor has the option to treat the liabilit* either as 8oint or as several# it iscalled 8oint and several solidar* obligation. or so6e purposes# the la& treats the6 as 8oint and for so6e other purposes# as several. Qnder s "; of the Indian )ontract Act !:2,#liabilit* is 8oint and several unless there is an agree6ent to the contrar*. A pro6isee cansue an*one or so6e of the 8oint pro6isors# and all the pro6isors need not be 6ade partiesto the suit. A suit for contribution &ould lie bet&een the debtors. or instance# if $ and

o&e Rs !%% to %, the co66on creditor# and $ has been co6pelled to pa* the &hole debtof Rs !%% to %, then $ can sue for contribution.

A fe& 6ore illustrations &ould 6ake the difference bet&een the above three t*pes of obligations clear. hen $ has received a loan fro6 % under a pro6issor* note e3ecuted b* hi6 on a particular date and at a subseuent date# guarantees the sa6e debt of $ b*e3ecuting a suret* bond# the

/ A/899B / 85.

,:5





(bli)ations

liabilit* of both ! and 9 is several. Cn the other hand# if ! and 9 e3ecuted the sa6e debt bond on the sa6e date# the liabilit* of both ! and 9 is 8oint. T&o or 6ore persons 6a*have 8oint and several obligations under the sa6e contract. hen the* are separatel*

sued and 8udg6ent is obtained against each of the6# the* are no longer 8ointl* liable# butseverall* liable for the sa6e obligation.

Sources o& ;0i$ation

$ased on their origin# the obligations recognised b* English la& are divided into four classes# viH/

(i )ontractual/ (bli)ationes ex contractu1 (ii Delictal/ (bli)ationes ex delicto1

(iii Vuasi'contractual/ (bli)ationes Ouasi ex contractu1 and (iv Inno6inate.

Let us e3a6ine each one of the above sources of obligations in so6e detail. +ontractua0

The 6ost i6portant class of obligations consists of those# &hich are created b* theconsent of parties# ie# b* contract. The* create rights in persona6 bet&een the parties. ehave alread* seen that obligations are the 6ost nu6erous and i6portant kind of rights in persona6. It 6a* be said that the la& of contract is al6ost &holl* e6braced &ithin thela& of obligations. There 6a* be a fe& e3ceptions like a pro6ise of 6arriage# &hich fall&ithin the la& of status# and not &ithin that of obligation. As 9al6ond sa*s# neglectingthe s6all class of personal contract# the general theor* of contract is si6pl* aco6bination of the general theor* of agree6ent &ith that of obligations.

ost of the obligations# &hich are enforced b* la&# are created b* contract. h*should such obligations be enforcedF In 8ustification# &e can 6ention the follo&ing four grounds/

(i -onour principle: Pacta sunt servanda is regarded as a principle of natural la&.Thus# a pro6ise should be honoured b* the pro6isor

\as derived fro6 natural la&. It is associated &ith the honour and self'estee6 of theindividual.

(ii +ill principle: According to this principle# la& should not frustrate the reasonablee3pectations of people# and it should give effect to the &ill of parties as 6anifestedin legal transactions.

783




(iii ar#ain principle- here there is a 6uid pro 6uo, the receiver is bound toreciprocate in the ter6s on &hich the 6uid &as given. hen one part* has perfor6ed his part# the other part* 6ust be held to the perfor6ance of his

undertaking.

(iv n'urious reliance principle- hen a person has altered his possession to hisdetri6ent b* rel*ing on another>s undertaking that other person should 6ake goodhis undertaking# or pa* co6pensation for the detri6ent he has caused.

Delictal

Cbligations# &hich are ter6ed delictal# are those# &hich arise fro6 torts. An obligation of this kind denotes the dut* of 6aking the pecuniar* satisfaction for that species of &rong#

&hich is kno&n as tort.The &ord >tort> has its origin in rench# and it literall* 6eans t&isted# crooked or &rong. In a legal sense# a tort 6a* be defined as a civil &rong for &hich the re6ed* is anaction for da6ages# and &hich is not solel* the breach of a contract or the breach of atrust or other 6erel* euitable obligations. Tortious liabilit* is defined b* infield in thefollo&ing &ords/ >Tortious liabilit* arises fro6 the breach of a dut* pri6aril* fi3ed b*la&G this dut* is to&ards persons generall* and its breach is redressible b* an action for un'liuidated da6ages>.

hen &e co6pare the nature of a dut* in torts &ith that of a dut* in contract# thedifference is at once obvious. In the case of torts# the duties are fi3ed b* the general la&of the land# &hereas in contract# the duties are fi3ed b* the consent of parties. Another significant difference is that the da6ages clai6ed in tort are al&a*s elastic andunliuidated# &hereas it is al&a*s fi3ed and inelastic in contractual obligations. As anillustration# let us consider a person &ho drives a car on a public road. -e is under ageneral dut* to&ards the public to drive the car carefull*. If as a result of his rash andnegligent driving# he has caused in8ur* to an individual on the road# he is liable to pa*da6ages to the in8ured person. The dut* violated is a general dut*# &hich a driver o&es tothe public. -ere the uantu6 of da6ages he has to pa* is not fi3ed in advance# but isrelated to the in8uries suffered b* the person. That is &h* &e call it elastic andunliuidated.

uasi>contractua0

There are certain obligations &hich are not trul* contractual in the sense of based onagree6ents# but the la& treats the6 as contractual. e 6a* sa* that these obligations arecontractual in la&# but not in fact. It is a kind

788





(bli)ations

o& &ictitious extension o& contractua0 o;0i$ations to co:er o;0i$ations=

!"ic" do not rea00y &a00 !it"in it. Roman La! ca00ed t"em obli)ationesOuasi ex contractu* En$0is" La! uses t"e term Fuasi>contract or

imp0ied contract.,ccordin$ to #in&ie0d= it si$ni&ies 0ia;i0ity not exc0usi:e0y re&era;0e

to any ot"er "ead o& 0a!= imposed upon a particu0ar person to pay

money to anot"er person on t"e $round o& un<ust ;ene&it. ;0i$ation

to pay money recei:ed ;y a person under mistake is an examp0e o&

Fuasi>contractua0 0ia;i0ity. Sa0mond is o& t"e :ie! t"at a rationa0

system o& 0a! is &ree to $et rid o& t"e conception o& Fuasi>contractua0

o;0i$ation a0to$et"er.

sted= I &or

t"e a;0e irds- 0a!

an

(nnominate

)"is is a residuary c0ass= to !"ic" a00 o;0i$ations= !"ic" do not come under any o&

t"e a;o:e c0asses o& o;0i$ations= ;e0on$. Suc" a residuary cate$ory is necessary

;ecause t"e c0assi&ications o& o;0i$ations are not ;ased on any 0o$ica0 sc"eme o& di:ision= ;ut proceed ;y simp0e enumeration. (n t"is residuary c0ass= !e can inc0ude

o;0i$ations o& trustees to!ards t"e ;ene&iciaries. #e are not attemptin$ an

e0a;oration o& t"is o;0i$ation "ere ;ecause it "as recei:ed detai0ed considerations in

anot"er 0ecture= :iT= on property.

in ties are t"e t is 0et r a o& "e ed o& es

se

d





!

789



Lecture 74

Lia;i0ity

Liabilit* arises fro6 the &rongful acts of an individual. e have alread* seen that an* person &ho disobe*s the directions of la& faces conseuences. 9uch conseuences &hichare attached to rules of la& in order to co6pel obedience to the6# are called sanctions.Liabilit* or responsibilit* is the chance of a &rongdoer to incur the sanction for his&rong. It is the 8uristic relation of a &rongdoer &ith the sanction of his &rong. It is thelegal bond or vinculu' &uris that e3ists bet&een the &rongdoer# and the evilconseuences of his &rong. According to 9al6ond# a 6an>s liabilit* consists in thosethings &hich he 6ust do or suffer because he has alread* failed in doing &hat he ought.

Earlier in our anal*sis of legal rights# &e have seen that liabilit* is the 8ural co'relativeof po&er# &hich 6eans that liabilit* is the presence of po&er in another. It is also the 8ural contradictor* of i66unit*# &hich 6eans that liabilit* is the absence of i66unit* inone self. hen &e sa* that a person is under a liabilit*# it 6eans that so6ebod* else hasthe po&er to enforce that liabilit*. It also 6eans that the individual &ho is under aliabilit* has no i66unit*# because i66unit* denotes the absence of liabilit*.

La& recognises t&o kinds of liabilities viH# civil# and cri6inal. )ivil liabilit*# &hich is6ostl* re6edial in nature# is concerned &ith the enforce6ent of a right. The liabilit* of adebtor to pa* back the borro&ed a6ount is civil# and re6edial. The ob8ect of cri6inal or penal liabilit* is the punish6ent of the &rongdoer. The liabilit* of a publisher of a libel to be i6prisoned# or to pa* da6ages to the person in8ured b* hi6# is penal in nature.

Remedia0 Lia;i0ity

It is a general principle of la& that &henever la& creates a dut*# it &ould




provide for its enforce6ent as &ell. The liabilit* to be co6pelled b* la& to fulfill legalduties is called re6edial liabilit*. The purpose of such liabilit* is to re6ed* the in8ur*caused b* non'observance of a dut*. +enerall*# &henever a legal dut* e3ists# a re6edial

liabilit* 6ust also e3ist# but in so6e circu6stances a specific enforce6ent of a legal dut*6a* not be possible. La&# therefore# recognises so6e e3ceptions to the general rule of re6edial liabilit*. The* are as follo&s/

(mper&ect Duties

I6perfect duties correspond to i6perfect rights. The breach of an i6perfect dut* gives nocause of action and# therefore# creates no liabilit*. An e3a6ple is a debt barred b*li6itation. Though it is a legal debt# the pa*6ent of it cannot be co6pelled b* an* legal proceedings. 9pecific enforce6ent is not possible in these cases.

(rre:oca;0e #ron$s

hen a libel is published or a cri6inal assault is 6ade# &hat has alread* been donecannot be revoked. To that e3tent# specific enforce6ent beco6es i6possible. -o&ever# if it is a continuing &rong or a threatened in8ur*# it 6a* be stopped or prevented b* issuingan in8unction.

t"er Remedies

The third categor* of e3ceptional cases arises &hen the la& does not resort to specificenforce6ent# but uses other re6edies. Thus# even in cases &here specific enforce6ent is possible# la& 6a* consider da6ages as an adeuate re6ed*.

%ena0 Lia;i0ity

T&o essential conditions 6ust be fulfilled before penal liabilit* can be i6posed upon a person. The* are/ (i actus reus# ie# the doing of so6e act b* the person to be held liable.It is the ph*sical ele6ent of a cri6e# (ii 6ens rea# ie# the 6ental ele6ent of a cri6e or the guilt* 6ind &ith &hich the act is done. These t&o reuire6ents are e6bodied in the6a3i6# actus nonRfacit reu'# nisi 'ens sit rea# ie# the act alone does not a6ount toguiltG it 6ust be acco6panied b* a guilt* 6ind.

Penal liabilit* can be i6posed on a person &hen these t&o ele6ents# actus reus and6ens rea# are present# and proved be*ond doubt. A person

,1,





Liabilit%

&ho is charged &ith the offence of 6urder cannot be convicted 6erel* on proving that he has killed another person. It should further be proved thathe did the act intentionall*# &illfull*# and deliberatel*. Cnl* &hen actus is

acco6panied b* 6ens rea# the t&o conditions of liabilit*# the 6aterial andthe for6al# co'e3ist. It is# therefore# recognised that inevitable accident or 6istake in &hich &rongful intention and culpable negligence are absent#is a sufficient ground for e3e6ption fro6 penal liabilit*.

,cts

An act constitutes the basis of liabilit*. It is# therefore# necessar* tounderstand the nature and t*pes of acts for a clear understanding of thenature of liabilit*. An act is an* event# &hich is sub8ect to the control of

the hu6an &ill. or the purposes of anal*sis# acts 6a* be classified into/

/6ents# person



%ositi:e and Ne$ati:e ,cts

The* are usuall* called acts of co66ission (positive# and acts of o6ission (negative.Liabilit* 6a* arise &hen a person does so6ething &hich he ought not to do# and also&hen he leaves so6ething undone &hich he ought to do. The ter6 >act># therefore#

includes not 6erel* positive acts# but also negative acts or o6issions.

(nterna0 and Externa0 ,cts

Internal acts take place in the 6ind# &hile e3ternal acts are acts of the bod*. hen &ethink of so6ething it is an internal act# but &hen &e speak it is an e3ternal act. e addt&o figures in our 6inds. -ere the act is internal. If &e &rite the t&o nu6bers on a pieceof paper and &ork out the total# it is an e3ternal act. $efore an e3ternal act is done# thereis al&a*s an internal act preceding it# but ever* internal act is not necessaril* follo&ed b*an e3ternal act.

Internal and e3ternal acts 6a* be positive# or negative. hen a 6an decides to rush

for&ard and help a dro&ning person# he is said to have co66itted an internal positiveact. If he actuall* rushes to help# his ph*sical act is an e3ternal positive act. If he sitsuiet &ithout 6oving to help the dro&ning 6an# the act of sitting uiet is an e3ternalnegative act.

(ntentiona0 and Unintentiona0 ,cts

Doing an act &ith the desire that a particular conseuence should happen is an intentionalact. hen an act is not the result of an* conscious desire

794




on the part of the person &ho does it# it is an unintentional act. Intentional andunintentional acts 6a* also be positive or negative. hen a 6an deliberatel* abstainsfro6 doing an act# it is an intentional negative act# but &hen a 6an &ho has to do

so6ething forgot to do it# it is an unintentional negative act.

+onstituents o& an ,ct

e can identif* three distinct constituent parts of an act. The* are/ (i its origin in so6e6ental or bodil* activit* or passivit* of the doerG (ii its circu6stancesG and (iii itsconseuences. Let us consider the e3a6ple of an accidental shooting of a person# andanal*se its constituent ele6ents. It begins &ith a 6ental ele6ent# and then the ph*sicalact consisting of a series of 6uscular contractions b* &hich the rifle is raised and thetrigger is pulled. 9econdl*# the circu6stances are that the rifle is loaded and in &orking

order# and that the person killed is in the line of fire. Thirdl*# let us consider theconseuences. The* are the fall of the trigger# the e3plosion of the po&der# the dischargeof the bullet# its passage through the bod* of the 6an# and his death. Ever* act can besi6ilarl* anal*sed to find out its constituent factors.

hen &e anal*se the circu6stances and conseuences of an act# &e find that the* areendless. In order to fi3 liabilit*# onl* so6e circu6stances and conseuences areconsidered 6aterial and relevant. A person &ill be held liable onl* for thoseconseuences# &hich are the natural and probable conseuences of his acts. It 6a* sohappen that the da6age sustained b* a person is too re6ote a conseuence of the actsco66itted b* another person. In such a situation# la& &ill not a&ard da6ages becauseever* 6an is presu6ed to intend onl* the reasonable and probable conseuences of hisacts. A person cannot be held liable for the endless conseuences of his acts.

)!o +0asses o& #ron$&u0 ,cts

In so6e cases the la& considers the 6ere doing of an act as &rongful because of itsinherentl* dangerous and 6ischievous tendencies. In other cases# liabilit* is i6posed onthe &rongdoer onl* if actual da6age is caused as a result of the &rongful act.

+enerall*# cri6inal liabilit* arises fro6 the 6ere doing of a prohibited act. Theuestion &hether an* da6age has been caused b* the act is not relevant. )ri6inal la&usuall* assu6es the for6# >If *ou do this# *ou &ill be held liable.> The liabilit* in tort# onthe other hand# arises onl* &hen

,1"



Liabilit%

the act results in so6e har6 or in8ur*. The for6ula is# >If *ou do this *ou &ill be held liable# if an* har6 ensues>. A person &ho drives negligentl* &ill not beheld liable in tort# unless his negligent driving has caused so6e in8ur* to an

individual or to his propert*. If the cri6inal la& prohibits dangerous and rashdriving on a public road# a person &ho drives dangerousl* and rashl* &ill be prosecuted# irrespective of &hether an*one has suffered an* in8ur*.

4a'nu' Sine In&uria

All har6ful acts are not &rongful. A har6ful act# &hich is not &rongful#does not give an* right of action to a person &ho has suffered fro6 itseffects. Da6age &ithout breach of a legal right does not give rise to a causeof action. This is called da'nu' sine in&uria* or instance# the o&ner of a

shop 6a* suffer a loss as a result of the opening of a ne& shop b* a rivalnear his shop. The o&ner of the for6er shop has no legal cause of action# because there is no breach of an* legal right. )o6petition in trade is full* per6itted b* la& because it is considered to be beneficial to societ*.9i6ilarl*# a lando&ner 6a* do 6an* things on his o&n land# &hich 6a* be har6ful to his neighbours. The neighbours do not have an* cause of

< action 6erel* on account of the har6. -o&ever# &hen their legall*< recognised rights# such as ease6ents# are infringed the* have a cause of < action# and can prevent the ad8oining lando&ner fro6 doing certain things.

The conventional approach of la& has been to grant large freedo6 too&ners of properties to do &hatever the* like on their o&n properties.Thus# 9al6ond sa*s that a lando&ner 6a* drain a&a* the &ater# &hichsupplies his neighbour>s &ell. hen ne& rights gain recognition b* thela&# the rights of propert* o&ners to do &hatever the* please on their o&n properties have to be restricted in order to protect the ne& rights. henright to drinking &ater is recognised as an integral part of right to life#e3ploitation of ground&ater to an unreasonable e3tent b* a lando&ner#resulting in denial of drinking &ater to neighbouring lando&ners# 6a*give rise to a cause of action. The difficult* involved in reconciling theconflicting rights of the lando&ner and those of the neighboring lando&ners#

e or of the co66unit* in general# is revealed in t&o decisions of the 7eralas> -igh )ourt# &hich &e had considered earlier in our discussion on propert*.! a

# ens Rea d

at ens rea# as &e have e3plained earlier# refers to the state of 6ind of aillGn / See Lecture 7/= p 737.

,1@



(




person co66itting a &rongful act. The 6ental attitude of the &rongdoer is relevant indeter6ining &hether he is guilt*. An act is considered punishable onl* &hen it is doneintentionall* or negligentl*. e 6a*# therefore# sa* that intention and negligence are the

t&o for6s in &hich 6ens rea 6a* e3ist. According to Austin# intention or negligence isan essentiall* co6ponent part of in8ur* or &rong# guilt# or i6putabilit* of breach# or violation of dut* or obligation. Intention or negligence is a necessar* condition precedentto the e3istence of that plight or predica6ent &hich is st*led guilt or i6putabilit*.Intention and negligence are# thus# regarded as the t&o alternative for6al conditions of liabilit*. In addition to these t&o for6al conditions of liabilit*# so6eti6es &e find that thela& considers another state of 6ind called 6otive also as relevant in i6posing liabilit*.

It is also i6portant to re6e6ber that in certain e3ceptional class of cases a person &ill be held liable even in the absence of &rongful intention or culpable negligence. Thesee3ceptional cases are generall* called cases of strict liabilit*. e 6a* classif* legal&rongs into three viH# (i intentional or &illful &rongs in &hich the 6ens rea a6ounts to

intention# purpose# or designG (ii &rongs of negligenceG and (iii &rongs of strict liabilit*.It has been 6ade clear in our earlier discussion that the uestion of 6ens rea is of norelevance to the third categor* of &rongs.

a0ice and ens Rea

The &ord >6alice> has different 6eanings. 9o6eti6es# it is used in the sense of anintention to inflict har6. In this sense# 6alice is a necessar* ingredient in all cri6esreuiring 6ens rea. alice 6a* also be used to 6ean spite# ill &ill# or other i6proper 6otive. alice in the sense of i6proper 6otive is generall* used in the tort of 6alicious prosecution.

+enerall*# 6otives are not considered relevant for deter6ining the e3istence of liabilit*. The la& does not treat an act as unla&ful because of its bla6e&orth* 6otiveGnor does it regard an act as la&ful 6erel* because its 6otive is laudable. -o&ever# thereare so6e e3ceptional cases in &hich 6alice or i6proper 6otive beco6es an essentialfactor in establishing cri6inal liabilit*. )ri6inal atte6pt is one such e3ceptional case. Acri6inal atte6pt is an act done &ith the ulterior intent of co66itting a cri6e. The act initself 6a* be innocent# but it 6a* beco6e punishable because of the cri6inal 6otive b*&hich it is actuated.

Ever* cri6e punishable under Indian Penal )ode !:5% (IP) passes through four stages. The first stage is &hen an intention to co66it the cri6e is conceived. 9econdco6es preparation for the co66ission of the

7^





i

Liabilit%

cri6e. $ttempr to comma chc cri6e is the third stage. If the atte6pt is successful# thenthe fourth stage# na6el*# the co6pletion of the offence is reached. The 6ere for6ation of the intention is not punis"a;0e. (ntention follo&ed b* preparation is also not punishable.

-o&ever# if an act is done to&ards the co66ission and that act constitutes a cri6inalatte6pt# then it beco6es punishable# although the atte6pt has not succeeded# and theoffence has not infact 6aterialised. It is difficult to dra& a sharp line of distinction bet&een preparation and atte6pt. The uestion &hether an act is onl* a preparation# or a6ounts to an atte6pt depends on the circu6stances of each case. A fe& illustrations &ill6ake this point clear.

In arayanaswamy v Amperor 3 the accused &as found travelling in a bus &ith a certain

uantit* of opiu6 for illegal deliver* to a person in rench territor*# &hich &as aboutseven 6iles fro6 the place &here he &as taken into custod*. The court held that the act of

the accused a6ounted onl* to preparation because he had a locus penitentiae, and hecould have changed his 6ind before reaching rench territor*. Let us consider another

situation. A person is found to be in possession of a fe& bottles of liuor in a state &herethe sale of liuor is per6itted. It is alleged that the person is carr*ing the liuor &ith theintention of selling it in the neighbouring state &here the sale of liuor is prohibited b*la&. -ere again# it cannot be considered as a6ounting to an atte6pt to co66it a cri6e

because of the



possibilit* of the potential offender changing his 6ind before reaching theneighbouring state. In another case# ueen Ampress v :ama""a a &o6an ran to&ards a&ell &ith the intention of co66itting suicide# but &as stopped before she reached the&ell. It &as held that she could not be convicted of an atte6pt to co66it suicide becauseshe could have changed her 6ind before reaching the &ell.

The follo&ing illustration# &hich appears in s @!! of IP)# 6akes the distinction bet&een preparation and atte6pt ver* clear. A 6akes an atte6pt to pick the pocket of M

b* thrusting his hand into M2s pocket. $ fails in the atte6pt in conseuence of M2s havingnothing in his pocket. $ is guilt* of cri6inal atte6pt.> This illustration 6akes it clear thatcri6inal intent is absolutel* essential for an act to a6ount to atte6pt. -o&ever# even if itdoes not finall* result in an offence being co66itted# because of circu6stancesindependent of the &ill of the part*# it 6a* still a6ount to an atte6pt to co66it anoffence.

hen la& e3pressl* 6akes ulterior intention# an ingredient of a particular cri6e# the6otive of the person necessaril* beco6es a relevant consideration

7,(R /947 ad 153. 4 P/881Q (LR8 ad 1.

,12




in deter6ining his cri6inal liabilit*. or instance# the offence of cri6inal trespass under the IP) is co66itted &hen a person enters upon propert* in the possession of another &ith a specific ulterior intent of co66itting an offence or inti6idating or anno*ing an*

person in possession of the propert*. In the absence of such ulterior intent# he cannot beheld liable for cri6inal trespass.

Exemptions &rom Lia;i0ity

ecessitas non ha/et le#em, ie# necessit* kno&s no la&. There are situations &hen a person 6a* be co6pelled to do an unla&ful act under coercive pressure &ith such anintensit* that he cannot be regarded as a free agent. -ere# in one sense the act is doneintentionall*# but it is difficult to attribute 6ens rea to the person because he had to actunder co6pulsion. The great philosopher $acon gives the e3a6ple of t&o ship&recked

sailors &ho catch hold of a plank not large enough to hold both of the6. If one of the6#for self'preservation# pushes the other into the sea# he cannot be held guilt* of a cri6e. In order to accept the plea oi 'us necessitatis to e3e6pt a person fro6 liabilit*# it 6ust

be proved that the situation &as so co6pelling as to den* the freedo6 of choicealtogether. It 6a* not secure co6plete i66unit* fro6 penal liabilit*. : v DudleyN is afa6ous case# &hich e3plains the scope and li6itations of the doctrine of 'us necessitatis.The facts of the case sho& that t&o sailors and a bo* &ere floating on the open sea on as6all boat# and after starving for nine da*s# the sailors killed and ate the bo* for their o&n self'preservation. The* &ere subseuentl* rescued# and prosecuted for ho6icide.The* raised 'us necessitatis as a defence. Re8ecting the defence and holding the6 guilt*of 6urder# Lord )oleridge observed/ >To preserve one>s life is# generall* speaking# a dut*# but it 6a* be the plainest and the highest dut* to sacrifice.> In this case# even though thesailors &ere found guilt*# the )ro&n took a lenient vie& and co66uted the punish6entto i6prison6ent for si3 6onths considering the e3tre6e te6ptations to &hich theunfortunate sailors &ere e3posed.

Anal*sing the grounds of the various e3e6ptions fro6 liabilit*# Austin sa*s that the*are reducible to one principle# ie# the part* is clear of liabilit* because he is clear of intention or negligence. La& 6a*# in so6e cases# presu6e that there can be no &ill at alland# therefore# no penal liabilit* can be i6posed. Thus# children under seven *ears andinsane persons are presu6ed to be incapable of having 6ens rea.

P/88Q /D734.

798





Liabilit%

istake is also considered as a ground of e3e6ption fro6 liabilit* because the act isnot intentional. If the part*>s intent &as la&ful# 6istake is a valid ground of defence tocri6inal liabilit*. or instance# if ! intending to kill 9 kills C in 6istake for 9# ! cannot

raise 6istake as a defence because his intent to kill 9 &as not la&ful. e are fa6iliar &ith the stor* of 7ing Dasaratha in ,a'a%ana shooting a 6an to death# thinking that it&as an ani6al drinking &ater fro6 the river that he &as ai6ing to shoot. -ere# since the

7ing>s intent &as la&ful# defence of 6istake &ill be a valid defence. In , v Prince2 a person &ho abducted a girl under the legal age of consent raised the plea of 6istake as toher age. Re8ecting the plea# the court held hi6 cri6inall* liable because the act of takingthe girl a&a* &as itself &rongful.

T&o further conditions for ad6itting 6istake as a defence are that the 6istake should be reasonable# and that the 6istake should relate to a 6atter of fact# and not of la&.

Ne$0i$ence

The uestion &hether negligence is a state of 6ind# or a t*pe of conduct has beencontroversial. The sub8ective theor* of negligence supported b* 8urists like ohn 9al6ondconsiders negligence as a state# or condition of the 6ind. Negligence essentiall* consistsin the 6ental attitude of undue indifference &ith respect to one>s conduct# and itsconseuences. This theor* distinguishes negligence fro6 intention. The &illful&rongdoer foresees and desires the har6ful conseuences of the act and# therefore# doesthe act in order that those conseuences ensue. The negligent &rongdoer# on the other hand# is careless as to &hether the conseuences ensue and# therefore# does the actnot&ithstanding the risk that 6a* ensue.

Another theor* called the ob8ective theor* advanced b* 8urists like redrick Pollock

considers negligence as not a sub8ective# but an ob8ective fact. It is not a particular stateof 6ind or for6 of 6ens rea at all# but a particular kind of conduct. It is the breach of adut* to take care and to take precautions against the har6ful results of one>s actions# andto refrain fro6 unreasonabl* dangerous kinds of conduct. The la& of torts accepts thisvie& of negligence# and applies the standard of the reasonable 6an. infield e3plainsnegligence as the breach of a legal dut* to take care# &hich results in da6age undesired b* the defendant to the plaintiff. Its ingredients are/ (i a legal dut* on the part of !to&ards 9 to e3ercise care in such conduct of ! as falls &ithin a scope of the dut*G (ii breach of that legal dut*G and (iii conseuential da6age to 9*

1 P/831Q 0r7 cc /1.

,11




9al6ond# criticising the ob8ective theor*# has pointed out that it loses sight of theessential distinction bet&een intention and negligence. According to hi6# negligence is purel* 6ental inadvertence. It is nothing 6ore than carelessness. In this sense# intention

and negligence are t&o contrasted and 6utuall* inconsistent 6ental attitudes of a personto&ards his acts and their conseuences. In other &ords# the careless 6an is he &ho doesnot care# &ho is not an3ious and not sufficientl* an3ious that his activities shall not bethe cause of loss to othersG the &illful &rongdoer is he &ho desires to do har6G and thenegligent &rongdoer is he &ho does not sufficientl* desire to avoid doing it. Thus#negligence and &rongful intent are inconsistent and 6utuall* e3clusive states of 6ind.

hat appears to be negligence 6a* upon closer e3a6ination of the part*>s state of 6ind turn out to be &rongful intention. or instance# a trap door 6a* be left unbolted inorder that one>s ene6* 6a* fall through it and die. Poison 6a* be left unlabelled &ithintent that so6eone 6a* drink it b* 6istake. In these and si6ilar cases# can &edistinguish intentional and negligent &rongdoer# e3cept b* reference to his 6ental

attitude to&ards the act and its conseuencesF E3ternall* and ob8ectivel* the t&o classesof offences are indistinguishable.It 6a* be 6ore appropriate to sa* that the ter6 >negligence> has t&o 6eanings# and

each theor* represents one of these 6eanings. rongful intention is a state of 6ind# andits contrast negligence is also the sa6e. The la& takes no heed of a 6an>s 6ind# e3cept inso far as it e3presses itself in 6aterial acts. In other &ords# it is onl* &hen negligenceconsidered fro6 the sub8ective standpoint has resulted in the acts that the la& takes noticeof it.

+lanville illia6s has atte6pted to reconcile the t&o conflicting theories of negligence. hen it is stated that negligence 6eans negligent conduct# one contrastsnegligence &ith absence of fault# ie# diligence# inevitable accident# or 6isadventure. Thestandard is an e3ternal one# and there is no inuir* into the 6ind of the parr* alleged to be negligent. -o&ever# if the issue lies bet&een negligence and intention# one 6ust look into his 6ind in order to ascertain &hether the conseuence &as desired. Thus# the6eaning of negligence turns on the contrast that is being pointed out. +lanville illia6s#therefore# concludes that negligence 6eans a non' intentional failure to confor6 to theconduct of a reasonable 6an in respect of the conseuence in uestion and it# therefore#involves both a sub8ective and an ob8ective inuir*.

Duty to )ake +are

)arelessness as such is not a ground of legal liabilit*# e3cept in those cases in &hich thela& has i6posed a dut* of care. No general principle can be

;%%



Liabilit%

laid do&n &ith regard to the e3istence of this dut*. This is a 6atter pertaining to thedetails of particular legal s*ste6s. +enerall*# &e can sa* that cri6inal la& does noti6pose liabilit* for negligence. )ri6es are 6ostl* &illful or intentional &rongs.

Negligence as a for6 of 6ens rea is dee6ed as an insufficient ground for the rigour of cri6inal 8ustice. -o&ever# this is not an invariable rule. In so6e instances# like negligentho6icide and rash driving# the la& i6poses cri6inal liabilit* even for negligent acts. Thecivil la&# on the other hand# generall* observes no such distinction bet&een intentional&rongdoing# and negligent &rongdoing. If an act &ould be a civil &rong &hen donenegligentl*# it &ould be so even &hen not done negligentl*# but intention beco6esrelevant in so6e instances like suit for da6ages# 6alicious prosecutions etc.

Standard o& +are

Cbviousl*# carelessness or negligence 6a* e3ist in an* degree. The degree .of carelessness varies directl* &ith the risk to &hich other persons are e3posed b* the act inuestion. The risk depends first on the 6agnitude of the threatened evil# and then on the probabilit* of it. The greater the evil is and the greater is the probabilit*# greater is thecarelessness or indifference of the persons &ho create the danger.

If carelessness varies in degree# then &hat is the standard of care reuired b* la&#&here a dut* to take care e3istsF The la& does not de6and the highest degree of care of &hich hu6an nature is capable. The la& de6ands a reasonable degree of care in vie& of the 6agnitude and possibilit* of the risk. In other &ords# the la& prohibits unreasonablecarelessness# but does not de6and unreasonable care. Is it sufficient that a person acted ingood faith to the best of his 8udg6ent and belief# and took all precautions he honestl*thought &ere reuired under the circu6stances of the caseF The uestion is reall* not&hether he thought his conduct sufficientl* careful# but &hether infact it attained thestandard of due care established b* la&.

The standard of care established b* la& is that of a reasonable 6an in identicalcircu6stances. Negligence# &e 6a* sa*# is the o6ission to do so6ething &hich areasonable 6an &ould do# or doing of so6ething &hich a reasonable 6an &ould not do.The standard of care reuired is not that of the average 6an# but that of the reasonable6an. This is a uestion of fact depending on the circu6stances of each case. Indeter6ining the standard of care# t&o relevant 6atters &hich arise for considerations are/(i the 6agnitude of the risk to &hich other persons are e3posedG and (ii the i6portanceof the ob8ect to be attained b* the activit*. The reasonableness of an* conduct &ill dependupon the proportion bet&een these t&o

45/




ele6ents. To e3pose others to danger for a disproportionate ob8ect is unreasonable#&hereas an eual risk for a better cause 6a* be considered reasonable. or instance#running trains at a speed of @% kilo6etres per hour 6a* increase the chance of accidents#

&hich 6a* be avoided b* reducing the speed to !% kilo6etres per hour. -o&ever#reducing the speed to such level &ould be disproportionate to the great convenience of the general public b* running trains at @% kilo6etres per hour. 9o# &hen the trains are runat a higher speed# &e do not consider it as belo& the standard of reasonable care# or as aconduct guilt* of negligence.

,;so0ute Lia;i0ity

The general principle is that a person is held liable for his &rongful acts &hen such actsare co66itted either intentionall*# or out of culpable negligence. -o&ever# there is a

class of &rongs for &hich a 6an is held responsible irrespective of the e3istence of either &rongful intent# or negligence. This kind of liabilit* is called absolute liabilit*# or strictliabilit*.

hile there is general agree6ent that 6ens rea 6ust be the basis of penal liabilit*#there are 6an* 8urists &ho think that the absolute liabilit* 6ust be the rule in civil la&.The* ask/ if the defendant did har6 to the plaintiff# &h* should he not be 6ade toco6pensate for itF hat does it 6atter to the plaintiff &hether the defendant did the har6&illfull*# or negligentl*# or b* accidentF The* find no 8ustification to let an innocent person suffer on account of an accident or 6isfortune on the part of the defendant.9al6ond# &ho does not agree &ith this vie&# observes that the supporters of this vie&confine their observation to the plaintiff>s rights and losses# but do not think of thedefendant at all. -e asks# >&hat 8ustification can there be in punishing a defendant if he isnot at faultF> It is better to consider the situation as an accident on the part of thedefendant# and a 6isfortune on the part of the plaintiff. 9al6ond suggests that in suchcases the loss should lie &here it has alread* fallen.

The rule of absolute liabilit*# or strict liabilit*# is an atte6pt to reconcile theseconflicting positions on grounds of practical e3pedienc* in the ad6inistration of 8ustice.The chief instances of absolute liabilit* 6a* be divided into three classes viH# (i 6istakeof la&G (ii 6istake of factG and (iii accident.

istake o& La!

No one &ill be per6itted to escape liabilit* for his acts b* pleading ignorance of la&. #norantia 'uris non e7cusat is a 6a3i6 &hich has been<

;%,



Lia/ility

accepted b* all legal s*ste6s. Even if a 6an had actuall* no kno&ledge of the la& inspiteof his best efforts to acuaint hi6self &ith it# he &ill be 6ade liable for a breach of thatla&.

The rigorous application of this principle 6a* see6 to be un8ust and unrealistic# butthere are three i6portant reasons for the application of this principle. irst of all# the la&is considered to be definite and kno&able. It is the dut* of ever* 6an to kno& that part of the la&# &hich concerns hi6. 9econdl*# if ignorance of la& is accepted as an e3cuse# theevidential difficulties for ad6inistration of 8ustice &ill be insuperable. Ever*unscrupulous 6an &ould raise the plea to escape liabilit*# and &ho can sa* &ith certaint*as to &hat &as the e3act condition of his 6ind. The third reason is that in 6ost cases thela& is derived fro6# and is in har6on* &ith the rules of natural 8ustice. The la& is the public declaration b* the state of its intention to 6aintain those principles of right and&rong &hich have alread* secured a place in the 6oral consciousness of 6en. Therefore#although a 6an 6a* be ignorant of the fact that he is breaking the la&# he kno&s ver*

&ell in 6ost cases that he is breaking the rule of right.The decision of the 9upre6e )ourt of India in tate of ?aharashtra v <eor#eI

illustrates the application of this rule. In this case# a person &as charged &ith bringinggold to India in contravention of a notification a6ending the relevant rules published inthe +aHette of India on ," Nove6ber !15,. -e reached India on ,: Nove6ber fro69&itHerland# and pleaded ignorance of the notification. Infact# he had no reasonable6eans to kno& the contents of the notification. 9till# the court held that since thenotification &as published in India# its ignorance b* the accused &as irrelevant# andcannot be accepted as a defence.

istake o& *act

It is generall* said that 6istake of fact is a good defence# but this is not true in the case of civil liabilit*. Even if a person causes loss to another person innocentl* and under aninevitable 6istake of fact# he &ill be held liable for the loss. -o&ever# in cri6inal la&#6istake of fact is generall* a good defence# and absolute cri6inal liabilit* for 6istake of fact is an e3ception. This is consistent &ith the essential condition of penal liabilit* thatthere should be a 6ind at fault before a 6an &ould be convicted of a cri6e. The uestion#ho&ever# is ho& can &e find a 6ind at fault# &hen the 6ind &as under a genuine 6istakeof factF )onsider the follo&ing situation. A 6an before going to church fired a fe& shotsfro6 his gun# and left it e6pt*.

6 ,(R /961 S+ 377.

;%;




During his absence# another person took the gun# &ent out for shooting# and negligentl*

left it loaded. The o&ner# on his return# took the gun and touched the trigger. The gun

&ent off# and killed his &ife &ho &as in the sa6e roo6. The court allo&ed 6istake of

fact as a defence because the 6an had reasonable ground to believe that the gun &as not

loaded. -e &as thus acuitted.2 -o&ever# 6istake of la& is not accepted as a defence if the act is &rong# irrespective of the fact that it is 6istaken. The abduction of a girl under the legal age of consent is an e3a6ple. -ere the accused &as not per6itted to plead thathe believed her to have attained the age of consent# because the act itself &as &rong in

la&.:

Accident

An act# &hich is not done intentionall*# 6a* be done either accidentall*# or b* 6istake.

hen an act is unintentional in respect of its conseuences# it is said to be doneaccidentall*. hen an act is unintentional in respect of its circu6stances# it is said to bedone b* 6istake. or instance# if the driver of a vehicle drives over a 6an because of asudden 6echanical proble6 in the vehicle# his act is accidental# because the conseuenceis not intended. If a police6an arrests a person 6istaking hi6 for another# the arrest is notaccidental# but b* 6istake. -ere the conseuences are intended# but the circu6stance of 6istaken identit* is not intentional.

Accidents 6a* be classified into t&o/ (i culpableG and (ii inevitable. An accident isculpable &hen it is due to negligence. hen an accident could not have been avoided b*reasonable care# it is called an inevitable accident. In culpable accident# 6ens rea in thefor6 of negligence is involved# and it is not a valid defence to liabilit*# but inevitable

accident is generall* accepted as a good defence. 9trict liabilit* is an e3ception to thisrule. In :ylands v Fletcher O the rule of strict liabilit* &as laid do&n. In this case# a 6ill'o&ner e6plo*ed independent contractors to construct a reservoir on his land to provide&ater for his 6ill. hen the reservoir &as filled# the &ater fro6 it escaped and floodedthe 6ines of a neighbour. The 6ill'o&ner &as not negligent# but he &as held liable. Thecourt said/ >A person &ho keeps on his land an*thing &hich is kno&n to be dangerous if itescapes shall be liable for all the natural and probable conseuences of its escape eventhough its escape &as an inevitable accident.> The absence of 6ens rea and the taking of all reasonable care &ill not absolve a person fro6 liabilit* in such a situation. Theliabilit* in such a case is an instance of absolute liabilit*.

3 *oster 761 K@+ 73. 8 , v Prince P/831Q LR 7++ /1.

9 P/868Q LR4 2L 445.

;%"



Liabilit%

'icarious Lia;i0ity in +i:i0 La!

icarious liabilit* 6eans the liabilit* of one person for the &rongful act of t

another. A 6aster is vicariousl* liable for the acts of his servants done in the@ discharge of their duties.

s The principle of vicarious liabilit* is based on e3pedienc*# and public

8 polic*. It is &ell accepted that ever* person &ho co66its a &rong &hile

t carr*ing on his o&n activities &ould be ans&erable to the in8ured parties

for such &rong. It is onl* a logical e3tension of this principle that if an*one# for an*reason# desires that his business should be done b* other persons# such delegationshould be on condition that he 6ust continue to be ans&erable for the conduct of those persons to &ho6 he has delegated his business. This rule is based on the 6a3i6 Oui fa;# it per aliu' facit per se# ie# f he &ho does a thing b* the instru6entalit* of another is considered as if

sS had acted in his o&n person.

9ervants 6a* not be financiall* sound persons and# therefore# cannot I)

afford to pa* co6pensation to the in8ured part*. The 6aster having placed#Tl the servants in a position &here the* can do in8ur* to others is obliged b*

o&

<\ la& to assu6e the liabilit* to pa* for the in8ur*. This is the doctrine of 0e nt

respondeat superior# ie# let the 6aster ans&er. The la& in this &a* preserves a 8ust correspondence bet&een abilit* to pa* for &rongs# and opportunities for co66itting the6.

The uestion arises &hether an in8ured part* can clai6 da6ages fro6 8ethe 6aster for the in8ur* done b* the servant onl* if he can sho& that theis is his

&rongful act &as actuall* authorised b* the 6aster. )onsidering the evidentialdifficulties involved in proving such authorisation b* the 6aster# the la& la*s do&n thatif the act &as done in the course of the servant>s duties# the 6aster &ill incur vicariousliabilit*. % 8r A second for6 of vicarious liabilit* is the liabilit* of legal representatives

< after the death of the &rongdoer. The )o66on La& accepted the 6a3i6

ne actio personalis 'oritur cu' persona# ie# a personal action dies &ith the

person.>A This )o66on La& rule &as abrogated in England b* the La&

s if (iscellaneous Provisions Act !1;"# &hich provided that the causes of \ its action subsisting against or vesting in a person# sub8ect to so6e e3ceptions/ of and restrictions# survive against# or for the benefit of his estate. Thus# legalson representatives are liable in contract# and tort.nee

The 6ain 8ustification for i6posing vicarious liabilit* on the legalrepresentatives of the &rongdoer is its deterrent effect. If the death of the&rongdoer &ould result in e3tinction of liabilit* in respect of the &rong# a



person in anticipation of his death 6a* enter into contracts or launchdefa6ator* attacks &ith i6punit*. The kno&ledge that his estate and his

;%@



w


legal representatives &ould be ans&erable for such &rong# &ould certainl* act as acheck against such 6ischievous propensities. A positive aspect of such vicarious liabilit*is that the in8ured part* is not 6ade to suffer on account of the accidental circu6stanceof the death of the &rongdoer.

'icarious Lia;i0ity in +rimina0 La!

The general principle of cri6inal la& is that one person is not punished for a cri6eco66itted b* another. A person 6a* be punished as abettor of a cri6e co66itted b*

another. -o&ever# in such a case he is punished for his o&n act of abet6ent# and not for the cri6inal act co66itted b* another. Thus# &e 6a* sa* that cri6inal la& does notfollo& the liabilit*# &hich is generall* accepted in civil la&. -o&ever# there are so6esituations in &hich one person 6a* be held liable for a cri6e co66itted b* another.9ection !@@ of IP) is an e3a6ple. Qnder this section# a person is held liable for a riotco66itted on his land# >if it &as for his benefit# and his # agent or 6anager# having reasonto believe that such a riot &as likel* to be co66itted# takes no steps to prevent or tosuppress it>. Another instance of vicarious cri6inal liabilit* is the liabilit* i6posed on thedirectors of a co6pan* for corporate cri6es even though the* 6a* not be directl* and personall* involved in the co66ission of the cri6e.



;%5



Lecture ,"

La! o& %rocedure

Scope o& La!

La& &ill not serve an* useful purpose# if it 6erel* enu6erates so6e rights

&hen it prescribes the 6anner in &hich the re6edies are 6ade available# and the&rongdoers are punished. As )P -arve* observes/

The substantive la&# &hich defines our rights and duties is# of course# i6portantto all of us# but unless the ad8ective la& of procedure is a &orking 6achine#

constantl* translating these obligations in ter6s of court orders and actual

e3ecution# substantive la& 6ight 8ust as &ell not e3ist.!

The broad division of la& into substantive la& and la& of procedure is onl* for anal*tical purposes# because &e often find that both of the6 overlap. 9o &hat is the basis of distinction bet&een substantive la& and procedural la&F 9o6e people sa* thatsubstantive la& defines rights# &hile the la& of procedure deter6ines re6edies. This isnot totall* correct. There are 6an* rights# &hich are procedural in nature# like# a right of appeal# a right to give evidence on one>s o&n behalf# a right to interrogate the opposite part* etc. Rules defining re6ed* or punish6ents 6a* also be a part of substantive la&.

A 6ore accurate &a* of defining the la& of procedure is b* describing it as that branchof the la&# &hich governs the process of litigation. -ere the &otd >litigation> includes alllegal proceedings—civil or cri6inal. It is easier to describe substantive la& as the residue&hich relates to the purposes# and sub8ect 6atter of litigation. According to 9al6ond#substantive la& is concerned &ith the ends# &hich the ad6inistration of 8ustice seeks# and procedural la& deals &ith the 6eans and instru6ents b* &hich those ends are to beattained.

/ P/9Q 3 odern La! Re:ie! 7= pp 9>15.




Nor6all*# the process of litigation involves the follo&ing five ele6ents/ (i Summons- It is issued b* the court calling upon the defendant to ans&er the

plaintiff>s state6ent. It secures an opportunit* to the defendant to be heard beforethe 6atter is ad8udicated.

(ii %0eadin$s- The state6ent put before the court as to the uestions of fact or la&#&hich are in issue.

(iii %roo&- The process b* &hich the parties supplied the court &ith the data necessar*for the decision of those uestions.

(iv Jud$ment- The decision of the court on the uestions of fact or la& in issue.

(v Execution- The process b* &hich the court enforces co6pliance &ith the 8udg6ent.

Cf the above five ele6ents# onl* the third# viH# proof# deserves our detailed attention. It isthe sub8ect 6atter of a separate branch of la& called the la& of evidence.

9Q$9TANTIE LA PRC)EDQRAL LA Definesrights and re6edies Deals &ith 6odes in &hichand relations of people Regulates affairs inside court

)oncerns the contents of 8udicial decisions

Provides the &a* forarriving at those

E:idence

hen fact $ tends in an* degree to render the e3istence of fact probable# &e 6a* sa*that $ is evidence of . The ualit* b* virtue of &hich it has such an effect is called its probative force. An* fact# &hich possesses probative force# is evidence. The degree of intensit* of probative force 6a* differ &hen it is sufficient to for6 a rational basis for theinference that the fact so evidenced reall* e3ists. The evidence possessing it is said toconstitute proof.

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Law of Procedure

The fact# &hich is evidenced# is called the evidential fact. The fact of &hich it isevidenced is called the principal fact. Evidence 6a* be 8udicial or e3tra'8udicial. udicialevidence is that &hich is actuall* produced in the court. E3tra'8udicial evidence is that

&hich does not co6e directl* under 8udicial cognisance# but nevertheless constitutes aninter6ediate link bet&een 8udicial evidence# and the fact reuiring proof. All testi6on*given b* &itnesses in court# and all docu6ents# produced in court are 8udicial evidence. If a docu6ent is kno&n to the court onl* through a cop* or through the report of a &itness#it is e3tra'8udicial evidence. A confession of guilt is 8udicial evidence if 6ade to the courtitself# but it is e3tra'8udicial if 6ade else&here# and proved to the court b* so6e for6 of 8udicial evidence. udicial evidence reuires onl* production# &hile e3tra'8udicialevidence needs proof.

Evidence 6a* be personal or real. Personal evidence is also called testi6on*. Itincludes all kinds of state6ents regarded as possessing probative force in respect of thefacts stated. Testi6on* 6a* be oral or &ritten# 8udicial or e3tra'8udicial. Real evidence

includes all the residue of evidential facts.Evidence is also classified as pri6ar*# and secondar*. Pri6ar* evidence is evidencevie&ed in co6parison &ith an* available# and less i66ediate instru6ent of proof.9econdar* evidence is that &hich is co6pared &ith an* available# and 6ore i66ediateinstru6ent of proof. The pri6ar* evidence of the contents of a &ritten docu6ent is the production in court of the docu6ent itself. 9econdar* evidence is the production of thecop* or oral testi6on* as to the content of the original. Pri6ar* evidence that $ assaulted is the 8udicial testi6on* of % that he sa& the assault. 9econdar* evidence is the 8udicialtesti6on* of D that % told hi6 that he sa& the assault.

Evidence 6a* be direct or circu6stantial. Direct evidence is testi6on* relatingi66ediatel* to the principal fact. All other evidence is circu6stantial. If <" is charged&ith the offence of assaulting , the testi6on* of %, that he sa& $ co66it the offence#constitutes direct evidence. The confession of $ that he is guilt*# is also direct evidence# but the testi6on* of ) that he sa& $ leaving the place &here the offence &as co66ittedor having the instru6ent of the offence in his possession# is circu6stantial evidence.Direct evidence is generall* considered stronger in probative force# but circu6stantialevidence is also considered ver* i6portant because it is 6ore difficult to fabricate aconvincing chain of circu6stantial evidence than to utter a direct lie. That is &h* it issaid# a hundred &itnesses 6a* lie# but circu6stances never lie>. 9al6ond observes thatcircu6stantial evidence of innocence 6a* &ell prevail over direct evidence of guilt# andcircu6stantial evidence of guilt 6a* be indefinitel* stronger than direct evidence of innocence.

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'a0uation o& E:idence

The la& of evidence co6prises/ (i rules for the 6easure6ent or deter6ination of the

probative force of evidenceG and (ii rules deter6ining the 6odes and conditions of the production of evidence. The first deals &ith the effect of evidence &hen produced# thesecond &ith the 6anner in &hich it is to be produced. hile the first is concerned &ithall for6s of evidence# 8udicial and e3tra'8udicial# the second is concerned &ith 8udicialevidence alone.

udicial proceedings are ai6ed at the discover* of truth. In this process the accurate6easure6ent of the evidential value of facts is of para6ount i6portance. udicialdiscretion in this area is guided b* the follo&ing rules.

+onc0usi:e %roo& or +onc0usi:e %resumptions

)onclusive proof 6eans a fact possessing probative force of such strength as not toad6it of effective contradiction. 9uch fact a6ounts to proof# irrespective of the e3istenceor non'e3istence of an* other facts# &hich 6a* possess probative force in the contrar*direction.

)onclusive presu6ptions pla*ed an i6portant part in the ad6inistration of 8usticeduring the earl* da*s# but their i6portance is di6inishing. Cne of the surviving 6a3i6sis res 'udicata pro veritate accipitur. It 6eans a 8udg6ent is conclusive evidence as bet&een the parties# and so6eti6es as against the entire &orld# of the 6attersad8udicated upon. This is a conclusive presu6ption# because the decisions of the court6ust be accepted as final and be*ond uestion# even though there is a possibilit* of thecourt 6aking 6istakes.

+onditiona0 or Re;utta;0e %resumptions

This is also kno&n as presu6ptive or conditional proof. It is a fact &hich a6ounts to proof onl* so long as there e3ists no other fact a6ounting to disproof. or instance# a person# &ho has not been heard of for seven *ears b* those &ho &ould naturall* haveheard of hi6 if he had been alive# is presu6ed to be dead. A negotiable instru6ent is presu6ed to have been given for value. A person accused of an* offence is presu6ed to be innocent. All these presu6ptions are rebuttable because it is possible to disprove the6.The* are not based on an* real esti6ate of probabilities. The purpose of conditional presu6ption is to place the burden of proof upon the part*. &ho is best able to bear it.Thus# a person accused of an offence Ss presu6ed to be innocentG but the prosecution6a* rebut this presu6ption &ith sufficient evidence to prove his guilt.

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Law of Procedure

(nsu&&icient E:idence

Insufficient evidence 6eans evidence &hich do not a6ount to proof# and raise no

presu6ption. The probative force of such evidence falls short of the reuired proof. It is#therefore# not per6issible for the court to act upon it. or instance# there is a rule of evidence that a >&ill> 6ust be attested b* at least t&o &itnesses. If there is onl* one&itness# la& &ill not accept it as valid because of insufficient evidence# even if the &ill6a* actuall* be genuine.

Exc0usi:e E:idence

E3clusive evidence denotes onl* the facts# &hich possess an* probative force in respectof the 6atter in issue. In this case# no other evidence is ad6issible. or instance# a &ritten

contract can generall* be proved onl* b* the production of the docu6ent &henever its production is possible. In the case of so6e special contracts such as a contract of guarantee# the* can be proved onl* b* &ritten evidence# and no verbal testi6on* isenough to establish their e3istence.

No E:idence

There are rules declaring that certain facts are not evidence# ie# the* are destitute of an* probative force at all. No purpose &ill be served b* producing such facts in court. or instance# hearsa* is generall* not acceptable as evidence. 9i6ilarl*# the bad character of an accused is not evidence that he is guilt* of an* particular offence.

%roduction o& E:idence

The second part of the la& of evidence deals &ith the process of adducing evidence. Itconsists of rules regulating the production of evidence# as for e3a6ple# the 6anner in&hich &itnesses are e3a6ined and cross'e3a6ined. It also includes several i6portantrules of e3clusion. 9uch rules of e3clusion are not based on an* esti6ate of the probativeforce of the evidence# but on considerations of e3pense# dela*# ve3ation# and publicinterest. Thus# a public official cannot be co6pelled to give evidence as to affairs of state#according to s !,; of the Indian Evidence Act !:2,. A la&*er cannot be co6pelled todisclose co66unications 6ade to hi6 b* his client# &hich is considered as privilegedco66unication. In both these cases# the evidence 6a* be relevant and 6a* have great probative force# but the* are e3cluded on the basis of other independent grounds.

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The rule that no person shall be co6pelled to be a &itness against hi6self is e6bodiedin the 6a3i6# nemo tenetur se ipsum accusare, ie# no 6an is to be his o&n accuser. Thisis kno&n as the rule against self'incri6ination# and is e6bodied in art ,%(; of the

)onstitution of India# &hich reads# >No person accused of an* offence shall be co6pelledto be a &itness against hi6self. 9ections !;, and !": of the Indian Evidence Act !:2,#confer li6ited protection against self'incri6ination to &itnesses in civil and cri6inalcases. Even a confession in order to be ad6issible 6ust be voluntar*. An* confessionobtained b* ph*sical or 6oral co6pulsion &ill be re8ected. This rule# &hich &as accepted b* English La&# has been criticised as e3tre6el* favourable to the guilt*# and goingagainst the ver* ob8ective of cri6inal procedure# &hich is to convict the guilt*. Thecontinental s*ste6 of cri6inal trial# &hich is kno&n as inuisitorial# per6its co6pulsor*e3a6ination of the accused. $entha6# &ho is highl* critical of English La& &hichrecognises the right to silence of the accused# is of the vie& that co6pulsor* e3a6inationof the accused 6ust be an essential feature of sound cri6inal procedure.

The uestion as to &hether a &itness is giving false testi6on*# has been posingdifficulties to the 8udges and 8uries right fro6 the beginning of the trial process.-istoricall*# the 6ethods of 8udicial co6bat# the ordeal# and the oath# &ere e6plo*ed to prevent false testi6on*. The first t&o have been abandoned# but the third still survives inour courtroo6s. $efore giving testi6on*# a 6an is asked to s&ear in the na6e of +od or sole6nl* affir6 that he &ill speak onl* the truth# but &hether the reuire6ent of oathserves an* useful purpose is doubtful. 9al6ond considers oath to be ineffective as acheck on false &itnesses# and opines that its retention is not likel* to increase respecteither for religion# or for the ad6inistration of 8ustice. -e rightl* suggests that the true preventive 6easure for false testi6on* is an efficient la& for its punish6ent as a cri6e.

In India# po&er is conferred on all courts and persons# having the authorit*# b* la& or consent of parties# to receive evidence# to ad6inister oaths under the Caths Act !151.The Act also reuires a &itness or interpreter to 6ake either an oath# or an affir6ation.urther# Indian Penal )ode I:5%# 6akes giving false evidence an offence called per8ur*in s !1!.

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Gainst hi6self no 6an is to icri6ination# &hich reads# itness against !:2,# confer in civiland be voluntar*. ! be re8ected# criticised as > ob8ective of lental s*ste6 co6pulsor* of English ie vie& that al feature of

n*# has been nning of the ordeal# and st t&o have o6s. $efore or sole6nl* uire6ent of S

oath to be ntion is not listration of re for false

having the ! ad6inister &itness or ndian Penal r* in s !1!.

i;0io$rap"y

Albro&# artin# The 5lobal !)e: State and Societ% 9e%ond $odernit%# !115.Allen# )7# Law in the $a"in)# seventh edn# !15". $a3i# Qpendra# $arx# Lawand Justice# !11;. $lackstone# Co''entaries I*$odenhei6er# Edgar# Jurisprudence# revised edn# !12".)ardoHo# The ature of the Judicial Process# !1,!.)otterrell# Roger# The Sociolo)% of Law: !n Introduction# second edn# !11,.David# Rene and $rierle*# ohn E)# $a&or Le)al S%ste's of the +orld Toda%#

!1:@. Davies# -o&ard and -olscroft# David# Jurisprudence: Texts andCo''entar%# !11!. Dh*ani# 9N# Funda'entals of Jurisprudence# second edn#!112. Dias# R# Jurisprudence# fifth edn# !1:@.Dice*# Law and Public (pinion in En)land 4urin) The ineteenth Centur%# !1!".D&orkin# Ronald# Ta"in) ,i)hts Seriousl% !122.rank# ero6e# Law and the $odern $ind# !1;%.ried6ann# # Le)al Theor%# !152.uller# Lon# The $oralit% of Law# !15;.+iddens# Anthon*# The ConseOuences of $odernit%# !11%.+riffith# A+# The Politics of the Judiciar%# !11!.+urvitch# +# Sociolo)% of Law# !1"2.

-ale# athe&# -istor% of the Co''on Law# !:,%.-art# -LA# The Concept of Law# !15!.-irsch# # Law and Econo'ics# !121.-ohfeld# N# Funda'ental Le)al Conceptions as applied in Judicial ,easonin)# !1,;.Ihering# Law as a $eans to an End# !1,".7air*s.D# The Politics of Law: ! Pro)ressive CritiOue# !11%.7eeton# The Ele'entar% Principles of Jurisprudence# !1"1.Laksh6inath# A# Precedent in the Indian Le)al S%ste'# second edn# ,%%@.



Llo%ds0Introduction on Jurisprudence# (ed ree6an# DA# si3th edn# !11".aha8an# D# Jurisprudence and Le)al Theor%# fifth edn# !1:2.arkb*# # Ele'ents of Law# !1%@.e )oubre*# -ilarie and hite# Nigel D# Textboo" on Jurisprudence# second edn# !111.

NoHick# Robert# !narch%# State and topia# !12". Y<*BY<> Paton +# ! Textboo" of

Jurisprudence# fourth edn# !12,.



i/lio#raphy

Pillai P9# Atchuthen# Jurisprudence and Le#al1heory, third edn# !1:@.Posner# Richard# Aconomic $nalysis of Law, third edn# !1:5.Ra&ls# ohn# $ 1heory of Justice, !12,.

Ra&ls# John, Justice as Fairness- $ :estatement, ,%%!.Renner# Kail, nstitutions of Private Law and their ocial Functions, !1"1.Riddall# +# Jurisprudence, second edn# !111.almondon Jurisprudence, (ed itHgerald# P# t&elfth edn# !155.9tone# ulius# Precedent and LawDynamics of %ommon Law <rowth, !1:@.9u6ner# )# :eadin# delo#ies, !121.9unstein# Rand Nussbau6# artha# $nimal :i#hts, ,%%".

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DR. N,K. Jayakumar of Jurisprudence.docx