JURISPRUDENCE
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Particulars |
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UNIT - I |
1 |
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2 |
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3 |
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4 |
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5 |
Legal Realism |
6 |
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7 |
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UNIT - II |
8 |
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9 |
Fact and Discretion |
10 |
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11 |
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12 |
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UNIT - III |
13 |
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14 |
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15 |
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UNIT - IV |
16 |
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17 |
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18 |
Meaning of rights in its wider sense |
19 |
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20 |
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21 |
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22 |
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23 |
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24 |
Minor |
25 |
Lunatic |
26 |
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UNIT - V |
27 |
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28 |
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29 |
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30 |
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31 |
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32 |
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33 |
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34 |
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35 |
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36 |
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37 |
UNIT - I
Salmond:
Salmond defines jurisprudence as the "Science of the first principles of the civil law".
He defines three kinds of jurisprudence:
1. Expository or systematic jurisprudence, which deals with the contents of an actual legal system, as existing at any time whether past or present.
2. Legal history, which is concerned with the legal system in its process of historical development.
3. The science of legislation, the purpose of which is to set forth law as it ought to be.
John Austin:
He defines "Philosophy of positive law". By the term positive law he meant "jus positivum", that is law laid down by a political superior for c commanding obedience from his subjects.
Holland:
According to his views 'the formal science of positive law'. And jurisprudence should only concern itself with the basic principles of concepts underlying any natural system of law. Holland defines positive law as a general rule of external human action enforced by a sovereign political authority. He calls jurisprudence as a formal science as it deals not with concrete details but only with the fundamentals principles underlying them.
H.L.A Hart:
He says jurisprudence embracing all moral and social principles and value and other non-legal elements which hitherto remained excluded from the purview of the study of the subject. While Austin considered command, sanction and sovereign as the three essential constituents of the nature of law which formed the science of jurisprudence.
Roscoe Pound: According to Pound, jurisprudence is the "Science of law using the term law in the judicial sense, as denoting the body of principles recognized or enforced by public and regular tribunals in the administration of justice".
1. Jurisprudence includes all concepts of human order and human conduct in State and Society.
2. Jurisprudence is both an intellectual and idealistic abstraction as well as behavioral study of man
in society.
3. It includes political, social, economic and cultural ideas.
4. It involves certain types of investigation into law, an investigation of as abstract, general and
theoretical nature which seeks to lay bare the essential principles of law and legal systems.
There is no unanimity of opinion regarding the scope of jurisprudence. Different authorises attribute different meanings varying premises to law and that causes difference of opinions with regard to the exact limits of the field covered by jurisprudence. It has been so defined as to cover moral and religious precepts also and that has created confusion.
There is a tendency to widen the scope of jurisprudence and at present we include what was previously considered to be beyond the province of jurisprudence. The present view is that the scope of jurisprudence cannot be circumscribed or regimented. It includes all concepts of human order and human conduct in state and society.
Anything that concerns order in the state and society falls under the domine of jurisprudence.
Approach to study of jurisprudence
The traditional classification of approach into analytical, historical, ethical and sociological has been approaches. The former proceeds from facts to generalizations and the letter start with a generalization in the light of which facts are examined.
The particular classification of approach derives its material exclusively from one system of law.
Significance and utility of jurisprudence
1. It is sometimes said that jurisprudence has no practical utility as it is an abstract and theoretical
subject.
2. There its own intrinsic interest likes other subjects of serious scholarship. Just as a mathematician
investigates the number theory not with the aim of seeing his findings put to practical use but by
reason of the fascination which it holds for him.
3. Jurisprudence also has practical value. Progress in science and mathematics has been largely due
to increasing generalization which has unified branches of study previously distinct, simplified the
task of both scientific and mathematician and enabled them to solve by one technique a whole
variety of different problems.
4. Jurisprudence also has an educational value. The logical analysis of legal concepts sharpens
logical technique of the lawyer.
The study of jurisprudence can so help to combat the lawyer's occupational view of formalism
which leads to excessive concentration legal rules for their own sake and disregarded of the social
function of law.
5. Jurisprudence is often said to be 'the eye of law". It is the grammar of law. It throws light on the
basic ideas and the fundamental principles of law.
6. A study of jurisprudence enlightens students and helps them in adjusting themselves in society
without causing injuries to the interests of other citizens.
1. Natural Law Theory:
It has occupied an important place in the realm of politics, law, religion and ethics from the earliest times. Blockstone observed 'the natural law being co-existent with mankind and emanating from God himself is superior to all other laws. It is binding over all the countries at all the times and no man-made law will be valid it is contrary to the law of nature'.
Meaning and Definition:
In general sense it is a law which is inherent in the nature of man and is independent of convention, legislation or any other institutional devices.
Dias and Hughes
He describe natural law as a law which derives its validity from its own inherent values, differentiated by its living and organics properties, from the law promulgated in advance by the State or its agencies.
Cohen
According to his views natural law is not a body of actual enacted or interpreted law enforce by courts, it is in fact a way of looking at things and a humanistic approach of judges and jurists.
a) Characteristics of natural law:
1. It is basically a prior method different from empirical method, the former, accepts things or
conclusions in relation to a subject as they are without any need or enquiry or observations while
empirical or a posterior approach tries to find out the causes and reasons in relation to the subject-
matter.
2. It symbolizes physical law of nature based on moral ideals which has universal applicability at all
places and times.
3. It has often been used either to defend a change or to maintain status quo according to needs and
requirements of the time.
4. The concept of 'Rule of law' in England and India and 'due process' in USA are essentially based
on natural law philosophy.
b) Historical evolution of natural law
Following stages are reasons for development of natural law theory
1. Ancient period
2. Medieval period
3. The period of Renaissance
4. Modern period
Ancient period
The following authors defines Natural law theory
Heraclitus
The concept of Natural Law was developed by Greek philosophers around 4th century he is the first Greek philosopher who pointed at the three main characteristic features of law of nature, namely
a. Destiny
b. Order
c. Reason
He stated that nature is not a scattered heap of things but there is definite relation between the things and a definite order and rhythm of events. According to him 'reason' is one of the essential elements of natural law. The instability and frequent changes in the early small city states of Greece made legal philosophers to think that law was meant to serve the interests of those who were in power and the people are innocently struggling for a better life.
Socrates:
He argued that like natural physical law, there is a natural moral law. It is because of the human insight that a man has the capacity to distinguish between good and bad and is able to appreciate the moral values. According to Socraties 'virtue is knowledge' and 'whatever is not virtuous is sin'. To him, justices are uniformly applicable to all the places but the notion of legal justice may differ from place to place depending on the existing statutory law and social conditions of the place. It is a variable content which changes with time and place.
Plato:
He carried further the natural law philosophy through his concept of ideal State which he termed as Republic. He contended that only intelligent and worthy person should be king. He argued that justice lies in ordaining man's life through reason and wisdom and motivating him to control his passion and desires.
Aristotle:
According to him, a man is a part of nature in two ways.
1. He is a creation of god,
2. He defined natural law as reason unaffected by desires. It embodies the basic principles of justice and morality which have universal validity independent of time and place. But he did not categorically state that the positive law which is contrary to principles of natural law is invalid.
Observations of Aristotle
1. It was the result of the views and ideas expressed by thinkers, philosophers or orators and not of
jurists or lawyers.
2. It was influenced by politically declared laws and tribal customs which were not differentiated in
social order of those times.
3. Enacted laws were in fact the declared customs the validity of which was not effected by their
indifference to natural law principles.
4. There was a growing consciousness that law was a product of wisdom and reason which conferred
it validity.
1.4 Medieval period
The period from 12th century to mid-fourteenth century is reckoned as the 'medieval age' in the European history. This period was dominated by the ecclesiastical doctrine which the Christen fathers propagated for establishing the superiority of Church over the State.
There are six fundamental principles:
1. Unity derived from god, involving one faith, one church and one empire
2. The supremacy of law both, divine and man-made, as a part of unity of universe.
3. the supporters of the theory believed that the institutions of slavery, property, state etc.
represented the evil desires because they are not the creation of nature, nevertheless, they are
necessary for preventing or limiting the vicious tendencies of men.
4. Law is the greatest binding force both for those whom govern and the governed.
5. The greatest problem before the medieval legal thinkers and philosophers was the correct
interpretation of law. They believed in two faces of the human activities, namely,
a. Worldly
b. Godly
6. As to the question about the exact source of legal authority in a developed society, the majority
view was that state and law were the gift of the people who agreed to subdue themselves to their
authority.
St. Thomas Aquinas
In his view, social organization and state are natural phenomenon. St. Aquinas pointed out that man can control his own destiny to a considerable extent but he is subject to certain basic impulses such as impulse of self-preservation, reproduction of his species, brining up children etc. for improving his future and attainment of perfection. He defined law as "an ordinance of reason for the common good made by him who has the care of the community and promulgated through reason".
Renaissances Period
In this period general awakening among the masses coupled with new discoveries of science during the fourteenth and fifteenth centuries shattered the foundation of established values. That apart, tremendous growth of trade and commerce in European countries created new classes in the society which needed greater protection from the state. The cumulative effect of these developments was that there was a general wave of nationalism and a demand for absolute sovereignty of the state and supremacy of the positive law overthrowing the dominance of the Church.
Hugo Grotius
He was a great statesman, philosopher and jurist of his time. He was a Dutch scholar and a staunch supporter of renaissance and reformation. He propounded the theory of functional natural law in his Laws of War and Peace and formulated the principles of international law which were equally applicable to all states both, during war and peace.
He is rightly considered as the founder of the modern international law as he deduced a number of principles which paved way for further growth of international law.
Thomas Hobbes
He propounded his theory of social contract relating to evolution of the state. He had himself participated in the civil war between king Charles First and British parliament and supported the former. Therefore, he obviously supported the absolute power and authority of the ruler.
According to Hobbes, prior to 'social contract', man lived in chaotic condition of constant fear. The life in the state of nature was "socially poor, nasty, brutish and short". Therefore in order to secure self-protection and avoid misery and pain, men voluntarily entered into contract and surrendered their freedom to some mightiest authority who could protect their lives and property.
John Locke
He stated that the life in state of nature was not as miserable and brutish as depicted by Hobbes; instead it was reasonably good and enjoyable except that the property was insecure. In order to ensure proper protection of property, man entered into the 'social contract' surrendering only a part of his right, and not all the rights as contemplated by Hobbesian theory. The natural rights of man such as right to life, liberty and property remained with him and only the right to maintain order and to enforce the law of nature was surrendered by him. The purpose of the state and law was to uphold and protect the natural rights of men.
Lock's idea of social contract was founded on new secular approach to natural law whereby the power of the government was conceded on trust by the people to the rulers and any infringement of the conduct by the rulers was treated as a breach of the people's fundamental natural rights which justified revolt against the government.
Locke pleaded for a constitutionally limited government. The nineteenth century doctrine of laissez faire was the result of individual's freedom in matters relating to economic activities which found support in Locke's theory.
Jean Rousseau
He says that social contract is not a historical fact as contemplated by Hobbes and Locke, but it is merely a hypothetical conception. Prior to the so called 'social contract', he was happy and there was equality among men. People united to preserve their rights of freedom and equality and for this purpose they surrendered their rights not to a single individual, therefore sovereign, but to the community as a whole which Rousseau termed as 'general will'. Therefore, state and law is the product of General Will. Of the people and not of 'reason' as proclaimed by the seventeenth century legal philosophers.
His natural law theory is confined to the freedom and liberty of the individual. For him, state, law, sovereignty, general will etc. are interchangeable terms. His theory is considered to be the forerunner of the modern jurisprudential thought and legal theory.
Immanuel Kant
He drew a distinction between natural rights and the acquired rights and recognized only the former which were necessary for the freedom of individual. He favoured separation of powers and pointed out that function of the state should be to protect the law. Kant's philosophy destroyed the foundation of natural law theories towards the end of 18th century which suffered a death blow at the hands of Bentham in the early nineteenth century because of his theory of hedonistic work entitled critique and reason.
Main principles of Kant's theory:
1. The categorical imperative excepts a man to act in such a way that he is guided by dictates of his
own conscience. Thus it is nothing more than a human right of self-determination.
2. The doctrine of 'authority of the will' which means an action emanating from reason but it does
not mean the freedom to do as one pleases.
1.5 Modern Period
Nineteenth century hostility towards Natural Law
The theory propounded by great French philosopher August Comte further struck a severe blow to the dwindling natural law theory. He denounced natural law theory as false, non-scientific and based on super natural beliefs.
The emerging trend of recognizing the importance of historical school which considered law as a product of people's conscience brought further decline of natural law. The roots of natural law lay in precepts like morality, justice, reason etc. which the positivists denounced as being unreal, unhistorical and non-science.
Twentieth century Revival of natural law
The nineteenth century legal theories which over-emphasized positivism failed to satisfy the aspirations of the people because on their refusal to accept morality and reason as elements of law. It was realized that exaggerated importance to historical approach giving undue significance to cultural and social characters of legal system had given rise to fascism in Italy and Nazism in Germany. The impact of materialism on the society and the changed socio-political conditions compelled the twentieth century legal thinkers to look for some value-oriented ideology which could prevent general moral degradation of the people.
Rudolf Stammler
He was a professor of roman law in various universities of Germany. For him, a just law was the highest expression of man's social life and aims at preservation of freedom of individuals. According to him, the two fundamental principles necessary for a just law were
1. principle of respect
2. the principle of community participation
With a view to distinguishing the new revived natural law from the old one, he called the former as 'natural law with variable content'. According to him, law of nature means 'just law' which harmonizes the purposes in the society. The purpose of law is not to protect the will of one but to unify the purposes of all.
Francois Geny
He was opposed to the empiricism of the historical and analytical schools. He believed that law has to be relativistic and not static or immutable like the nineteenth century natural law. He underlined the importance of judicial decisions in moulding a legal system.
The following factors to make the resultant rules serve the needs of the society:
1. The physical factors for the society's existence and environment
2. The evolution, history and traditions of the society
3. Such fundamental principles which promote sanctity of human life and freedom.
4. The ideals and inspirations of the society.
Lon Luvois Fuller
According to him, morality of duty includes basic requirements of social living whereas morality of aspiration means good life of excellence.
Ex: forbearing from indulging into extra-material sex activities. Morality of duty can be generally enforced by law but not the morality of aspiration.
Following requirements are there:
1. there should be definite rules
2. These rules must be well published
3. The rules should be no abuse of retrospective legislation
4. The rules must be easily understandable
5. The rules must be practicable and must not require a person to do something which is beyond
his power or capacity
6. The rules must not be contradictory or inconsistent with any other existing law
7. The rules should not be subjected to frequent changes
8. There must be congruence between the rules promulgated and their actual administration.
Critical analysis of natural law theory
1. The moral proposition may not always necessarily conform to the needs of the society
2. The concept of morality is a varying content changing from place to place; therefore, it would be
futile to think of universal applicability of law.
3. The rules of morality embodied in natural law are not amenable to changes but the legal rules do
need a change with the changing needs of the society.
4. Legal disputes may be settled by law courts but the disputes relating to morality and law of nature
cannot be subjected to judicial scrutiny, and even if they are challenged in a court of law, the
correctness of the verdict may always be questioned since it is based on subjective discretion of
the judge.
5. Though apparently law and morality may appear to be in conflict with each other, the fact remains
that in order to decide whether a particular law is 'just' and 'unjust', it has to be tested on the basis
of the principles of morality.
Realistic school
American jurists notably Holmes, Cardozo and Gray raised their voice against legal conceptualism and stressed on the study of law as it actually operates and functions. They were called realists and their legal approach has been named as Realist School of Jurisprudence. Rouscue pound has defined realism as, 'fidelity to nature, accurate recording of things as they are, as contrasted with things as they are imaginated to be, or wishes to be or as one feels they ought to be'.
Jerome Frank has stated' law is what the court has decided in respect of any particular set of facts, prior to such a decision, the opinion of lawyers is only a guess as to what the court so decides by its judicial pronouncement.
Basic features of Realist School
1. Realists believe that there can be no certainty about law as its predictability depends upon the set
of facts which are before the court for decision.
2. They do not support formal, logical and conceptual approach to law because the court will
deciding a case reaches its decisions on 'emotive' rather than logical ground.
3. They lay greater stress on psychological approach to the proper understanding of law as it is
concerned with human behaviour and convictions of the lawyers and judges.
4. Realists are opposed to the value of legal terminology, for they consider it as tacit method of
suppressing uncertainty of law.
5. The Realist school prefers to evaluate any part of law in terms of its effects.
Karl Llewellyn:
He confessed that there is nothing like Realist school, instead it is a particular approach of a group of thinkers belonging to the sociological jurisprudence. He considered law as means to a social end and suggested evaluation of law in terms of its actual effects without giving much importance to formal conception rules. According to him, the traditional outlook that become outdated and now the focal point of attention should be the behaviour and thinking of the deciding judges or the court.
He says that there is large measure of predictability in case law attributable to the general "craft" of decision making. He placed reliance on insight and wisdom of the judiciary which enables Judges to achieve objective criteria so as to arrive at the appropriate legal solutions.
Jerome Frank:
Frank explained his views about realistic approach to jurisprudence in his classic work entitled, law and the modern mind. He exploded the myth that law is continuous, uniform, certain and invariable and asserted that the Judges do not make law but instead, they discover it.
According to him, the individual decision of the judge is law par excellent. He reiterated that law consists of decisions and the personal convictions, likes and dislikes emotions. The temperament of the judge has an important bearing on the mechanism of law. thus Frank made' fact-finding' by the court as the central theme of his realism in which the personality of the judge and his past experience play a dominant role in moulding the law and giving it a concrete shape.
Frank emphasized that law is not merely a collection of abstract rules and that legal uncertainty is inherent in it. Therefore mere technical legal analysis is not enough for understanding as to how law works.
Thurman Wesley Arnold:
He treated politics, economics, law and other disciplines relating to social sciences as indispensable le social institutions based on common values such as habits, attitudes, traditions creed etc. He stated that the rule of law is best preserved by coordinating the various conflicting ideologies.
Axel Hagerstrom:
He is considered to be the father of the Realist school of jurisprudence in Sweden. He rejected the notions of right-duty relationship and the theory of legal obligations because they do not have any objective basis. For him, these are merely psychological notions. He also denounced the notions of good or bad as they simply represent the subjective attitude or approbation or disapprobation towards certain facts or situations. He emphatically stated that idealism in law a matter of personal evaluation which cannot be subjected to any scientific process of examination.
K.Olivecreona:
According to him, law is nothing but a 'set of social facts'. He rejected the view that laws are a command or an expression of the will of the state and argued that they are independent imperatives issued by constitutional agencies of the state from time to time and they operate in the mind of the Judges while reaching a particular decision.
For him, there is no such thing as the binding force of law; it is a myth.
Alf Ross:
In his view, laws are the legal norms in the form of directives addressed to the courts. These norms of conduct, therefore, laws may be of two types:
1. Norms of conduct which deals with behavioural aspect of law.
2. Norms of competence or procedure which prescribe the mode of procedure to be followed for determining the norms of the conduct.
V. Lundstedt:
He emphatically stated that law is not founded on the notion of justice but it is based on social pressure and needs of the society. The most striking feature of his realism is assertion that law at any time, place and society is determined by 'social welfare' which is the guiding motive for legal activities. Therefore judges should think in terms of social welfare and in terms of rights and duties.
Criticisms
1. Realistic school have completely overlooked the importance of rules and legal principles and
treated law as an assemblage of unconnected court decisions.
2. Their perception of law rests upon the subjective fantacies and life experience of the Judge who is
deciding the case or dispute.
3. This is indeed over estimating the role of Judges in formulation of the laws.
4. There cannot be certainty and definiteness about the law.
5. It has exaggerated the role of human factor in judicial decisions.
6. It is not correct to say that judicial pronouncements are the outcome of personally and behavioral
of the judge.
Savigny:
The forerunners of Savigny, notably, Schelling and Hugo had rejected natural law theory which believed that law is based on an abstract principle of human reason. they supported the view that law is a historical perception which evolves according to customs.
Savigny's Life and Works:
He was born at Frankfurt in 1779. He was educated at the universities of Marburg and Gottingen and was a professor of Civil in the University of Murburg from 1801 to 1840. He was then appointed as a Professor at the newly formed University of Berlin.He published history of Roman law in Middle Ages, in six volumes and also wrote System of Modern Roman law.
Important points
1. Law develops like languages:
Savigny pointed out that law has a national character and it develops like languages and binds people into one whole because of their common faiths, beliefs and convictions. According to him, law grows with the growth of the society and gains its strength from the society itself and finally it withers away as the nation loses its nationality.
2. Early development of law is spontaneous; thereafter jurists develop it:
He stated that in the earliest stages law develops spontaneously according to the internal needs of the community but after the community reaches a certain level of civilization, the different kinds of national activities, hitherto developing as a whole, bifurcate in different branches to be taken up for further study by specialists such as jurists, linguists, anthropologists, scientists etc.
3. Savigny was opposed to codification of German law:
He was not totally against codification of laws. He opposed the codification of the German law on the French pattern at that time because Germany was then divided into several smaller states and its law was primitive, immature and lacked uniformity. he pointed out that German law could be codified at a later stage when the unification of Germany takes place and there is one law and one language throughout the state.
4. Law is a continuous and unbreakable process:
Tracing the evolution of law from Volksgeist, namely, people's sprit or consciousness.Savigny considered its growth as a continuous and unbreakable process bound by common cultural traditions and beliefs. It has its roots in the historical processes which should constitute the subject of study for the jurists.
5. Admiration for Roman law:
While emphasizing Volksgeist therefore people's spirit or as the essence of law, Savigny justified adoption of Roman law in the texture of German law which was more or less diffused in it. He, located Volksgeist in the Romanized German customary law and considered roman law as an inevitable tool for the development of unified system of law in Germany.
The main tends of the Savigny's theory:
1. Law has an unconscious organic growth; it is neither found nor artificially made.
2. The basis of law is to be found in volksgeist which means people's consciousness or will, and
consists of traditions, customs, habits, practices and beliefs of the people.
3. Law is not universal in nature but like language, it varies with people, time and needs of the
community.
4. Since law should always conform to popular consciousness therefore Volksgeist, custom not only
precedes legislation but is superior to it.
5. With the growing complexity of law, the popular consciousness is represented by lawyers who are
nothing but the mouthpiece of the popular consciousness.
Criticisms of Savigny's theory of law
1. He emphasized the national character of law but at the same time suggested a model by which
Roman law could be adopted and accepted as the law of Germany.
2. It is often alleged that Savigny's theory of law is negative, obscure and suffers from narrow
sectarian outlook.
3. Savigny's assertion that popular consciousness is the sole source of law is not wholly true.
4. Savigny's views that customs are always based on the popular consciousness is also not
acceptable. Many customs such as slavery, Bonded labour etc. originated to accomplish the
selfish interests of those who were in power.
5. Savigny;s Volksgeist helped many nations to pervert it for promoting their own ideologies. Thus
Nazi twisted it by giving a racial colour, the Marxists used it giving economic interpretation of
history and Italy used it to justify fascism.
Henry Maine
Maine's life and work
He took his education in the University of Cambridge and joined as Professor of Civil Law in that University in 1847. He worked in that capacity until 1854.He studied ancient law of India and drew a comparison between there Indian law and the laws of western societies.
Maine's Views on Development of Law
He through his comparative researchers came to a conclusion that the development of law and other social institutions has been more or less on an identical pattern in almost all the ancient societies belonging to Hindu, Roman, Anglo-Saxon, Hebrew and Germanic communities. Most of these communities are founded on patriarchal pattern wherein the eldest male parent called the parent families dominated the entire family including all its male and female members.
According to Maine pater-familiar constituted the lowest unit of primitive communities. View families taken together formed the Family-Group which consisted of union families. An aggregation of families constituted Gens which in turn led to the formalities of tribes.
Four stages of development of law
1. Divine Law:
In the beginning law originated from themes, which means the goddess of justice. It was generally believed that while pronouncing judgments the king was acting under the divine inspiration of Goddess of justice. Themestes were the awards pronounced by goddess of Justice to be executed by the king as a custodian of justice under divine inspiration.
2. Customary Law:
The recurring application of judgments let to uniform practice which crystallized into customary law to be followed in the primitive societies. The importance of customs as a source of law has been underlined by Sir Henry Maine when he observed that custom is to society what law is to state.
3. Priestly class as a sole repository of customary law:
The authority of the king to enforce and execute law was usurped by the priestly class who claimed themselves to be learned in law as well as religion. The priestly class memorized the rules of customary law because the art of writing had not developed till then.
4. Codification:
The era of codification marks the fourth and perhaps the last stage of development of law. With the discovery of the art of writing, a class of learned men and jurists came forward to denounce the authority of priest as law-givers.
Law's development through Legal fiction, Equity, and legislation
1. Legal fictions:
It change the law according to the changing needs of the society without, making change in the letter of law, Maine defines legal fiction as "as any assumption which conceals or effects to conceal the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified".
According to Julius Stone fictions are the "swaddling clothes" of legal change. They are used for overcoming the rigidity of law.
According to Sir Henry Maine, fiction is a device to extent new rules to old situations, to new circumstances with a minimum of intellectual effect. In his opinion, a legal fiction is a very useful agency of development of law to suit intricate and knotty situations.
2. Equity:
It consists of those principles which appeal to the conscience of human being. They sought to remove the defects existing in the common law in England. The rigidity of common law judges forced people to approach the King for justice. The king entrusted the task of administration of justice to Chancellor who also the Head of the exchequer. Though not learned in law, the chancellor helped in administration of civil justice through the principles of justice, equity and good conscience.
3. Legislation:
It is the most effective method of law making. It is considered to be the most systematic and direct method of introducing reforms through new laws. The power of the legislature to make laws has been widely accepted by the courts and the people all over the world.
Legislation is the most powerful instrument of legal reform, and so great is its superiority over method of evolution of law that the tendency of advancing civilization is to acknowledge its exclusive claim, and to discard the other sources as relics of infancy of law.
Sociological school of jurisprudence has emerged as a result of synthesis of various jurists thought. The exponent of this school considered law as a social phenomenon.
The main characteristic features of sociological jurisprudence
1. They exponents of sociological school lay greater stress on functional aspects of law rather than
its abstract contents.
2. They consider law as a social institution essentially inter-linked with other disciplines bearing
direct impact on the society and uphold the view that law is designed on the basis of human
experience in order to meet the needs of the society.
3. Sociological school completely discards the abstract notions of analytical positivism which lay
over-emphasis on common or power aspect of law as also the dead weight of past culture and
traditions which constituted the main theme of the historical jurisprudence.
4. It differs in their approach to the perception of law.
Development stages of Sociological jurisprudence
1. Empirical Scientific approach to law:
August Compte is said to be the founder of the sociological jurisprudence who made a beginning to what has been known as scientific positivism. His approach to law was empirical based on experience and observation. Thus he rejected metaphysical methods of the study of law which was commonly restored to by his predecessors belonging to the philosophical and historical school.
2. The impact of Darwinian Evolutionary theory:
The next stage in the development of sociological jurisprudence has been called as the 'biological stage' because of the influence of the Darwin's evolutionary theory. Herbert Spencer explained social phenomenon as a biological process adopting itself to the changing needs of the society.
He asserted that law must evolve and adapt itself to the changing needs of the progressive society.
3. Impact of Psychological theories:
According to Dean Roscoe Pound the third stage of the development of sociological school is the psychological stage. It was a period of later half of the 19th century and the first quarter of the 20th century during which psychology had greatly influence other social sciences including the law.
4. Unification Stage:
The last stage of development of sociological jurisprudence consists of unification of sociological method with other social sciences. It was realized that different social sciences represent different aspects of human society. Therefore, they are supplementary and complementary to each other and as such law also cannot be detached from various socio-economic aspects of the society since it is an effective means of social control in the society.
This theory was propounded by Auguste Compte, Herbert Spencer, Montesque, Rudolph von Ihring etc.
Rudolph Von Ihring
He was educated at Berlin in Germany. He was professor at Basel, Rostock, Keil, Vienna, Strausburg and Gottingen. His "Spirit of law" was published in four volumes during 1852-1865. Later, he published his principal work which was translated as "Law as Means to an End" in 1913.In this work he criticized the notion of individual freedom and liberty as advocated by Kant and Benthan as they had divorced legal theory from social realities.
The main tends of this school are as follows:
1. Law is result of constant struggle:
He pointed out that the origin of law is to be found in social struggles. He accepted that the role of law is to harmonies conflicting interest of individuals for the purpose of protection of the interest of the society as a whole. He rejected the philosophical view that law evolves spontaneously like language and thus he gave importance to 'living law' which was later developed by his disciple Eugen Ehrlich.
2. Law is to serve a social purpose:
He considered law as a means to an end. The ultimate end of law is social purpose and not the individual purpose or interest.
3. Law alone is not a means to control the society:
He made it clear that law alone was -not the means to control the social organism. There are some other conditions such h as climate, topography etc. for which law need not intervene.
Criticism against Ihring's theory
1. The fiction of law is to reconcile the conflicting interests; he is pointing out the problem, but
does not come out with any solution to it.
2. The purpose of the theory is that law in fact protects 'will' and not the 'purpose'.
Eugen Ehrlich
He was a professor of Roman law at the University of Czernowitz in Austria. He believed in spontaneous evolution of the law but he did not hang on the past but conceived law in the context of existing society and thus evolved his theory of 'living law'.
According to him, the institutions of marriage, domestic life, inheritance, possession, contract etc. govern the society through 'living law' which dominates the human life. His 'living law' is the law which dominates social life even though it has not been promulgated in the form of enactment or decision of the state.
Enrlich's contribution:
Enrlich's theory of living law is unrealistic, his contribution to jurisprudence cannot6 be dismissed outright. He earnestly strived for the cause of social justice and 'justice' according to him has not an abstract concept but had a relative significance changing with time and place. He concentrated his attention on the functioning of law which was not embedded in the code or the court's decision but which did operate and affect the social life in a community.
He made an exhaustive study of the variety of customs, traditions, habits and rules of succession and family relations of nearly a dozen of tribal inhabitants.
Criticism against the theory of Enrlich
1. His theory for extending the scope of sociology of law and its relation to other social sciences too
far and even to limit of absurdity.
2. He makes no distinction between legal norm and other social norms and confuses between the
two.
3. He overlooks the fact that many a times formal law influences and even changes the prevalent
practices of the society in the interest of the community as a whole.
Leon Duguit:
He was a French jurist who made substantial contribution to the sociological jurisprudence in early 20th century. He was a professor of Constitutional law at the University of Bordeaux for many years. During his time individualism was crumbling in Europe giving way to collectivism in which state's role extended to public service.
Doctrine of Social solidarity:
Duguist's theory of social solidarity was based on the fact that interdependence of man is the essence of society. Every individual has his existence owing to his membership of the society. Each individual cannot procure the necessities of life by himself. Therefore each in his turn has to depend on other for his needs. He rejected the traditional notions of rights, sovereign, state, public and private law, legal personality as fiction and unreal because they were not based on social reality.
Theory of Justice:
He defines justice in terms of fulfillment of social needs and obligations. Law must seek to promote social solidarity so as to attain maximum good of the society as a whole.
Duguit's views about the state and its functions:
He attacked the sovereignty and held that state is in no way different from other human organizations and its activities should be judged from the point of vies of social solidarity and common good of society. He therefore favoured minimization of state functions and decentralization of state power. He contended that legislators do not make law but merely give expression to judicial norms formulated by the consciousness of the social group.
Duguit's legal philosophy:
Following points are relating to Legal philosophy of Duguit's theory:
1. He rejects the doctrine of state sovereignty and considers state merely as an expression of the will
of the individuals who govern.
2. The unity of state is not consistent with the collective associations
3. Law is only an embodiment of duties which an individual is supposed to perform as a part and
parcel of the social organization for furtherance of social solidarity
4. The sole emphasis of Duguit is on interdependence of men as a member of the community.
5. He contemplates gradual withering away of the state and its replacement by group of associations
which are engaged in the service of society.
Criticism against Duguit's theory
1. It excludes all metaphysical considerations from law and it is itself based on the ideal of natural
law.
2. His definition of law is also confusing as in laying down the fundamentals to which the law must
conform, he confuses todistinguish between what the law is and what it ought through the door
and let it come in by window.
3. He is vagueness of his doctrine of social solidarity. After all, who is to decide whether a particular
act or rule is in furtherance of social solidarity or not?
4. He overlooked the growing role of state in modern times.
Roscoe Pound:
He was born in Linclon Nearasks in 1870. He was an auxiliary Judge of the Supreme Court of Nebrasks for a short period of two years during 1901-1903. Thereafter, he worked as a Dean of the Law School at Nebraska. He also served as a professor of Jurisprudence in Harward University and was the Dean of its law school.
Important points of the theory:
1. Emphasis on functional aspect of law:
His approach to sociological jurisprudence was different in the sense that he attempted to cover social-life as a whole unlike his predecessors who considered law as the main subject of study and society is merely subsidiary to it.
He laid greater stress on functional aspect of law. He defined law as containing "the rules, principles, conceptions and standards of conduct and decision as also the precepts and doctrines of professional rules of art".
2. Pound's theory of social engineering:
He conceived law as a 'social engineering', its main task being to accelerate the process of social ordering by making all possible efforts to avoid conflicts of interest of individuals in the society.
He enumerated the various interests which the law should seek to protect and classified them into three broad categories:
a. Private Interest
b. Public interest
c. Social Interest
a. Private Interest:
The public interest includes
1. Individual's interests of personality, namely, interests of physical integrity, reputation, freedom of volition and freedom of conscience.
2. The interests of domestic relations of persons such as husband and wife, parent and children, martial life as also the individual's private interests.
3. The interest of the property, succession, testamentary disposition, freedom of contractual relations, association etc.
b. Public Interests
The main public interests are
1. Interests in the preservation of the state as such
2. State as a guardian of social interests such as administration of trusts, charitable endowments,
protection of natural environment, territorial waters, sea-shores, regulation of public employment
and so on.
c. Social Interests:
Social interests are
1. Interests in the preservation of peace, general health, security of transactions etc.
2. Preserving social institutions such as religion, political and economic institutions etc.
3. Interests preserving general morals by p[prohibiting transactions which are against morality such
as prostitution, drunkenness, gambling etc.
4. Interests in conservation of social resources.
3. Jural postulates of Roscoe Pound:
There are five jural postulates, those are:
1. Jural postulates I :
In civilized society men must be able to assume that others will commit no international aggression upon them.
2. Jural II:
In civilized society men must be able to assume that they may control for beneficial purposes what they have discovered and appropriated to their own use
3. Jural postulates III:
In civilized society men must be able to assume that those with whom they deal as a member of the society will act in good faith.
4. Jural postulates IV:
In civilized society men must be able to assume that those who engage in some course of conduct will act due care not to cast an unreasonable risk of injury upon others.
5. Jural postulates V:
In civilized society men must be able to assume that others who maintain things or employ agencies, harmless in the sphere of their use but harmful in their normal actions elsewhere and having a natural tendency to cross the boundaries of their proper use will restrain them and keep them within their proper bounds.
Criticism against Pound theory
1. His theory of social engineering has been criticized for the use of the term engineering, he
emphasis on 'engineering' ignores the fact that law evolves and develops in the society according
to social needs and wants for which law may either have approbation or disapprobation.
2. It confines the interpretation of wants and desire to only material welfare of individual's life
completely ignoring the personal freedoms which are equally important for a happy social living.
3. Theory of interest that it has no significance in a pluralistic society where there are linguistic,
ethnic, and religious minorities having diverse interests.
4. There is a danger of an implicit grading of interests as either individual, public, or social because
these are changing conceptions as has been accepted by pound him self.
UNIT - II
The concept of justice is as old origin and growth of human society itself. The social nature of man demands that he must live peacefully in society.
Salmond:
It is thought the instrumentality of law that justice is administrated by the state.
Roscoe Pound
He says law is a body of principles recognized and enforced by state for administration of justice.
Black stone: According to Black stone "justice is a reservoir from where the concept of right, duty and equality evolves.
The concept of justice became more conspicuous with the growth of state which ensures justice to it people through the instrumentally of law. The essence of legal justice lies in ensuring uniformity and certainty of law and at the same time ensuring that rights and duties are duly respected by the people.
Justice is of two kinds; there is criminal and civil justice.
1. Criminal justice
The main purpose of administration of criminal justice is to punish the offender. It is the state which punishes the criminals. Punishment necessarily implies some kind of pain inflicted upon the offender loss caused to him for his criminal act which may either be intended to deter him from repeating the offence or may be an expression of societies disapprobation for his anti-social conduct or it may also be directed to reform and regenerate him and at the time protect the society from law breakers.
Theories of punishments:
There are five kinds of punishments
1. Deterrent theory:
The main object of punishment is to make commission of an offence anti-bargain for the offender and deter others from committing crimes. As Salmand says that punishment is before all things deterrent and the chief aim of law of crime is to make the evil-doer an example and a warning to all that are like minded with him.
This end of criminal justice is achieved by inflicting sever punishment on the offenders. The deterrent theory, therefore, justifies exemplary punishment because it not only dissuades the offender from repeating the crime but also deters others from indulging into such criminal activities.
Deterrent theory of punishment was supported by Manu, the great law-commentators of Ancient India. He treated punishment are danda,as the source of righteousness because people are refrained from committing wrongful acts through the fear of punishment.
Criticism of the Deterrent theory:
It has proved to be ineffective in restricting crimes.
The rigors of deterrent punishment acts have a sufficient warning to the offenders and also to others but it invariably fails in case of hardened criminals. The ineffectiveness of deterrent punishment is further evinced by the fact that quiet a large number of hardened criminals return to prison soon after their release.
They seem so much use to prison life that they have lost all interest in leading a normal life in society.
Thus the object underling deterrent is unquestionably defeated.
2. Retributive theory:
According to this theory evil should be return for evil without any regard to consequence. The theory is based on the rule of natural justice which is expressed be the maxim "an I for an I and a tooth for a tooth". The theory, therefore, emphasizes that pain to be inflicted on the offender by way of punishment must outweigh the pleasure derived by him from his criminal act.
Sir Walter Moberly says that the "drama of wrong doing and its retribution as indeed been an unending fascination for the human mind".
The theory of retribution owes its origin in the crude animal instinct of individual or group to retaliate when hurt and, therefore, its approach to offender is vindictive and out of tune with the modern reformative concept of punishment.
Closely connected with the idea of retribution is the notion of expiation which means blotting out the guilt by suffering an appropriate punishment. This, in other words means, that guilt plus punishment is equal to innocence. Salmand says that revenge is the right of the injured person. The penalty of wrong doing is there debt which the offender owes to his victim, and when the punishment has been endured, the debt is paid, the liability extinguished, innocence is substitute for guilt, and vinculum juries forged by crime is dissolved. The object of true redress is to substitute justice for injustice.
3. Preventive theory:
The preventive theory is founded on the idea of preventing repetition of crime by disabling the offender though measures such as imprisonment, forfeiture, death punishment, suspension of licenses etc. The preventive theory seeks to prevent the prisoner from crime by disabling him. This theory does not lay much emphasis on the motive of the wrongdoer but seeks tot take away his physical power to commit the offence.
Committing on preventive theory of punishment Fichte writes, "The end of all penal laws is that they are not to be applied. Thus when a land owner puts a notice "trespassers will be prosecuted", he does not want an actual trespasser and to have the trouble and expenses of setting the law in motion against him.
4. Reformative theory:
This theory of punishment emphasizes on reformation of offenders through the method of individualization. It is based on the humanistic principle that even if an offender commits a crime, he does not cease to be a human being.
This theory shows a radical departure from the earlier theories and seeks to bring about a positive change in the attitude of the offender so as to rehabilitate him as a law-abiding member of society. Thus punishment is used as a measure to reclaim the offender and not to torture him. The theory condemns all kinds of corporeal punishments. The major thrust of the reformist theory is rehabilitation of inmates in penal institutions so that they are transformed into good citizens. It focuses greater attention on humanly treatment of prisoners inside the prison. The reformative theory suggests that punishment is only justifiable if it looks to the future and not to the past. It should not be regarded "as opening an opening a new one". Thus the advocates of this theory justify but to bring about a change in their mental attitude through effective measures of reformation during the term of their sentence.
The authors of the American study also criticized reformative theory saying, "it never commanded more than a lip service from most f its more powerful adherents. The prison administration who embraced rehabilitative idea, have done so because it increased their power over inmates.
Forms of punishments
There are various kinds of or forms of punishments.
1. Corporal punishment
Flogging:
In India, whipping was recognized as a mode of punishment under the whipping Act, 1864which was repealed and replaced by a similar act in 1909and finally abolished in1955.
Some of them used straps and whips with a single lash while others used short pieces of rubber-hose.
Mutilation
It was also a common form of corporal punishment. It was known to have been in practice in ancient India during Hindu period.
The justification advanced in support of mutilation was that it served as an effective measure of deterrence and prevention.
Branding
Branding as a mode of punishment was commonly used in oriental and classical societies. Roman criminal law supported this mode of punishment and criminals were branded with appropriate mark on their forehead so that they could be easily identified and permanently subjected to public ridicule.
Chaining
Chaining the offenders together was also commonly used as mode of punishment. Their liberty and mobility was thus completely restricted.
Pillory
Pillory was yet another form of cruel and barbaric corporal punishment which was in practice till early19th century. This type of punishment was also called poetic punishment though it was more often used in fiction then in poetry. The offender was brought in public place for the execution of the sentence.
Fines and confiscation of property
The offences which were not serious in nature were punished with fine. This mode of punishment was especially used for offences involving breach of traffic rules and revenue laws.
Deportation
The deportation of criminals is also called banishment. Incorrigible and hardened criminals were generally deported to far-off places with a view to eliminating them from community.
Imprisonment
Imprisonment represents a most simple and common form of punishment which is used all around the world. It is an effective method of incapacitating the offenders. It also ensures temporary elimination of criminals apart from having a deterrent effect.
That the appellant a perusal of the trial courts judgment showed that the sentence of imprisonment till raising the court was awarded to the accused for the following reasons: was a senior I.A.S officer and held of different high posts which showed that he was a respectable person.
That he had a number of dependents in the family.
That there was certainty of appellant's losing his job and recurring him to earn a living for himself and his family members.
That this was the first offence committed by him
The specter of incident was hanging over his head for about six long years.
Solitary confinement
This punishment may be considered as an aggravated form of imprisonment where convicts are confined in society prison-cells without any contract with their fellow-prisoners.
It seeks to inflict pain and mental torture on the offenders so that he is deterred from indulging into criminal behaviour in future. Needless to say that monotony involved in this kind of punishment as a disastrous effect on criminals and many of them become lunatics because of the pangs isolation and separation under the sentence.
Capital punishment
The capital punishments are Darers and dangerous offenders. It has both deterrent and preventive effect. During the later-half of the nineteenth century, public opinion mobilized against the retention of capital punishment.
Civil Justice
The administration of civil justice consists in the enforcement of rights as opposed to the punishment for wrongs. The right to be enforced may either be a primary or a sanctioning right.
1. Primary rights:
Primary rights are those rights which do not have the violation of other right. A sanctioning right is one which arises out of violation of other right. It is also called a remedial right because it comes into existence consequent to violation of a private right. Right to fulfillment of a contract is a primary right but right to recover damages for its breach in is a sanctioning right.
The enforcement of primary rights is called specific performance where in the defendant is compelled to do the very act which has been agreed upon to be done.
Ex: Where by a defendant is compelled to pay a debt or to perform a contract or restore land or property wrongfully taken or detained. It may also include refraining the defendant from committing or continuing nuisance or trespass or to repay money received by mistake or obtain by fraud.
Sanctioning right:
The right to receive pecuniary compensation of damages from the wrongdoer may be divided in to two kinds.
1. Restitution
2. Penal redress
These two are the same in there nature and operation, but with reference to wrongdoer therefore defendant, they are very deferent.
Penal and remedial proceedings
All legal proceeding before courts of law may be classified into five distinct heads namely:
1. Action for specific enforcement
2. Action for specific restitution
3. Action for penal redress
4. Penal sanctions
5. Criminal prosecution
6. The first two may be called as remedial proceedings.
Secondary functions of the court
The primary function of a court of law is administration of civil and criminal justice which includes enforcement of rights and punishment of wrongdoers. There are certain other secondary functions also which the courts are required to perform them include:
Adjudication of the claims of citizens against the state through petition of right.Declaration of the rights of individuals by declaratory proceedings. This may include declaration of nullity of marriage, legitimacy, interpretation of wills, advice to executor's etc. Administration of trust, insolvency, liquidation proceedings etc.Title of right as created by decrees.
Ex: decree of divorce or judicial separation, adjudication of bankruptcy, grant of letters of administration, appointment or removal of trustees etc. in such cases the judgment of the court operates as a title of right and not as remedy of a wrong.
UNIT - III
Dr. Allen defines custom as the uniformity of habits or conduct of people under like circumstances.
Herbert Spencer:
He says that before any definite agency for social control is developed their exists a control arising partly from the public opinion of the living and more largely from public opinion of the dead.
Salmand:
He say that custom embodies those principles as are acknowledged and approved, not by the power of the state, but by public opinion of the society at large.
Keeton:
He says custom as those rules of human action, established by usage and regarded as legally binding by those to whom the rules applicable, which are adopted politically society as a whole or by some part of it.
Kinds of custom
There are two kinds of custom, namely
1. Conventional custom:
A conventional custom is also called usage. It is an established practice whose authority is conditional on its acceptance and incorporation in the agreement between the parties bound by it. A conventional custom is legally binding not because of any legal authority independently possessed by it, but because it has been expressly or impliedly incorporation in a contract between the parties concerned.
The development of conventional customs essentially involves three stages.
It must be so well established as to have attained the notoriety of a usage. The existence of a usage must be proved on the basis of evidence.
Conventional custom gets recognition through a judicial decision. At this stage it assumes custom is finally accepted as a statutory law after its codification.
A conventional custom may be divided into two namely
1. Local
2. National
Conditions
It should be old enough to be in the knowledge of the people in general.
No specific period is, however, prescribed for a custom to be treated as old enough for this purpose. Even a relatively new conventional custom may also get legal recognition provided it has been well established in the community.
Conventional custom shall be recognized as law so long as it is not contrary to the general law of the country. It should be consistent with statute law.
It should be reasonable. Whether a particular custom is reasonable or not, shall depend on the discretion of the court.
A conventional custom need not necessarily be confined to a particular area. It may relate to any trade or commercial dealing which may be national or even international.
A conventional custom or usage which is contrary to any express condition laid down in a contract shall not be enforceable law.
2. Legal Custom
Legal customs are those rich or operative per se as binding rules of law independent of any agreement between the parties. Legal customs are of two kinds:
a. Local Custom
b. General custom
a. Local custom:
A local custom is that which prevails is in some defined locality whereas a general custom is operative through out the realm. When the word custom is used simplicities it refers to local custom.
Halsbury defined local custom as "a particular rule which has existed actually or presumptively from time immemorial, and has obtained the force of law in a particular locality, although can authoritative provided it conforms to the norms of justice and public utility.
Consistency:
A custom to be valid must be in conformity with statute law. In other words, it should not be contrary to an act of parliament. A custom should necessarily yield where it conflicts with a statutory law Compulsory observance to or not consistent with the common law of the realm.
b. General custom:
A general custom prevails thought out the realm and constitutes one of the sources of the common law of the country. A general Custom is usually practiced by all the people living in the county and it is prevalent through out the land. Until the 18th century, the general customs of England were recognized as common law but today it is not so.
According to Keeton, a general custom must satisfy certain conditions if it is to be a source of law. It must not only be reasonable but also be followed and accepted as binding.
Requisites of a valid custom
1. Reasonableness
It must be remembered that the authority of a prevailing custom is never absolute, but it is authoritative provided it conforms to the norms of justice and public utility.
2. Consistency
A custom to be valid must be in conformity with statute law. In other words, it should not contrary to an act of parliament. A custom should necessarily yield where it conflicts with a statutory law.
3. Compulsory observance
A custom to be legally recognized as a valid custom must be observed as of right. It means that custom must have been followed by all concerned with out resource to force and without the necessity of permission of those who are adversely affected by it.
4. Continuity and immemorial Antiquity
A custom to be valid should have been continuously in existence from the time immemorial. To quote Blackstone, "A custom in order to be legal and binding, must have been used so long that the memory of man rennet not to the contrary.
5. Certainty
In order prove the existence of a custom since time immemorial, it must be shown that it is being observed continuously and uninterruptedly with certainty. The element of certainty evinces the existence of a custom; therefore, a custom cannot be in existence from the time immemorial unless its certainty and continuity is proved beyond doubt.
3.2 Legislation as a source of law
The term legislation is derived from latin word,legis means law and latum,which means to make or set. The word legislation means making of law. The term legislation has been used in different senses.
Broadest sense: It includes all methods of lawmaking.
Technical sense: legislation includes every expression of the will of the legislature, whether making law or not.
Definition:
1. Holland:
He says the term legislation in its widest sense and the making of general orders by our judges is a true legislation as carried on by the crown.
2. Austin:
Legislation includes activates which result into law-making or amending, transforming or inserting new provisions in the existing law.
3. Salmond:
He observed that legislation is that source of law which consists in the declaring of legal rule by a competent authority. The term legislation as a source of law is used in three different senses.
a. Strict sense :- It is that source from where the rules of law declared by competent authority are
framed.
b. Widest sense:-Legislation may either be
1. Direct
2. Indirect
Kinds of subordinate legislation
The chief forms of subordinate legislation are as follows:
1. Colonial legislation:
The British colonies and other dependencies were conferred limited power of self government in varying degrees by the imperial legislature.
2. Executive legislation:
The legislature therefore the parliament quit often delegates its rule-making power to certain departments of the executive organ of government.
3. Judicial legislation:
In certain cases legislative power of rule-making is delegated to the judiciary and the superior courts or authorized to make rules for regulation of their own procedure in exercise of this power.
4. Maniple legislation:
The maniple authorities are allowed within their areas to make by-laws for limited purposes such as water-tax, land urban cess, property tax, town planning, public health, sanitation etc.
Growth of delegated legislation
1. The newly evolved concept of welfare state has caused tremendous increase in the work of the government which necessitated a huge bulk of legislation. The parliament hardly has time to deal with this wide range of legislation efficiently and, therefore, it concentrates only on defining the essential legislative principles and leaves the details to be worked out by the executive.
2. The parliament found it difficult to lay down details especially certain fields of technical nature and, therefore, entrusted this task to the departments and ministers concerned.
3. The pressure of work on the parliament and lack of adequate technical knowledge about certain subjects, delegated legislation is also deemed necessary to meet unforeseen contingencies.
4. Flexibility and expediency are the two essential elements for a good government.
5. Delegated legislation is further deemed necessary to meet the cases of emergency arising out of war, insurrection, floods. Economic depression, epidemics etc.
Control of delegated legislation
In order to ensure that delegated legislation is not misused, it has been subjected to three-fold controls, namely:
1. Procedural control
It is not always possible for the parliament to exercise effective control over delegated legislation.
The methods of procedural control may include
A. Prior consultation of interests which are likely to be affected by the proposed delegated
legislation.
B. Prior publicity of proposed rules and regulations.
C. Publication of delegated legislation being made mandatory
2. Parliamentary control
Another method of controlling delegated legislation is lay it before the parliament so that members get an opportunity to discus and at times amend it.
3. Judicial control
Judiciary also exercises effective control on delegated legislation. Whenever a law made by the executive is bound to be
a. Inconsistent with the constitution
b. Ultra-vires the parent act from which the law making power has been derived, it is declared null and void by the court.
Delegated legislation
Another kind of subordinate legislation is executive legislation or delegated legislation. It is a true that certain cases, the power of making rules are delegated to the various departments of the governments.
Many factors have been responsible for the growth of delegated legislation. The concept of the state as changed and instead of talking of a police state, we think in terms of a welfare state.
Delegated legislation is controlled in the following ways:
a. Parliamentary control:
Parliament has always general control. When a bill is before it, it can modify, amend or refuse minister or some other subordinate authority.
b. Parliamentary supervision:
A second way of controlling delegated legislation is that laws made under delegated legislation should be laid before the legislature for approval and the legislature may amend or repeal those laws if necessary.
c. Judicial control:
While parliamentary control is direct, the control of courts is indirect. Courts cannot annual subordinate enactments, but they can declare them inapplicable in particular circumstances.
d. Trust worthy body
An internal control of delegated legislation can be ensured if the power is delegated only to a trust worthy person or body of persons.
e. Publicity:
Public opinion can be a good check on the arbitrary exercise of delegated statutory powers. Public opinion can be enlightened by antecedent publicity of the delegated laws.
f. Expert's opinions:
In matters of technical; nature, opinions of experts should taken. That will minimize the danger of vague legislation and "blanket" delegation.
Codification
According to the oxford dictionary, "code is a systematic collection of statuettes, body of laws, so arranged as to avoid inconsistency and over lapping."
In India, we had not only the code of manu but also the codes of Yajnavalkya, Brihaspathi, narada and Parashar. The other important codes were the Jewish code, the Chinese code, the code of Hammurabi etc.
The following important conditions lead to codification:
1. The exhaustion for the time being of the possibilities of juristic development of existing legal materials, or where the legal institutions have become completely mature, or where the country has no juristic past, the non-existence of such material.
2. A consolidating code is that code which consolidates the whole law-statutory, customary and president-on a particular subject and declares it.
3. A code may be both creative and considering. It may make new law as well as consolidate the existing law on a particular subject. The recent legislation in India on Hindu law is an example of this kind.
Merits
1. The one great merit codification is that law can be known with certainty.
2. Another advantage of codification is that the evils of judicial legislation can be avoided.
3. Codification is necessary to preserve the customs or suited to the people of a country.
4. The codification of law is necessary to bring about a sense of unity in the country.
Demerits
1. Codification is not an unmixed blessing. Codification brings rigidity into the legal system.
2. Codification results in the regimentation of the life of the people.
3. A code is the work of many persons and no wonders the provisions of a code are found to be
incoherent.
4. Codification makes the law simple and thereby enables the knaves to florist.
5. A code is likely to disturb the existing rights and duties of the people by
1. Creating new rights and duties in place of the old ones.
2. Critics point out that the codes of France and Germany have failed and consequently it is useless
to have them.
3. No code can be complete and self-sufficing. In course of time, every code is overlaid with an
accumulating mass of comment and decisions.
Rules of interpretation
1. Grammatical Interpretation:
Salmond refers to two kinds of interpretations, Grammatical and logical. In the case of grammatical interpretation, only the verbal expression of law is taken into consideration and the courts do not go beyond the litra legis.In the case of logical interpretation, the courts are allowed to depart from the letter of the law and try to find out the true intention of the legislature.
Logical defects by which grammatical interpretation may be affected:
a. The first defect is that of ambiguity. The language of a statute may be such that instead of having one meaning, it may possible to put two or more meanings on the same word.
b. Another defect is that of inconsistency. The different parts of the law may be inconsistent with one another and thereby destroy and nullify their meanings in such a case, it is the duty of the codes to find out the true intention of the legislature and correct the letter of the law.
c. Another logical defect may be that law in itself is incomplete. There may be some lacuna in the law it self and that may not allow the whole meaning to be expressed.
2. Golden Rule
Through the literal interpretation must be accepted, it must be applied very cautiously. It should not be followed if the statute is apparently defective. The literal interpretation is a means to ascertain the general purport of the statute or ratio leges.
3. The Mischief rule
When the true intention of the legislature cannot be determined by the language of the statute on question, it is open to the court to court consider the historical background underlying the statute.
4. Logical interpretation
Logical interpretation is to be put on a statute only when grammatical or literal interpretation is not possible.
In such cases, the true intention of the legislature has to be found out by referring to other facts. If the words are ambiguous, that interpretation is to be preferred this prevents the law from becoming absurd and dead letter.
5. Strict and Equitable Interpretation
When the litera logis suffers from ambiguity, it usually happens that one of the meanings is more obvious and consonant. With the popular use of the language. If this meaning is adopted, the interpretation is called strict or literal. Sometimes, courts reject the natural and most known interpretation in favour of another which conforms better to intention of the legislature through it may not fit in with the ordinary use of language.
6. Restrictive and extensive interpretation
Equitable interpretation is either restrictive or extensive, according as it is narrower or wider than the literal interpretation is applied to penal and fiscal statutes. This law imposes restraints on the liberty of an individual or on the enjoyment of property by him.
7. Historical interpretation
While interpreting a statute when its language gives no clue to the intention of the legislature. What is done is that courts consider the circumstances attending the original enactment and give effect to the intention which the legislature would presumably have expressed if its attention had been drawn to the particular question.
8. Sociological interpretation
The view of Kohler is that for the determination of the correct interpretation, courts can properly refer to the history of social movements and enquire into social needs, objects and purposes which were agitating the society at the time of the legislation and which the statute had in view.
Rules of Interpretation of statutes
There are certain well-known rules of interpretation of statutes.
1) According to Lord Simon: "The golden rule is that the words of a statute must prima facie be
given their ordinary meaning
2) The statute must be read as a whole and construction should be put on all parts of the statute.
3) The statute should be construed in manner to carry out the intention of the legislature.
4) The interpretation of a statute should be in accordance with the policy object of the statute in
question.
5) The words used in a statute should be construed in the popular sense. If those are used in
connection with some particular business or trade, they will be presumed to be used in a sense
appropriate to or usual in such business or trade.
6) The words in a statute should be taken to have been used in the sense that bore at the time statute
was passed.
7) There is a presumption in the construction of statutes that the same words are used in the same
meaning in the same statute and a change of language is an indication of change of intention on
the part of the legislature.
8) If the language of a statute is clear, it must be enforced although the result may harsh or unfair or
inconvenient.
9) As far as possible, statutes should be interpreted in such a way as to avoid absurdity.
10) The doctrines of expressio unius exclusio alterius and ejusdem generic apply in the interpretation
of statutes.
A judicial precedent is purely constitutive in nature and never abrogative. This in other words means that it can create law but cannot abolish it. The judges are not at liberty to substitute their own views were there is a settled principle of law. They can only fill in the gaps in the legal system and remove imperfections in the existing law.
Circumstances which destroy the binding force of judicial precedents
1. Ignorance of statute
A precedent is not binding if it be rendered in ignorance of any statute or any other rule having the force of statute. It is also not binding if the court had the knowledge of the existence of the statute but it failed to appreciate its relevance to the matter in hand due to negligence or ignorance.
2. Inconsistency between earlier decisions of higher court
A precedent loses its binding force completely, if it is inconsistent with the decision of a higher court.
Young v/s Bristol Aeroplane co.ltd.
In this case observed that it is bound follow its own previous decisions as well ass those of courts of coordinate jurisdiction. The court is bound to refuse to follow a decision of its own which, though not expressly over ruled, can not, in its opinion, stand with a decision of the house of lords or if it finds that there is inconsistency between its earlier decision.
3. Inconsistency between earlier decisions of the court of the same rank:
A court is not bound by its own earlier decision which is conflicting with each other. The conflict may rise due to inadvertence, ignorance or forgetfulness in not citing in earlier decision before the court. In such a case the earlier decisions are not binding on the court.
4. precedent sub sinentio
A decision is said to be sub silentio when the point of law involved in it is not fully argued or not perceived by the court.
5. Decision of equally divided court
There may be cases where the judges of the apple ant court are equally divided. In such a case practice is to dismiss the appeal and hold that the decision appealed against is correctly decided. But this problem does not arise one a days because benches are always constitutes with uneven number of judges.
6. Erroneous decisions
The decisions which are founded on misconceived principles or in conflict with fundamental principles of law lose their binding force totally.
7. Abrogated decisions
A decision ceases to be binding if statute inconsistent with it is subsequently enacted. So also it ceases to binding if it is reversed, over ruled or abrogated. if a decision is wrong or irrational, it may be abrogated by a subsequent enactment or decision of a higher court.
8. Affirmation or reversal on a different ground
When a higher court either affirms or reverses the judgment of the lower court on aground different from that on which the judgments rests, the original judgment is not deprived of all the authority but the subsequent court may take a view that a particular point which the higher court did not touch, is rightly decided.
Ratio decedendi
It is well established doctrine of precedents pre supposes existence of the hierarchy of courts. The general rule is that a court is bound by the decisions of all courts higher then itself.
In India, all High courts of the states are bound by the decisions of the Supreme courts and all courts subordinate to a high court are bound by the high court's decision.
Having considered the extent to which courts are bound by previous decisions, it becomes necessary to consider what actually constitutes the decisions in a case and what is that which is actually binding on the lower courts.
A decision generally as two aspects, namely:
1. What principle it lays down on the rule of law for which it becomes an authority. This is generally called the ration decidendi of the case.
2. What the case decides between the parties. Such matters become res judicata between the parties and cannot be the subject of further dispute.
The term ratio decided liberally means reason of the decision. It is the general principle which is deduced in a case. In other words ratio decidendi is the rule of law upon which the decision is founded.
Bridges v/s hawkeshworth
In this case a customer found some money on the floor of a shop. The court applied the rule of finders-keepers and awarded possession of the money to him rather than to the shop keeper. The ratio decidendi of this case is that finder of goods is the keeper therefore has right of possession over it.
Obiter dicta
In the course of judgment, a judge may make various observations which are not precisely relevant to the issues before him.
Ex: He may illustrate his reasoning statements of law which lay down a rule which is unnecessary for the purpose in hand, are called obiter dicta.
Obiter dicta literally mean something said by the judge by the way, which does not have any binding authority.
Goodhart:
He defines obiter dictum "as a conclusion based on a fact the existence of which has not been determined by the court."
Doctrine of stare decisis
The doctrine of stare decisis has essentially developed as a result of progress made in law-reporting. To begin with, there was no doctrine of stare decisis as there was no reporting of the decisions of the court in England.
The doctrine of stare decisis literally means let the decision stand in its rightful place. When a decision contains a new principle, it is binding on subordinates courts and has persuasive authority for equivalent courts.
The operation of the doctrine of stare decisis pre supposes the existence of a hierarchy of courts.
Ex: In India the lower-most courts or the courts of the first instance are the subordinate courts, above them are high courts and the Supreme courts is at the apex. Thus the Supreme Court is the highest judicial court in India.
General principles
1. Each court is absolutely bound by the decisions of the court above it.
2. To a certain extent, higher courts are bound by their own decisions. In India the Supreme Court is,
not bound by its own earlier decisions.
3. The decision of one high court is not binding on any other high court and it has only a persuasive
value.
4. A single bench judge is bound by the decision of a division bench of the same high court but a
division bench is not bound to follow a decision of a single bench of the same high court.
Krishna Swamy v/s union of India
The decision of this court is the lost word on the interpretation of the constitution and the law of the land under art. The judge is the living oracle working in dry light of realism pouring life enforces into the dry bones of law to articulate the felt necessities of the time.
Merits
1. Case-law being an out come of continues judicial process, it is more in keeping with the needs of
the society. Precedents enable the judges to re-shape law according to the social needs and yet the
same binding authority of the precedents acts as an effective check on the arbitrary discretion of
the judges.
2. Precedent being result of concrete problems which actually arose in the case, gives rise to
practical and perfect law whereas the law enacted by legislature is mostly based on assumption
and imagination therefore, it is an imperfect and abstract law.
3. The law contained in case-law is certain and easy to understand. Once a case is decided, people
know it with certainty as to what would be ruling in similar cases which arise in future.
4. Precedents provide useful guidelines for the judges in deciding cases before them.
5. Citing of precedents and case-law helps the members of the bar to substantiate there argument
without waste of u necessary time and energy.
6. Precedent provides flexibility to law to adopt itself to new situations and social conditions the
case-law relating to right to property in India.
Demerits
1. Judicial precedents are published in law-reports which are in such a large number that it becomes
practically difficult to find out a particular case from such voluminous legal literature.
2. Bentham did not recognize precedent as law at all because it lacks binding force of the state.
3. According to Fedrick Pollock, the law based on case-law in is incomplete because the judge takes
o\into consideration only those facts which are involved before him.
4. Another objection which is quit often raised against judicial precedents is that it over looks the
fundamental rule of natural justice it is that law must be knows before it is actually enforced.
5. At times erroneous of superior courts create practical problems for the subordinate judges as they
are bound to follow to these decisions how so ever wrong for defective.
6. It is
generally alleged that precedents are an out come of hasty decisions of the courts.
UNIT -IV
Rights and duties
Concept of legal rights:
Rights are either moral or legal. A moral natural right is an interest recognized and protected by a rule of morality- violation of which would be a moral wrong.
Ex: Parent's interest to command respect from their children is their moral right but if children violate it, is a moral wrong.
The legal right is an interest recognized and protected by a rule of law, violation of which would be a legal wrong.
Definition of legal right:
1. Sir John Salmond:
He defines right as an interest recognized and protected by a rule or justice. It is an interest in respect of which there is a duty and the disregard of which is wrong.
2. John Austin:
He says that a party has a right when another or others are bound or obliged by law to do or forbear towards or in regard of him.
3. Dugius:
Right is nothing but a permission to exercise certain natural powers and upon certain conditions to obtain protection, restitution or compensation by the aid of public.
There are eight kinds of law
It means a rule which prescribes a general course of action imposed by some authority which enforces it by superior power either by physical force or any other from of compulsion.
It is the very nature of law to be imperative other wise it is not law but a rule which may or may not be obeyed. Imperative laws have been classified with reference to the authority from which they proceed. They are either divine or human. Divine laws consists of the commends imposed by God upon men and they are enforced by threats of punishment of in this word or in the next word.
Imperative law is that it should be enforced by some authority. The observance of law must not depend upon the pleasure of the people. Law as to be enforced by the machinery of the state.
1. Physical or scientific laws
Physicals laws or the laws of science are expression of the uniformities of nature- general principles expressing the regularity and harmony observable in the activities and operations of the universe.
Ex: of physical law is the law of tides.
Physical are also called natural laws or laws of nature. There is uniformity and regularity in those laws. They are not the creation of men and can not be change by them. Human laws change from time to time and county try to country but physical laws are invariable and immutable for ever.
2. Natural law or moral law
By natural law or moral law is meant the principles of natural right and wrong- the principles of natural justice if we use the term justice in its widest sense to include all forms of rightful action. Natural law has been called divine law, the law of reason, the universal or common law and eternal law. It is called the command of God imposed upon men.
It is unwritten law and is not written on brazen tablets or pillars of stone but by the finger of nature in the hearts of men. It is universally obeyed in all places and by all people. It has existed from the beginning of the world and hence is called eternal.
Devine law is also called as natural law as its principles are supposed to have been laid down by God for the guidance of mankind. It is called rational law as it is supposed to be based on reason. It is called unwritten law as it is not to be found in the form of a code.
The l aw of nature has performed a very useful function. it was with help of the law of nature that the jus civil or civil law of the Roman's was transformed into jusgentium which later on became the basis of international law.
The law of nature puts forward an ideal to be followed. This was actually done by writers like Hegel, Kant, Paine, Aristotle, Locke, Hume etc.
3. Conventional law
Conventional law means any rule or system of rules agreed upon by persons for the regulation of their conduct towards each other. It is a form of special law. It is law for the parties who subscribe to it.
Ex: Conventional laws are the laws of cricket or any other game, rules and regulation of a club or any other voluntary society.
4. Customary law
Customary law means any rule of action which is actually observed by men-any rule which is the expression of some actual infirmity of some voluntary action. A custom may be voluntary and still it is law
When a custom is firmly established, it is enforced by the authority of the state. Customary law is an important source of law. This is particularly so among the conservative people who want to keep as much of the past as possible.
5. Practical or technical law
Practical or technical law consists of rules for the attainment of certain ends.
Ex: the laws of health, the laws of architecture etc.
This rules guide us as to what we ought to do in order to attain a certain end. Within this category come the laws of music, laws architecture, laws of style etc.
6. International law
International law consists of rules acknowledged by the general body of civilized independent states to be binding upon them in their mutual relations. It consists of those rules which govern sovereign states in their relations and conduct towards each other.
7. Civil law
Civil law is the law of the state or of the land, the land, the law of lawyers and the law courts. Civil law is the positive law of the land or the law as it exists. Like any other law, it is uniformed that uniformity is established by judicial precedents.
A law in the sense in which that term is employed in jurisprudence, is enforced by a sovereign political authority. It is thus distinguished not only from other rules which, like the principles of morality and the so called laws of honor and of fashion are enforced by an indeterminate authority, but also from all rules enforced by indeterminate authority which is either, on the one hand, super human or on the other hand, politically subordinate.
In order to emphasize the fact that laws, in the strict sense of the term, are thus authoritatively imposed, they are described as positive laws.
Theories of legal rights
There are two main theories, those are:
1. Will theory or legal right:
It has been supported by Hegel, Kant, Hume and others. According to this theory, a right is an inherent attribute of the human will. The theory suggests that it is through a right that a man expresses his will over an object.
The theory has been accepted by historical jurists of Germany. According to Austin, right of a person means that others are obliged to do or forbear from doing something in relation to him. His concept of right is obviously based on sovereign power of the state.
2. Interest theory of legal right:
It was mainly propounded by the German jurist Ihring. According to this theory, a legal right is a legally protected interest. The main object of the law is protection of human interests and to avert a conflict between their individual interests.
Gray was impressed the theory of interest, he says a legal right is not an interest in itself but it is only a means to extend protection to interests.
Essential elements of legal right:
1. The person of inherence:
A legal right is always vested in a person who may be distinguished as the owner of the right, the subject of it or the person of inherence.
Ex: An unborn child possesses a legal right although it is not certain whether he would be born alive or not.
2. The person of incidence:
A legal right avails against a person upon who lays the co-relative duty.
3. Contents of the right:
The act or omission which is obligatory on the person bound in favour of the person entitled.
4. Subject matter of right:
The act or omission relates, that is, the thing over which a right is exercised.
Ex: master and servant relationship: If B is the servant of A, then in this case A is the person of inherence, B is the person of incidence and reasonable service is the act to which A is entitled. But in this case the object of right is missing because there is no material thing to constitute an object in this illustration.
5. Title of the right:
Every legal right has a title, that is, certain facts or events which are events by reason of which the right has become vested in his owner.
Enforcement of legal right
The enforcement of legal rights is possible through the agency of court of law established by the state. The usual method of enforcement of a legal right is award of damages in civil cases. In certain cases, specific performance may also be ordered by the court.
Another method of enforcement of legal right which is commonly restored to is grant of an injunction whereby a party is restrained from doing an act which is likely to affect the plaintiff adversely in enjoyment of his legal right.
Kinds of legal rights
There are ten legal right, those are:
1. Perfect of legal right:
A perfect of legal right is one which corresponds to a perfect duty. It is not only recognized by late but also enforced by it. A perfect right is one in respect of which an action can be successfully brought in a court of law, and the decree of the court if necessary, enforced against the defaulting judgment-debtor.
2. Positive and negative rights:
A tight is distinguished as positive and negative according to the nature of the co-relative duty it carries with it. In case of positive right, the person subject to the duty is bound to do something whereas in case of negative rights.
Distinction between positive rights and negative rights
1. A positive right corresponds to a positive duty whereas a negative right corresponds to a negative
duty.
2. A positive right involves a positive act while a negative right involves some kind of forbearance
or not doing.
3. A positive right entitles the owner of it to an alteration of the present position to his advantage
whereas a negative right seeks too maintain the present position of things.
4. A positive right aims at some positive benefit but a negative right aims at not to of things.
5. A positive right requires an active involvement of others but a negative right requires only passive
acquiescence of other persons.
6. Right to the money in one's debtor's pocket is an illustration of a positive right while the money
in one's own pocket is an example of a negative right.
3. Real and personal rights:
There are also called rights in rem and rights in personam. The distinction between real and personal rights is closely connected but not incidental with that between negative and positive duties.
4. Proprietary and personal rights:
The aggregate of man's proprietary right constitutes his estate, his assets and his property. They have some economic or monetary significance and are elements of wealth.
Ex: money is one's pocket or in bank, right to debt, land, houses etc., are proprietary rights.
The distinction between proprietary and personal rights
1. Proprietary rights relate to estate of a person which includes all his assets and property in any
form. The personal rights, on the other hand, pertain to the status of a person.
2. Proprietary rights are alienable while the personal wealth whereas personal rights are elements of
his well-being.
3. Proprietary rights are alienable while the personal rights are not alienable. The former are
inheritable whereas the later are not heritable.
4. Proprietary rights are more static as compared with the personal rights.
5. Rights in re propria and rights in re aliena:
Right in re propria means right over one's property and right in re aliena means right over the property of some one else.The most absolute power which the law gives over a thing is called the right of dominium. This is a real right in a thing which is one's own, and is called right in re propria. According to Salmond, a right in re aliena is one which limits or derogates from some more general right belonging to some other person in respect of same subject-matter.
6. Principal and Accessory Rights:
The existence of principal rights is independent of any other rights but accessory rights are ancillary to principal rights and have a beneficial effect on the principal right.
Ex: If a debt is secured by a mortgage, the recovery of debt is the principal right while security is the accessory right.
7. Primary and Sanctioning rights:
Primary rights are also called the antecedent or substantive rights. Sanctioning rights are also called the remedial or adjective rights. Salmond has pointed out that a primary right can either be a right in rem.
Ex: One's right not to be assaulted or it may be a right in personam i.e., right of a promisee that the promiser should perform his part of the contract.
8. Legal and Equitable right:
The distinction between legal and equitable right originates form the distinction between law and equity. The general principle regarding equitable rights is that when there are two inconsistent equitable rights claimed by different persons over the same thing, the first in time shall prevail.
The Indian law does not recognize the distinction between law and equity since there is neither separate equity law nor separate equity courts in India.
9. Vested and Contingent rights:
A vested right accrues when all the facts have occurred which must by law occur in order that a person in question would have the right. A vested right creates an immediate interest. It is transferable and inheritable. A contingent right does not create an immediate interest and it can be defeated when the required facts owner have occurred.
10. Public and Private Rights:
A right vested in the State is called a public right. The State enforces such right as representative of the subjects in public interest. A public right is possessed by every member of the public. A private right, on the other hand, is concerned with only private individuals.
Nature of Possession:
Possession is the most basic relation between man and things. Possession of material things is essential to life because the existence of human life and human society would be rather impossible without the consumption and use of material things.
According to Henry Maine, possession means that contract with an object which involves the exclusion of other persons from the enjoyment of it.
Meaning of possession
1. Salmond:
The possession of a material object is the continuing exercise of a claim to the exclusive use of it.
2. Savigny:
The essence of corporeal possession is to be found in the physical power of exclusion. The first is corpus; it means physical power to possess a thing for the first time. The second is, having initially acquired the thing, there must be physical power to retain it.
3. Zachaise:
Possession is to recall the images which presents itself to the mind when it is necessary to decide between two parties, which is in possession of a thing and which is not.
Elements of possession
Legal possession has two essential elements namely,
1. Corpus possessionis:
Corpus implies two things, namely,
a. Possessor's physical relation to the res i.e., the object.
b. The relation of the possessor to the rest of the word.
The physical control of the possessor over a thing implies that others will not interfere with the possessor's right to use or enjoyment of that thing. The assurance of non-interference can be secured in any of the following ways:
1. Physical power of the possessor:
The physical power of the possessor over the thing in his possession acts as a guarantee of user of that thing.
2. Personal presence of the possessor:
In many situations mere physical presence of the possessor is enough to retain possession although he may not have the necessary physical strength to resist interference.
3. Security:
If a person keeps a thing which is in his possession in a hidden place, it is an effective mode of excluding external interference and keeping that thing secured.
4. In modern societies wrongful possession is not deemed with favour, therefore respect for rightful claim prevents others from interfering with the legal possession of the possessor.
5. Protection afforded by the possession of other things:
At times possession of an object tends to confer possession of certain other things which are connected with it or accessory.
2. Animus possidendi:
The subject or mental element in possession is called animus possidendi which implies intention to appropriate to oneself the exclusive use and enjoyment of the thing possessed.
Holland pointed out that apart from the physical power to deal with the thing, the possessor must also have a will to exercise such control.
Essential elements of animus possidendi:
1. The animus or desire to possess need not necessarily be rightful, it may even be consciously
wrongful.
2. The possessor must have exclusive claim over the thing in his possession.
3. The animus need not amount to a claim or an intention to use the thing as owner.
4. The animus may not be specific; instead, it may be merely general.
Theories of possession
Following various theories are explained regarding the concept of possession.
Theories of possession:
The following theories are helpful to understand the concept of possession
1. Savigny's theory of possession:
He emphasized that possession has two basic elements, namely,
a. Corpus possessionis:
It means immediate physical power to exclude any foreign agency's interference by the possessor.
b. Animus domini:
It means mental element or conscious intention to hold the object as owner against all other.
According to him, protection of possession is a branch of the protection to person and as any of violence to person is unlawful, so is the act which disturbs possession by fraud or force, is unlawful.
Criticism:
1. He was wrong in assuming that possession cannot be acquired without corpus and animus and
possession is lost when either of these elements is lost.
2. Possession continues even when one of the elements is lost and in some instances even in absence
of both the elements.
3. Ihring's theory of possession:
He justified protection of possession under Roman law and said, "Whenever a person looked like an owner in relation to a thing, he had possession of it, unless possession was denied to him by rules of law based on practical convenience."
For Ihring, possession is ownership on the defensive. A person who is exercising ownership in fact must be protected and be free from the necessity of proving title against a person who is in unlawful possession.
Criticism:
1. He analyzed the concept of possession purely in the background of Roman possessory interdicts.
2. It fails to explain the cases where law refused possessory rights to persons who were in effective physical control of the thing possessed.
3. Kant's Theory of possession:
He says men are born free and equal. Freedom of will is the essence of man. Possession is the embodiment of the will of a man. The will of an individual thus exhibited in possession is entitled to respect from every individual.
4. Holland's Theory
His theory of possession is founded on preservation of peace in society. In his view predominant motive that has induced the law to give protection to possession was probably a concern for the preservation of peace.
Kinds of possession
Possession may be of five kinds. Those are:
1. Corporeal and Incorporeal Possession:
1 Corporeal possession is the possession of material things land, house, buildings and movables like books, chattels etc., in this case of corporeal possession, the corpus consists
a. In confirming exclusion of other's interference.
b. In the enjoyment of the thing at will without external interference.
Incorporeal possession means possession of immaterial or intangible things which we cannot touch, see or perceive.
Ex: a copy-right or trade mark, good will, reputation etc
2. Mediate and Immediate possession:
This kind of possession is the possession of a thing through another person. It is also known as indirect possession.
Ex: If a purchase a book remains in my agent's or servant's possession.
Categories of mediate possession
1. Possession acquired through an agent or servant
2. Possession held through a borrower or hirer to tenant where the res therefore, the object can be
demanded at will
3. Where the property is lent for a fixed period of time or delivered as security for the repayment of a
debt.
Immediate possession is also known as direct possession. If the relation between the possessor and the thing possessed is a direct one, it is called immediate possession.
Ex: If a purchase a book myself, I have immediate possession of it without any intervening agency.
3. Concurrent possession or duplicate possession:
The exclusiveness is the essence of possession because two adverse claims of exclusive use are not capable of effectual realization. It is, realized that there may be certain claims which are not adverse and are not, mutually destructive.
4. Constructive possession
It possession is possession in law and not actual possession. It is a right to recover possession.
Ex: The delivery of keys of a building or a where house may give rise to constructive possession of the contents to the transferee of the key.
6. Adverse possession
1It implies the possession by a person initially holding the land on behalf of some other person and subsequently setting up his own claim as a true owner of that land. If adverse possession continues peacefully undisturbed for a prescribed period, the title of the true owner is extinguished and the person in possession becomes the true owner of that land.
There are three elements in adverse possession those are
1. Continuity
2. Adequate publicity
3. Peaceful and be actual, exclusive.
Acquisition of possession
1. Taking
It is the acquisition of possession without the consent of the pervious owner. Taking may either be rightful or wrongful. It is not necessary that the thing taken in possession must necessarily be already in possession of any previous owner.
2. Delivery
When a person acquires possession with the consent or co-operation of the previous owner, it knows as acquisition of possession by delivery. Delivery is of two kinds. Those are:
1 Actual
2. Constructive
Actual delivery is the transfer of immediate possession. It involves transfer of a thing from the hands of one possessor to another. Actual delivery involves immediate transfer of possession such as sale.
3. Operation of law
Possession may also be obtained by operation of law. This happens when possession changes hands as a result of operation of law.
Ex: A person dies; the possession of his property is transferred to his successors and legal heirs. It may be noted that long, continuous and uninterrupted adverse possession for a period of 12 years extinguishes the claim of title of the true owner and adversary's adverse clam is established.
Distinction between possession and ownership
1. Possession is the objective realization of ownership. It is the external realization of ownership. It is a valuable peace of evidence to show the existence of ownership
By ownership in law is meant the rights of an individual or a body corroborates or in corroborate to possess a thing to the exclusive use of it, to alienate it, and even to destroy it in such manner that he does not disturb the rights of the other people.
2. Ownership is a right indefinite is in point of user, unrestricted in point of disposition and unlimited in point of duration.
Possession is in fact what ownership is in right. It is the defact to exercise of a claim; ownership is the dejure recognition of one.
Definition of ownership
1. Hibbert
He says ownership includes within it four kinds of rights. those are
1. Right to use of a thing
2. Right to exclude others from using the thing
3. Disposing of the thing
4. Right to destroy it
No one can have an absolute ownership in land as land is not capable of being destroyed. One can merely have an estate in it.
2. Austin
He defines ownership as a right which avails against every one who is subject to the law conferring the right to put thing to user of indefinite nature. Ownership is a right to indefinite in point of user unrestricted in point of disposition and unlimited in point of duration.
There are three arributes of ownership
(1) Indefinite user
The use of the word indefinite has a special significance because the use of the land by the owner can be restricted by agreements or by operation of law.
(2) Unrestricted disposition
An owner of a thing has unrestricted right to depose it of in away he likes.
(3) Unlimited duration
The right shall exist so long as the owner and the thing exists. It is a perpetual interest which shall devolved upon the heirs of the owner after his death, but the right shall not be extinguished.
Salmond
According to him, ownership, in its most compromise signification, denotes the relation between a person and right that is vested in him.
Holland
He defines ownership is a plenary control over an object. The word ownership can be used to connote three different kinds of powers.
Keeton
Ownership as the ultimate right to the enjoyment of a thing, as full as the state permits, when all prior rights in that thing vested in persons other than the one entitle to the ultimate use, by way of encumbrance, have exhausted.
There are six kinds of ownership
1. Corporeal and incorporeal ownership
The ownership of material objects is called corporeal ownership whereas the ownership of right is called incorporeal ownership. Thus the ownership of a house, table, land, machinery etc. Is corporeal ownership of a copyright, patent, trademark, right of way etc, is incorporeal ownership.
2. Sole ownership and co ownership
When the ownership is vested in a single person, it is called sole ownership. When it is vested in two or more persons at the same time, it is called duplicate ownership, of which co-owners is specie.
Ex: The members of a partnership firm are co-owners of the partnership property.
Co-ownership may be of two kinds
Ownership in common and joint ownership
In cases of ownership in common, the right of the deceased passes on to his successors like other inheritable right. Case of a joint ownership, if one of the two joint-owners dies, his right of ownership also dies with him and the survivor becomes the sole owner by virtue of his right of survivorship.
3. Trust ownership and beneficial ownership
Property is owned by two persons at the same time. The relation between them is such that one of them is under an obligation to use is ownership for the benefit of the other. The farmer is called the trustee ownership is beneficial ownership.
The main classes of persons in whose behalf the protection of trust is created are as follows
a. Unborn persons whose rights and interest are to be protected.
b. Persons under some kind of disability such as i9nfancy, lunacy etc., and are incapable to
safeguards their own interests in the property.
c. Several persons having common interest in the property, that is, the co-owners of the property.
d. Persons having conflicting inters over the same property. Such property is entrusted to the trustees
and the law vests in them the rights and interests for safe custody so that it is protected from
destruction.
4. Legal and evitable ownership
Some time one person may be the legal owner and another equitable owner of the same thing or right at the same time. Legal ownership is that which has its origin in the rules of common law whereas equitable ownership proceeds from the rules of equity.
Ex: When a debt is verbally assigned by A to B, A remains the legal owner of it but B becomes the equitable owner of it.
5. Vested and contingent ownership
Ownership may either be vested or contingent .in vested ownership the title of the owner is already perfect while in contingent ownership his title is as yet imperfect but it is capable of becoming perfect on the fulfillment of some conditions.
Ex: A testator may leave property to his for her life, and on her death to A, if he is then alive, but if a dead. To B. here A and B are both ownes of the property I question, but there ownership is merely contingent. The ownership of A is conditional on his surviving the testator's widow, and that of B is conditional on the death of A during the windows life-time.
The distinction between vested and contingent interest
1. A vested interest creates an immediate right and it does not depend upon fulfiment of any condition.
But a contingent interest is solely dependent upon the fulfiment of a condition. If the condition is not fulfilled, the interest comes to an end.
2. A vested interest is not defeated by the death of the transferee before the obtains possession.
But a contingent interest can not take effect in the event of the death of the transferee before the fulfilment of the condition.
3. A vested interest is transferable and heritable,
But contingent interest is not transferable or heritable.
4. Vested interest is an existing immediate right even though its enjoyment may be postponed,
A contingent interest is not a present right since it is dependent upon a condition which, if not fulfilled, shall render there interest null and void.
6. Absolute and limited ownership
When all the rights of ownership that it possession, enjoyment and disposal are vested in a person without any restriction, the ownership is absolute. But when there are restrictions as to user, duration or disposal, the ownership will be called a limited ownership.
Ex: Prior to the enactment of the Hindu Succession Act, 1956, a woman had only a limited ownership over the estate because she held the property only for her life and after her death, the property passed all to the heir last holder of the property.
Modes of acquisition of ownership
1. Original acquisition
The ownership takes place is acquired by some personal act on the part of acquirer. It may by three ways those are
a. Absolute
When a thing is acquired res nullis that is which as no previous owner.
1. Occupatio
This has been paragraph by Manu who stated the first striker of an arrow to a pray whether a bird or a wild animal, becomes its owner.
2. Specificatio
Original acquisition of ownership may also be by specific at which means a person by working upon the material belonging to another makes a new thing.
b. Extinctive acquisition
Acquisition of ownership that is when a person by some act on his part extinguishes the ownership of the previous owner and acquires his ownership himself, it is called extinctive acquisition.
c. Accessio
This is called accessory acquisition that is, when the ownership of a property is acquired by way of accession to some existing property.
Ex: Produce of land or animals or fruits of trees.
3. Derivative acquisition
When ownership is derived from a pervious owner, it is called derivative acquisition of ownership. It takes place when ownership is acquired by inheritance or gift or purchase etc.
The word person is derived from the Latin word persona. The term is used in the sense of a being who is capable of sustaining rights and duties.
Definition
a. German writers:
Will is the essence of a personality. A legal person is one who is capable of will.
b. Zitelmann
He says personality is the legal capacity of will. The body line of men is for their personality a wholly irrelevant attribute.
c. Meurer
He says the juristic conception of the juristic person exhausts itself in the will and the so called physical persons are for the law only juristic person's within a physical super fluim.
A person is not necessarily a human being. There may be human beings who are not persons. Slaves are not persons in the legal sense as they can not have rights. In the same way, there may be persons who are not human being.
Ex: A corporation. According to Hindu law, idols are legal persons.
There is nothing in law to prevent a man from owning property before he is born. His ownership is contingent as he may never be born at all, but it is a real and present ownership. A man may settle property upon his wife and the children to be born of her. Even if he dies intestate, his unborn child will inherit his estate.
A child in the womb of his mother is for many purposes regarded by a legal fiction already bore. In the words of Coke: "the law in many cases hath consideration of him in respect of the apparent expectation of his birth.
The rights of an unborn person, whether proprietary or personal, are all contingent on his birth as a living human being. The legal personality attributed to him by way of anticipation falls aware ab ignition if he never takes his place among the living.
A posthumous child may inherit if he dies in the womb or is still born, his inheritance fails to take effect and no one can claim through him. If he lived for an hour after his birth.
If some of the beneficiaries of a trust are unborn persons, the trust can not be varied without obtaining the consent of the court on their behalf.
The personality of a human being commences its existence on birth and ceases to exist at death. Dead are no longer person in the eye of law. They have laid down their legal personality with their lives and they are destitute of rights and liabilities.
They have no rights because they have no interests. They do not even remain the owners of their property until there successors enter upon their inheritance.
Without conferring rights upon the dead, law recognizes and takes account after the death of a person of his desires and interests when alive. There are three things in respect of which the anxieties of living men extended even after their death. Those are his body, his reputation and his estate. A living man is interested in the treatment to be given to his own dead body. A corpus is the property of no one. It can not be disposed of by will or any other instrument and no wrongful dealing with it can amount to theft.
The reputation of a dead person receives some degree of protection from criminal law. For year after a man is dead, his hand may continued to regulate and determined enjoyment of the property which he owned by while he was alive. The law succession permits the desires of the dead to regulate the actions of the living.
UNIT - V
5.1 LIABILITY
Every wrong is an act which is mischievous in the eyes of law, that is, an act to which the law attributes harmfully consequence. This consequence may be of two kinds, namely:
1. Actual
2. Anticipated
Wrongful acts are classified into two categories those are,
1. Those acts which are actionable without the proof of actual damages.
Ex: Trespass, libel etc., which are actionable per se.
2. Those acts which are not actionable without the proof of actual damages.
Ex: Malicious prosecution, deceit, breach of contract etc.
Criminal liability usually arises on proving the act was dangerous or mischievous even though it did not cause any harm.
As to the civil liability, no corresponding general principle like that of penal liability can be laid down. In some civil cases proof of actual damages is insisted upon while in others there is no such necessity.
Criminal law says, you should not do this, if you do this, you will be punished. Civil law on the other hand, sys, you may do this, but if any evil consequents change to follow, you will be held liable. The essence of civil liability is contained in two Latin maxims, namely
1. Damnum sine injuria
2. injuria sine damnum
All wrongs are mischievous in the eyes of law but the converse is not true. There may be cases in which damage is caused knowingly and willfully but the law will not hold the wrongdoer accountable for it.
There are two categories in this maxim
1. Cases in which there is an injury to an individual but the society as a whole is benefited, therefore,
such acts are not actionable.
2. Ex: Competition in trade might result into harm to some trades but the society in general is
benefited it.
5.3 Injuria sine damno
The maxim is just the converse of the earlier maxim damnum sine injuria. There are certain acts which though not harmful, are actionable. In other words, an injury without damages incurs civil liability.
Ashby v/s white
In this case, the plaintiff was wrongfully prevented from exercising his right to voter by the defendant returning officers in parliamentary election. The candidate for whom the plaintiff wanted to cast his vote come out successful in the election, still the plaintiff could recover damages against the defendants for maliciously preventing him from exercising his statutory right of voting in the election.
In law, a man is held liable either for doing acts which are mischievous or for causing actual injury to the plaintiff. An important concept for determining liability in law. if A is to be held responsible for burning B's house, he must first be shown to have caused it. Causation is an important factor to determined liability whether it is of a criminal or civil nature.
Two types of occurrences, namely
1. Abnormal factors
2. Human acts
An act may have been caused due to a chain of causation involving several factors. It is the established principle of law that a man is not held liable for his act if the chain of causation is broken or interfered with. if a stabs B and B is taken to hospital where, despite the fact that he is show to be allergic to ferramycin, is injected with a large dose of it, then his treatment and not the stab wound would be treated as a cause of B's death because the treatment which was abnormal, broke the casual connection between the wound by the accused and the victim's death.
The law will presume that a man has intended the natural and probable consequence of his act.
Scott v/s Shepherd
In this case, the defendant is mischievously threw a lighted cigarette squib into the market place. It fell where yetis sold ginger-bread. One willis, to prevent injury to him self and Yates, picked it up and threw it across when it fell in the shop of one royal who took it and threw it across when it struck the plaintiff's eye and injured it.
Finally the court held that the injury to the plaintiff was directly and immediately caused by the defendant, as Willis and royal, the intermediate agents acted involuntary and for self protection.
It may be reiterated that a man is held criminally liable not for his act alone but if it is also accompanied with mens rea or guilty mind with which he does it. Thus mens rea refers to the mental element necessary for the particular crime and this mental element may either be intention to do the act or recklessness as to the consequences of that act.
Wrongs incurring penal liability are of three kinds:
1. International or willful wrongs
2. wrongs of negligence
3. Wrongs of strict liability which are independent of mens rea.
Execption to the doctrine of mens rea"
1. Where the law imposes strict liability the requirement of mensrea is dispensed with.
Ex: The statutes relating to matters concerning public health, food, drugs, public safety and social welfare measures.
2. In cases where it is difficult to prove mens rea and the penalties are petty fines, the expediency
demands that dispensation of requirement of mens rea would facilitate speedy disposal of trials.
3. It is not necessary to the mens rea into consideration in deciding cases relating to public nuisance.
4. Mens rea is unnecessary in those cases which are criminal in form but in fact that are only
summery mode of enforcing a civil right.
5. Mens rea is not relevant in cases in which the plea of ignorance of law is raised in defense.
Although there is a principle of criminal law that no acts is intended unless all the three aspects of the act, namely, physical doing, circumstances and consequences, are present. But there is an exception to this rule which is covered under the doctrine of malice.
If a person by doing anything which he intends or knows to be likely cause death of any person, whose death he neither intended nor knows himself to be likely to cause, whose death he neither nor new likely to be caused.
Different stages in the commission of crime
There are four stages in the commission of every offence, there are
1. Intention to commit it
2. Preparation
3. Criminal attempt
4. commission of the offence
Mere intention or will to commit does not constitute an offence if it is not followed by an external act.
a) Where motive it is an ingredient of the offence
There are certain offences in which malice itself is an ingredient of the offence.
Ex: The wrongs of defamation, malicious prosecution, criminal conspiracy, deceit, fraud, forgery etc.
b) Jus necessitates
It is generally said that an act which is intentionally done might not be wrongful if it is done under compulsion of dire necessity.
c) Motive as a factor in fixing the measure of liability
Although motive is irrelevant in deciding the guilt of the accused, the courts do take motive into consideration in determining the measure of criminal liability.
2. Preparation
It consists of finishing means for the commission of an offence. The Indian penal code does not provide any punishments for acts done in the mere stage of preparation.
3. Criminal attempt
An attempt to commit a crime is itself an offence under sec. 511 of the I.P.C. a criminal attempt means making headway towards the commission of crime after the preparation is made.
4. Commission of crime
This is the lost and final stage in the incidence of a crime and it is punishable under the criminal law of the land.
Salmond observed that negligence is culpable carelessness. Negligence is the state of mind undue indifference towards one's conduct and its consequences.
According to Hollond, negligence includes although shades of inadvertence which result in injury to others but there is a total absence of consciousness on the part of doer.
Wills held that "negligence is the absence of such care as it was the duty of the defendant to use".
Theories of negligence
1. Subjective theory
The exponents of the subjective theory maintain that negligence is a state of mind. According to them negligence consists in the mental attitude of undue indifference with respect to one's conduct and its consequents.
2. Objective theory of negligence
According to this theory, negligence is not a condition of mind but a particular kind of conduct which is to be judged objectively. This theory is supported by Fedrick Pollock, he defines negligence as the breach of duty to take care which a reasonable person under those circumstances would take.
Essential ingredients of this theory
1. Existence of a legal duty
2. Breach of it
3. Consequential damages.
Kinds of negligence
Negligence may be of two kinds, namely
1. Advertent
2. Inadvertent
Advertent negligence is generally called as willful negligence. In this kind of negligence, the harm done is foreseen as probable but it is not intended or willed.
Inadvertent negligence, the harm is neither forcing nor willed.
Degrees of negligence
There are three types of negligence
1. Culpa lata
It means failure to shoe any reasonable care at all
2. Culp levis in abstracto
It means failure to take that care as a reasonable head of the family would have taken when contract was been concluded for the benefit of his family.
3. Culpa levis in concreto
It implies failure by a person to take that care which he ordinarily course would show in dealing with his own affairs.
Legal wrongs
The infringement of a legal right is known as a legal wrong. Legal wrongs are of two kinds, namely"
1. Crimes
2. Civil wrong
Wrong of strict liability
Generally a man is held labile for his negligence which results into harm or violation of rights of others. but there are certain exceptions to this general principle of liability. Such cases are those where a person is held liable for his act even though he did not do it intentionally or negligently. In other words, he is half liable irrespective of negligence or carefulness.
The person who, for his own purposes, brings on his land, and collects and keeps there any thing likely to do mischief; if it escapes, must keep it in his peril and if he does not do so, is prima facie answerable for all the damages which is natural consequence of its escape.
1. Mistake of law
An act done under the mistake of law is not said to be an intentional act because the doer of it does not know that what he is doing is prohibited by law. If a person has committed a wrong under mistake of law, the law will not here in say that he had no guilty mind and that but for his ignorance of law, he would have done it. Ignorance of law is no excuse in almost all the legal systems. The maxim, ignorantia juris meminem excusat.
2. Mistake of fact
Mistake of fact is a good defense in law of crimes. In India law mistake of fact is not a defense in law of torts or civil wrong.
If the intention is lawful, mistake of fact is a valid defense in criminal law.
Ex: if A intending to kill B, kills C mistaking him to be B. A has no defense, but if a who is out hunting in a forest shoots at a bush thinking that a tiger was larking in side and the bullet its and kills B, he will be exempted from criminal liability due it mistake of fact.
There are two conditions. Those are
1. It should be reasonable
2. It should be mistake of fact and not of law.
3. Inevitable accident
Inevitable accident is commonly recognized as a ground of exemption from liability both in civil and criminal law.
It is culpable when caused due to negligence but inevitable when the avoidance of it would have required a degree of care exceeding the stand red demanded by law. An inevitable accident is that which could not possibly be prevented by the exercise of ordinary care, caution and skill.
It is serves as good defense both in civil and the criminal law, but in civil law, there are some exceptions even inevitable accident cannot be availed of as a ground of defense.
It is the wrong doer himself who is held liable for his act. But there may be certain circumstances when the liability of the wrongdoers is imposed on some other person then the wrong doer himself. That is, some other person is made liable for the wrongful acts of the wrongdoer.
Ex: A master is liable for the wrongful act of his servant done in the scope of employment.
1. Holland
He defined obligation as a tie whereby person is bound to perform some act for the benefit of other. In some cases the two parties agree thus to be bound together, in other cases they are bound without there consent. In every case, it is the law that ties the knot and its untying is competent only to same authority.
2. Savigny
He says an obligation is the control over another person, yet not over his person in all respect, but over single acts of his which must be conceived of subtracted from his free will and subjected to our will.
Kinds of obligation
1. Contractual obligation
A contract is a kind of agreement which creates in personam between the parties to it.
Ex: Contract of sale and purchase, leases and guarantee etc. The rights so created are proprietary in nature, but some times they may not be in personam such as promise of marriage, which falls within the law of status.
2. Delictal obligation
These are obligations arising out of torts. It means a duty of making pecuniary satisfaction for the wrong that is committed by the defendant. Tortuous liability arises from the breach of duty primarily fixed by law this duty is towards person generally and its breach is repressible by an action for unliquidated damages.
3. Quasi-contractual obligation
The law departs from the actual facts and implies a contract by fiction.
Ex: A money decree of the court creates an obligation which is not contractual as there is no prior agreement to pay.
A judgment of a money decree creates a debt, which though non-contractual, the law by implication treats within the sphere of contract.
A quasi-contractual obligation signifies liability, not exclusively referable to any other head of law, imposed upon a particular person to pay money to other particular person on the ground of unjust benefit.
Quasi-contractual obligations also include those obligations which are infant delictal or tortious and not contractual, but if the person wronged so desires, he may treat them as contractual and sue wrong doer for a breach of contract.
4. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion
The fiction of quasi-contractual obligation has been recognized in law. They are
a. The classification of obligations into contractual and delictal obligations is not exhaustive.
b. Legal fictions have always been used in assistant the development of law.
c. The litigants generally have a desire to obtain the benefit of the superior efficiency of the contractual remedies as compared with the remedies available in torts.
5. Innominate obligations
Salmond calls it a residuary class of obligations. Thus obligations which are not covered under any of the aforesaid categories are called innominate obligations.
Ex: The obligations of trustee towards their beneficiaries and other equitable obligations are the species of innominate obligations.
Ex: The obligation of trusts towards there beneficiaries and other equitable obligations are the species of innominate obligations though they from apart of the law of property in modern legal systems.
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