Legum Baccalaureus (LLB) -PAPER-I: JURISPRUDENCE 3rd Semester Syllabus Short Notes

*** Download the PDF from the link provided at the bottom of this page.

Each subject's PDF will be in its respective blog.

 PAPER-I

SYLLABUS SHORT NOTES

 

UNIT – 1

Meaning and Definition of Jurisprudence

Jurisprudence is derived from Latin word ‘Juris’ means ‘Law’ and ‘Prudence’ means ‘Knowledge’, which means Knowledge of law.

Jurisprudence is the philosophical study and systematic inquiry into the nature, principles, and theories of law. It seeks to understand the fundamental aspects of law, including its origins, purpose, interpretation, and its role in society. Jurisprudence explores the philosophical, ethical, and social dimensions of law, as well as the ways in which legal systems function and evolve over time.

Jurisprudence is not limited to understanding positive laws (laws that are currently in force) but also involves the exploration of legal theories, legal history, and the moral and social implications of legal principles. It provides a foundation for critical thinking about the legal system and its underlying principles.

Definitions:

ULPIAN: Jurisprudence is the knowledge of things divine and human, the science of the just and unjust.

GRAY: jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in those rules.

AUSTIN: Jurisprudence is the positive law. Every law is a command, obtains its forces from its sovereign. The positive law which is termed by him as “law strictly so-called”. Austin confines the term ‘Jurisprudence’ to study of law ‘as it is’ and not ‘ought to be’ which is left to the theorist of legislation. (Bentham is the father of jurisprudence, Bentham defined jurisprudence as what it is and what are to be.  Austin is a student of Bentham)

He says “Law is command of sovereign and not of divine”. He divided jurisprudence into two, which are General Jurisprudence and particular jurisprudence.

 

General and Particular Jurisprudence

General and Particular Jurisprudence are two branches of jurisprudence (as Austin divided) that focus on different aspects of the study of law. Here's an explanation of each:

General Jurisprudence	Particular Jurisprudence
Austin Defines general jurisprudence as the science concerned with the exposition of the principles, notion and distinction which are common to the systems of law.	Austin defines particular jurisprudence as the science of any one of such system of law or any portion of it.
It is an attempt to expound the fundamental principles and broadest generalization of two or more systems.	It is confined only one jurisprudence at a time viz., Hindu Jurisprudence, Roman Jurisprudence, Islamic Jurisprudence, etc.
It is an effort to bring two or more jurisprudence under on umbrella and analyze them.	Particular jurisprudence is particular Jurisprudence.
It is a province of general, pure or abstract jurisprudence to analyse and systematize the essential elements underlying the indefinite variety of legal rules without special reference to the institution of any particular country.	Particular jurisprudence is confined to particular country or sometimes to a particular area too.
The field of general jurisprudence is wider than particular jurisprudence.	Particular jurisprudence is narrower than general jurisprudence.
It procures data from two or more countries.	It procures data from one particular system of law only.
Example: Possession is accepted as nineteenth of its right throughout the world.	Example: the period of possession differs from one country to another.

 

 Elements of Ancient Indian Jurisprudence

Ancient Indian jurisprudence had several key elements and principles that influenced the legal systems of the time. While it's important to note that different periods in Indian history had varying legal systems and philosophies, here are some common elements:

·         Dharma: Dharma was a central concept in ancient Indian jurisprudence. It represented moral and ethical principles, duties, and righteousness. It was a fundamental guide for individual conduct and governance, and it played a significant role in shaping legal norms.

·         Smriti and Shruti: Ancient Indian law relied on two primary sources: Smriti (literature, including texts like the Manusmriti and the Yajnavalkya Smriti) and Shruti (divinely revealed scriptures like the Vedas and Upanishads). These texts contained legal provisions and principles that guided societal behavior.

·         King as the Fountain of Justice: In many ancient Indian legal systems, the king or ruler was considered the ultimate authority and the fountain of justice. The king was responsible for ensuring justice, upholding the law, and maintaining order in the kingdom.

·         Panchayats: Panchayats were local councils or village assemblies that played a crucial role in dispute resolution. They were responsible for settling disputes, enforcing norms, and providing a forum for community members to resolve conflicts.

·         Laws of Inheritance: Ancient Indian jurisprudence also included detailed laws regarding inheritance and property rights. These laws were often linked to one's caste and family lineage.

·         Concept of Karma: The concept of karma, which emphasizes the consequences of one's actions, influenced notions of justice and personal responsibility. It played a role in shaping legal principles related to retribution and punishment.

·         Treatises and Commentaries: Legal scholars in ancient India produced numerous treatises and commentaries on law and jurisprudence. These writings provided interpretations of legal principles, rules of evidence, and guidelines for judicial proceedings.

·         Juristic Schools: Different regions and periods in ancient India gave rise to various juristic schools, such as the Mitakshara and Dayabhaga schools, which had distinct interpretations of law and inheritance.

·         Diversity of Legal Systems: India's history is marked by the coexistence of diverse legal systems, often based on religion, region, and cultural practices. These systems could vary significantly from one part of the country to another.

·         Oral Tradition: In some early legal systems, laws and legal norms were maintained through oral traditions, passed down through generations by local elders and scholars.

While these elements provide an overview of ancient Indian jurisprudence, it's essential to recognize that the legal landscape in ancient India was diverse and evolved over time. Different regions and periods had their own unique legal traditions and practices.

 

Schools of Jurisprudence

The schools of jurisprudence represent different approaches, theories, and philosophies regarding the nature of law, its interpretation, and its role in society. These schools provide various lenses through which legal scholars and practitioners can analyze and evaluate legal systems. Here are some of the major schools of jurisprudence:

Analytical School:

Key Figures: Jeremy Bentham, John Austin.

Core Ideas: The analytical school focuses on the logical analysis of legal language and concepts. It seeks to provide a clear and precise understanding of legal rules and principles.

Sociological Jurisprudence:

Key Figures: Roscoe Pound.

Core Ideas: Sociological jurisprudence focuses on the societal and social aspects of law. It examines the impact of law on society and aims to address social issues through legal means.

Historical School:

Key Figures: Friedrich Carl von Savigny.

Core Ideas: The historical school emphasizes the importance of the historical development of laws and their connection to a nation's culture and traditions.

Legal Realism:

Key Figures: Oliver Wendell Holmes Jr., Jerome Frank.

Core Ideas: Legal realism emphasizes that law is not just a set of abstract principles but is influenced by the personal values and experiences of judges. It highlights the role of judges' discretion and practical consequences in legal decision-making.

Natural Law School:

Key Figures: Aristotle, Thomas Aquinas.

Core Ideas: Natural law is based on moral and ethical principles inherent in human nature. It suggests that laws should conform to these moral standards to be just and valid.

Legal Positivism:

Key Figures: John Austin, H.L.A. Hart, Bentham.

Core Ideas: Legal positivism asserts that the validity of a law depends solely on its enactment by a recognized authority. The morality of a law is irrelevant to its legality.

 

 Analytical, Historical, Philosophical and Sociological Schools of Jurisprudence.

Analytical School of Jurisprudence:

·         Key Idea: The Analytical School emphasizes the logical analysis of legal language and concepts to provide a clear and precise understanding of legal rules.

·         Focus: It focuses on breaking down legal concepts into their constituent elements and analyzing the structure of legal propositions.

·         Key Figures: Prominent figures associated with this school include Jeremy Bentham and John Austin.

·         Relevance: Analytical jurisprudence seeks to clarify legal language and provide a foundation for a systematic and logically consistent understanding of legal principles.

Historical School of Jurisprudence:

·         Key Idea: The Historical School highlights the importance of the historical development of laws and their connection to a nation's culture and traditions.

·         Focus: It places significant importance on the evolution of legal systems and the influence of historical factors on the shaping of legal principles.

·         Key Figures: Friedrich Carl von Savigny is a key figure associated with the Historical School.

·         Relevance: This school contributes to an understanding of the cultural and historical contexts that underlie legal systems and the development of legal norms.

Philosophical School of Jurisprudence:

·         Key Idea: The Philosophical School of jurisprudence explores the fundamental philosophical questions related to law, morality, justice, and the nature of legal systems.

·         Focus: It delves into abstract and ethical considerations surrounding the law, often addressing issues like the relationship between law and morality.

·         Key Figures: Various philosophers and legal scholars have contributed to this school, including Aristotle, Thomas Aquinas, and Immanuel Kant.

·         Relevance: This school provides a framework for considering the ethical and moral dimensions of legal principles and their implications for society.

Sociological School of Jurisprudence:

·         Key Idea: Sociological jurisprudence focuses on the societal and social aspects of law, examining how the law interacts with and affects society.

·         Focus: It considers the impact of law on social phenomena, social change, and the role of law in addressing social issues.

·         Key Figures: Roscoe Pound is a significant figure associated with the Sociological School.

·         Relevance: Sociological jurisprudence offers insights into the relationship between law and society, emphasizing the need for law to adapt to changing societal needs and dynamics.

 

Theories of Law

Legal theories, also known as theories of law, are overarching conceptual frameworks that provide explanations and perspectives on the nature, purpose, and functioning of the law. These theories help scholars and practitioners understand the underlying principles and justifications for legal systems. Here are some key theories of law:

1.      Positivism Theory:

Key Idea: Positivism asserts that the validity of law is determined by its source. It separates law from morality and emphasizes the importance of explicit legal rules.

Key Figures: John Austin, H.L.A. Hart.

Relevance: Positivism is influential in understanding the formal structure of legal systems and the authority of legal norms.

2.      Historical and Anthropological Theory of Law:

Key Idea: This theory explores the historical and cultural origins of legal systems, considering how laws develop in response to societal needs and values.

Relevance: It helps in understanding the evolution of legal norms and their adaptation to cultural contexts.

3.      Kelsen’s Pure Theory of Law:

Key Idea: Kelsen's theory focuses on the structure and hierarchy of legal norms, emphasizing a "pure" analysis of law without incorporating moral considerations.

Key Figures: Hans Kelsen.

Relevance: Kelsen's theory provides a systematic framework for understanding the internal coherence of legal systems.

4.      Economic Theory of Law:

Key Idea: This theory examines how economic principles, such as efficiency and resource allocation, influence the creation and enforcement of legal rules.

Relevance: It offers insights into the economic consequences of legal decisions and the impact of legal rules on market dynamics.

5.      Sociological Theory of Law:

Key Idea: Sociological theories explore the relationship between law and society, examining how social factors influence legal development and enforcement.

Relevance: Understanding the social context helps in analyzing the effectiveness and legitimacy of legal systems.

6.      Modern Realism:

Key Idea: Modern legal realism emphasizes the practical impact of law and judicial decisions. It acknowledges the influence of subjective factors on legal outcomes.

Relevance: Realism contributes to a nuanced understanding of legal decision-making and the role of judges in shaping the law.

7.      Natural Theory of Law:

Key Idea: Natural law theory posits that there are inherent moral principles that form the basis of legal norms. It emphasizes a connection between law and morality.

Relevance: It provides a moral foundation for critiquing and evaluating legal systems based on ethical principles.

These theories offer diverse perspectives for analyzing and understanding the nature, purpose, and functioning of law. Each theory contributes to the broader discourse in legal philosophy.

 Meaning and Definition of Law

Meaning of Law:

Law refers to a system of rules and principles that are established and enforced by governmental authority to regulate and govern human conduct within a given society. These rules are designed to maintain order, resolve disputes, protect individual rights, and promote justice. Laws can cover a wide range of areas, including criminal, civil, administrative, and constitutional matters.

Definition of Law:

Law can be defined as a body of rules, standards, and norms that are formulated by a legitimate authority, such as a government or a legal system, to guide and control the behavior of individuals and organizations in society. These rules are enforced through various means, including sanctions, penalties, and the judicial system. Law serves as a means of social control, providing a framework for resolving conflicts and ensuring the peaceful coexistence of individuals and groups within a community.

Austin: Law is the command of the sovereign. Law is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subject. 

Kelson: Law is the desychologized command.

Savigny: Law is the rule whereby the invisible borderline is fixed within which the being and the activity of each individual obtains a secure and free space.

Salmons: Law is the body of principles, recognized and applied by the state in the administration of justice.

 The Nature and Function of Law

Nature of Law:

1.      Regulatory Framework: Law is a system of rules and regulations that govern human behavior. It provides a structured framework for individuals and groups to interact with each other and with the state.

2.      Normative and Prescriptive: Law prescribes what people should and should not do. It sets standards of conduct and defines what is permissible and impermissible.

3.      Authoritative: Law is created and enforced by a legitimate authority, such as a government, legal system, or relevant institution. The authority of law derives from the state's power.

4.      Dynamic and Evolving: The law is not static; it evolves to reflect changes in society, technology, and values. Legal systems adapt to meet the needs of the time.

5.      Multi-faceted: Law encompasses various branches, including criminal, civil, administrative, and constitutional law, each with its specific rules and functions.

Functions of Law:

1.      Social Order: One of the primary functions of law is to establish and maintain social order. It provides a structured framework within which individuals can conduct their activities peacefully and predictably.

2.      Conflict Resolution: Law serves as a mechanism for resolving disputes and conflicts. Courts and legal procedures provide a forum for settling disagreements and upholding justice.

3.      Protection of Rights: Law safeguards individual rights and liberties. It ensures that people are protected from harm and that their freedoms are upheld.

4.      Justice: Law is a means of achieving justice in society. It provides a framework for holding wrongdoers accountable and for redressing grievances.

5.      Social Engineering: Law can be used to bring about social change and reform. Legislatures can enact laws to address societal issues, such as environmental protection or civil rights.

6.      Regulation and Governance: Law regulates various aspects of human life, from business and commerce to family and property matters. It provides the rules for governing these interactions.

7.      Deterrence and Punishment: Law deters undesirable behavior through the threat of legal consequences and imposes punishments on those who violate the law. This function aims to discourage wrongdoing.

8.      Legitimacy and Consent: Law secures the consent and legitimacy of the government. It provides a basis for the authority of the state and its legal institutions.

9.      Predictability and Certainty: Law offers predictability and certainty in human interactions. People can rely on the law to guide their actions and expectations.

10.  Social Values and Morality: Law reflects and shapes societal values and morals. Legal systems often incorporate prevailing ethical standards into their rules.

Understanding the nature and function of law is essential for both legal professionals and citizens as it enables the fair and just operation of society. It also serves as a foundation for critical thinking about the role of law in shaping and regulating human behavior.

 

 The Purpose of Law

The purpose of law is multi-faceted and serves a variety of important functions in society. These purposes are designed to maintain law and order, protect individual rights, and promote justice.

PLATO, a Greek Philosopher, explains the purpose of law: “Mankind must either give themselves a law and regulate their lives by it or live no better than the wildest of the wild beasts”

Here are the key purposes of law:

Social Order:

One of the primary purposes of law is to establish and maintain social order. It provides a structured framework that guides human behavior, enabling individuals and groups to interact with predictability and reduced conflict.

Conflict Resolution:

Law serves as a mechanism for resolving disputes and conflicts peacefully and fairly. It provides a formalized system for adjudicating disagreements, whether in civil, criminal, or administrative matters.

Protection of Rights:

Law safeguards individual rights and liberties, ensuring that people are protected from harm and that their freedoms are upheld. This includes protecting rights such as freedom of speech, property rights, and the right to a fair trial.

Justice:

Law is a means of achieving justice in society. It provides a framework for holding wrongdoers accountable for their actions and for redressing grievances, aiming to ensure fairness and equity.

Social Engineering:

Legal systems can be used to bring about social change and reform. Legislatures can pass laws to address pressing societal issues, such as environmental protection, public health, or civil rights.

 

 

Regulation and Governance:

Law regulates various aspects of human life, from business and commerce to family and property matters. It provides the rules and regulations for governing these interactions and activities.

Deterrence and Punishment:

Law deters undesirable behavior through the threat of legal consequences. It also imposes punishments on those who violate the law, serving as a deterrent to potential wrongdoers.

Legitimacy and Consent:

Law secures the consent and legitimacy of the government and its legal institutions. It provides a basis for the authority of the state, helping to maintain political stability and public trust.

Predictability and Certainty:

Law offers predictability and certainty in human interactions. People can rely on the law to guide their actions and expectations, reducing uncertainty and chaos.

Social Values and Morality:

Law reflects and shapes societal values and morals. Legal systems often incorporate prevailing ethical standards into their rules, promoting the shared values of a community.

Safety and Public Welfare:

Law is instrumental in ensuring the safety and welfare of the public. It addresses public health, safety, and environmental concerns, protecting citizens from harm.

Economic Stability:

Legal systems help maintain economic stability by regulating financial markets, contracts, and property rights, providing a secure environment for commerce and investment.

These purposes collectively contribute to the functioning and well-being of society. The law is a foundational element of a just and orderly social structure, and it provides a framework within which individuals can live, work, and interact in a fair and equitable manner.

The Classification of Law

Law can be classified into various categories or classifications based on different criteria, including its source, scope, nature, and application. Here are some common classifications of law:

Criminal Law:

Nature: Criminal law pertains to offenses and crimes committed against the state or society. It defines illegal actions, their punishments, and the procedures for prosecuting and convicting offenders.

Civil Law:

Nature: Civil law deals with private disputes between individuals or entities. It includes areas such as contracts, property, family law, and personal injury cases.

Public Law:

Scope: Public law governs the relationship between individuals and the government. It includes constitutional law, administrative law, and criminal law, among others.

Substantive Law:

Nature: Substantive law defines and prescribes individuals' rights, duties, and legal responsibilities, as well as the consequences of violations.

Procedural Law:

Nature: Procedural law outlines the processes, rules, and methods for enforcing substantive law. It governs legal proceedings, evidence, and the operation of courts.

International Law:

Scope: International law regulates the conduct of states and international organizations in their interactions with each other. It includes treaties, customary law, and principles of statehood.

Domestic Law:

Scope: Domestic law refers to the laws and regulations of a single country. It is distinct from international law, which governs relations between states.

Customary Law:

Source: Customary law is based on long-standing practices and traditions within a particular community or group. It is recognized and enforced because of its customary acceptance.

Constitutional Law:

Scope: Constitutional law establishes the fundamental principles of government, the structure of government, and the rights of citizens as defined in a constitution.

Administrative Law:

Scope: Administrative law governs the actions and decisions of administrative agencies and bodies. It addresses matters such as regulatory compliance and administrative procedures.

Environmental Law:

Scope: Environmental law regulates issues related to the environment, such as pollution, conservation, and natural resource management.

Family Law:

Scope: Family law deals with matters related to marriage, divorce, child custody, adoption, and other family-related issues.

Contract Law:

Scope: Contract law governs the formation, performance, and enforcement of agreements or contracts between parties.

Tort Law:

Scope: Tort law addresses civil wrongs or injuries caused by one party to another. It includes areas such as negligence, personal injury, and defamation.

These classifications provide a framework for understanding the different types and categories of law, each with its specific scope, source, and application. Legal systems around the world may incorporate various combinations of these classifications, depending on their historical, cultural, and legal traditions.

 

 

Equity, Law and Justice

Equity:

Equity is a branch of law that emphasizes fairness and the application of moral and ethical principles to achieve justice. It provides remedies and relief, such as injunctions or specific performance, to address legal disputes and situations where the strict application of common law principles may lead to harsh or unjust outcomes.

Law:

Law refers to a comprehensive system of rules and regulations that govern human conduct within a society. It includes both statutory law, which is created by legislatures and codified in written statutes, and common law, which is developed through court decisions and precedent. Law aims to provide a framework for regulating behavior, resolving disputes, and maintaining order in society.

Justice:

Justice is a moral and ethical concept that encompasses the fair and impartial treatment of individuals and the protection of their rights. It involves ensuring that individuals receive what they are due, based on principles of fairness and ethics. The pursuit of justice is a fundamental goal of the legal system, which seeks to prevent injustices, provide equal access to remedies, and uphold moral and ethical values in the application of the law.

 

Theory of Sovereignty.

The theory of sovereignty is a fundamental concept in political science and jurisprudence that addresses the ultimate and supreme authority within a specific territory or state. Sovereignty theory explores the origin, nature, and characteristics of sovereignty. Several key elements are associated with the theory of sovereignty:

1.      Supreme Authority: Sovereignty represents the highest and most absolute authority within a defined territory. This authority is not subject to control or interference by external powers.

2.      Exclusivity: Sovereignty is exclusive within a given territory, meaning that there can only be one supreme authority in that area. It implies that no other entity, internal or external, can exercise the same level of authority.

3.      Territoriality: Sovereignty is inherently linked to a specific geographic area. The authority of a sovereign entity is confined to the borders of its territory.

4.      Independence: A sovereign state or entity is independent and self-governing, which means it has the autonomy to make decisions and laws without external interference or domination.

5.      Permanence: Sovereignty is generally considered to be permanent and enduring. It doesn't fluctuate or change unless there is a fundamental alteration in the state's status.

6.      Legal Authority: Sovereign entities have the legal authority to create and enforce laws, establish a legal system, and make binding decisions on behalf of the population within their territory.

7.      Origin: The theory of sovereignty raises questions about the source of sovereignty. It can be derived from various sources, such as divine authority, popular will, or historical evolution. Different theories of sovereignty posit different origins.

8.      Multiple Levels: In some cases, sovereignty theory recognizes the existence of multiple levels of sovereignty, such as federal systems where there's both a central sovereign authority and regional sovereign entities with certain powers.

9.      Limitations: While sovereignty implies supreme authority, it can also be subject to limitations, both internal (e.g., constitutional constraints) and external (e.g., international agreements and treaties).

The theory of sovereignty has evolved over time and continues to be a subject of debate in political and legal philosophy. The concept of sovereignty has important implications for the organization and functioning of governments, the conduct of international relations, and the protection of individual rights.

 

 

UNIT – 2

sources of Law

Legal Sources:

Legislation:

-        Defined as laws enacted by a legislative body.

-        Typically codified in written statutes.

-        Primary source of law in many legal systems.

Precedent (Case Law):

-     Comprises legal decisions made by courts.

-     Establishes legal principles and provides guidance for future cases.

-     Crucial source of law in common law systems.

Custom:

-     Refers to established practices with legal force through tradition.

-     Often unwritten and community-specific.

-     Valid when it meets specific requirements (ancient, certain, reasonable, continuous).

Constitutions:

-     Fundamental legal documents setting the government framework and citizens' rights.

-     Highest form of law in many countries.

Treaties and Agreements:

-     Formal agreements between states or international organizations.

-     Can become part of a nation's domestic law when ratified and implemented.

Administrative Regulations:

-  Issued by administrative agencies.

-  Interpret and implement statutory law, addressing specific issues.

 

Historical Sources:

Ancient Texts and Manuscripts:

-     Valuable insights into historical legal principles and practices.

-     Include ancient legal codes, commentaries, and treaties.

 

Historical Records:

-     Provide historical legal accounts and court records.

-     Illuminate how legal disputes were resolved in the past.

Archaeological Discoveries:

-     Inscriptions and artifacts offer insights into ancient legal practices.

Historical Legal Commentaries:

-     Writings by legal scholars and philosophers provide historical legal theory.

Historical Legal Cases:

-     Significant cases from history, involving legal principles or constitutional issues.

-     Valuable for understanding legal development.

 

Legislation

Definition of legislation

Legislation is derived from two Latin words, Legis + Lation. Legis = Law & Lation = to make. Etymologically, legislation means the making, putting or the setting of law.

Legislation refers to laws or statutes enacted by a legislative body, such as a parliament or congress. These laws are formal rules and regulations that have been approved through a legislative process.

John Austin: Legislation is a command issued by a sovereign authority.

Salmond: Legislation is the source of law which consists in the declaration of legal rules by a competent authority.

Gray: Legislation is the formal utterances of the legislative organs of the society

Holland: Legislation is a rule of human conduct set by some external authority independent of the will of those whom it commands.

Hans Kelsen: Legislation is a modification of a legal norm.

Roscoe Pound: Legislation is social engineering.

Classification of legislation

Legislation is mainly of two kinds, they are:

A.    Supreme and Subordinate Legislation

Supreme Legislation	Subordinate Legislation
Austin defines: “Supreme Legislation proceeds from the supreme or sovereign power in the state, and which is therefore incapable of being repealed, annulled or controlled by any other legislative authority.”	Austin defines: “subordinate legislation is that which proceeds from any authority other than the sovereign power, and is therefore dependent for its continued existence and validity on some superior or supreme authority”
Supreme legislation is one, and parliament has the supreme authority.	Subordinate legislation is of several kinds. All other forms of legislative activity recognized by the law or subordinate legislation.
Supreme legislation consists of laws with the highest legal authority, such as constitutional laws.	Subordinate legislation includes regulations, bylaws, and rules created under the authority of higher laws. Subordinate legislation is subject to the constraints and authority of supreme legislation.
It cannot be repealed, annulled or controlled by any other legislative authority, except parliament.	It can be repealed, annulled or controlled by parliament.

B.     Direct and Indirect Legislation

Direct Legislation: Direct legislation involves the explicit and straightforward statement of legal provisions. It directly communicates the law and its requirements.

Indirect Legislation: Indirect legislation empowers government agencies or authorities to create detailed rules, regulations, or directives within the framework of the law. These agencies are tasked with implementing and clarifying the provisions of the law.

Principles of Statutory Interpretation.

1.      Literal Rule: Interpret the words of the statute in their plain and ordinary meaning.

2.      Golden Rule: Adjust the literal interpretation when it leads to absurd results.

3.      Mischief Rule: Determine the purpose or "mischief" the statute intended to address and interpret accordingly.

4.      Purposive Approach: Interpret the statute to align with its underlying policy and objectives.

5.      Teleological Interpretation: Consider the broader social and political context to achieve statutory goals.

6.      Contextual Interpretation: Analyze the statute within its legal framework, including related laws.

7.      Ejusdem Generis: When specific and general terms are used, interpret the general term in line with the specific ones.

8.      Noscitur a Sociis: Interpret ambiguous words by considering their associates or context.

9.      Expressio Unius Est Exclusio Alterius: If certain things are mentioned in the statute, others not mentioned are presumed to be excluded.

10.  Presumption Against Retroactivity: Statutes are presumed to apply to future actions unless explicitly stated otherwise.

 

Precedent

Definition of Precedent

Precedent, also known as case law or judicial precedent, refers to the legal principle that previous court decisions and rulings should guide and influence the decisions of future cases with similar legal issues. It is a foundational concept in common law legal systems.

Salmond gives two meanings of ‘Precedent’.  “The phrase ‘Doctrine of precedent’ has two meanings. In the first, which may be called the ‘loose meaning’, the phrase means merely that precedents are reported, may be cited, and will probably be followed by the courts. This was the doctrine that prevailed in England until the 19^th century, and it is still the only sense in which doctrine of precedent prevails on the continent. In the second, the ‘strict meaning’, the phrase means that precedents not only have great authority but most (in certain circumstances) be followed. This was the rule developed during the 19^th century and completed in some respects during the 20th”

 

Kinds of Precedent

1.      Authoritative Precedent and Persuasive Precedent:

Authoritative Precedent: A precedent set by a higher court within the same jurisdiction, binding lower courts to follow its decision.

Persuasive Precedent: A precedent from a different jurisdiction or a lower court that is not binding but may be considered by the court in making its decision.

2.      Original Precedents and Declaratory Precedent:

Original Precedent: A precedent created in the course of deciding a novel or unique legal issue, often setting a new legal principle.

Declaratory Precedent: A precedent that declares or interprets existing law rather than creating a new legal principle, typically reinforcing established legal principles.

 

Stare Decisis

Stare Decisis is a legal doctrine that means "to stand by things decided." It requires lower courts to follow the legal principles and decisions established by higher courts in similar cases. The doctrine promotes consistency and predictability in the legal system by treating past decisions as binding authority.

 

Original and Declaratory Precedents

Original Precedents:

Original precedents occur when a court establishes a new legal principle or interpretation in a case that has not been addressed in earlier cases. This decision creates new legal precedent where none previously existed.

Declaratory Precedents:

Declaratory precedents reaffirm or clarify an existing legal principle or interpretation. They do not establish a new legal principle but provide guidance on the application of an existing one.

Original Precedents	Declaratory Precedents
An original precedent is one which creates and applies a new rule.	A declaratory precedent is one which is merely the application of an already existing rule of law.
It creates new rule.	It follows it, because it is already law.
The number of original precedents is small.	The number of declaratory precedents is more numerous.
Original precedents develop in law in the country.	Declaratory precedence merely follows the original precedence.
Original precedent is a new law created and followed in future.	Declaratory precedent is already a declaratory law and follows in present and in future.
Original precedent is greater than declaratory precedents.	Declaratory precedent is also a good source of law. However, when it is compared with original precedent, it comes second to it.
There is a heavy burden and task mental tension on the judge who pronounces original precedents to interpret the new situations.	The judge, who follows declaratory precedents, feels less strain and task. Because he passes on the road already built in. It is merely the application of an already existing rule of law.
Examples: (a)    Bhimsingh Vs. JK Govt. in this Hebeas Corpus case Bhimsingh, an M.L.A. was detained by JK police. The supreme court ordered state government to release him and to pay rupees 50,000/- towards compensation. It is the best example for the original precedent. (b)    Ashby vs. white case is an example of original precedent for “injuria sine damnum.”	Example: Bhavasagar Vs. State of A.P. 1993. The high court of Andra Pradesh followed the rule enunciated in Bhimsingh’s case. Bhavasagar, a merchant in Hyderabad, was arrested by police illegally. Disposing the Hebeas corpus petition, the High Court ordered the state to release bhavasagar and to pay rupees 20,000/- towards the compensation. It is the best example for the declaratory precedent.

 

Authoritative and Persuasive Precedents.

Authoritative Precedents:

Authoritative precedents are binding on lower courts. These precedents must be followed and applied in subsequent cases with similar legal issues. They come from higher courts within the same jurisdiction.

Persuasive Precedents:

Persuasive precedents are not binding on lower courts but may be considered and used as guidance. They come from sources outside the jurisdiction or from lower courts, and their application is at the discretion of the court.

Authoritative Precedent	Persuasive Precedent
Meaning: Authoritative precedent, as the name itself implies, comes from the Superior Court, and is followed its subordinate courts.	Meaning: A persuasive precedent is one which the judges are under no obligation to follow.
A Judicial precedent of the Supreme Court of India is authoritative for all the courts in India.	The foreign judgement is a persuasive precedent.
It must be followed by the inferior courts whether they approve of it or not. They are bound to follow it.	The judges peruse and interpret and take the assistance of persuasive precedent, but they are not bound to follow it.
A judicial precedent of the Andhra Pradesh High Court is authoritative in relation of other subordinate courts in Andra Pradesh.	A decision of Tamil Nadu or Karnataka High Court in relation to the Andhra Pradesh High Court is only persuasive.
An authoritative precedent has a legal claim, recognition, influence and binding force on the inferior courts.	A persuasive precedent has no legal claim, influence and binding force. It depends for its influence upon its own merits.
Authoritative precedents are legal sources of law.	Persuasive precedents are merely historical.

 

 

Custom

Definition of Custom

Custom refers to established and accepted practices within a community or society that have acquired the force of law through long-standing tradition. Customary law is often unwritten but is based on the practices of a particular community.

SALMOND quotation: “custom is to society what law is to the state.” 

 

Kinds of Custom

customs are divided into two, which are legal custom and conventional custom. Legal custom is further divided as:

Local Custom:

Local customs are specific to particular regions or communities within a legal jurisdiction. These customs may vary from one locality to another and are considered binding within their respective regions.

Example:

(a)    In Broach and other Gujarat districts, waqf property may be alienated by Mohammendan. It is a custom prevail in those districts. In fact, waqf property is inalienable according to Mohammendan law.

(b)   The Hindus residing in eastern Bengal follow the right of pre-emption of Islam.

General Custom:

General customs are practices that apply broadly and are accepted as customary law throughout a particular legal jurisdiction. They have a wide geographic scope and impact.

Examples: kanyadanam, mangalasutradharana, saptapadi are treated as completion of the marriage. These are followed in India. Therefore, they are general customs.

 

Custom and Prescription

Custom refers to established and accepted practices within a community or society that have acquired the force of law through long-standing tradition. It often forms the basis of customary law.

Prescription is a form of custom that has acquired legal force through prolonged and uncontested practice, indicating that it is obligatory.

Custom	Prescription
Meaning: a rule of conduct is obligatory on those within its scope. A valid custom has the force of law. “Custom is to society what law is to the state.” A valid custom must be immemorial antiquity, certain and reasonable.	Meaning: the vesting of a right by reason of lapse of time. Negative prescription is the  divesting of a right by the same process.
Custom is not limited to a restricted period. It is a long practice.	Prescription is limited to a limited period, i.e., 20 years, 30 years, etc.
Custom operates as a source of law.	Prescription operates as a source of right.
Custom touches all branches of human life, viz. Marriage, adoption, business, ceremonies, etc.	Prescription touches to the immovable property, viz. way to land, possession on the property for more than prescribed period by statute; right to fishing, right to water, etc.
A custom is a genus.	The law of prescription is a branch of custom i.e., it is a species of custom.
Custom may be local or prevail enter country.	Prescription, generally, is limited to a person, group of persons, family, etc. It was originally personal custom.
After the death of grandfather, all the grandsons and granddaughters are entitled to devolve the properties of grandfather.	A land owner has certain land. All the villagers use a small extent of his land as the way from time immemorial. It is a prescriptive right of way vested in the villages.

 

 

Requisites of a valid custom

To be legally valid, a custom should typically meet the following requirements:

1.      Reasonableness - The custom should be reasonable and not against public policy or morality.

2.      Conformity with statute law - The custom must not conflict with existing statutory law; it should be in harmony with legislative enactments.

3.      Observance as of right - The custom should be observed as a matter of right, not merely out of convenience or habit.

4.      Immemorial antiquity - The custom should have existed for such a long time that its origin cannot be traced, indicating its long-standing acceptance in the community.

5.      Certainty - The custom should be clear and definite, leaving no room for ambiguity or confusion in its interpretation.

6.      Consistency - The custom must be consistent and uniform in its observance, without significant variations that could undermine its reliability as a legal norm.

Relative merits and demerits of Legislation, Precedent and Custom as a source of Law.

Source of Law	Merits	Demerits
Legislation	Provides clear, formal, and up-to-date rules. - Can adapt to changing societal needs and developments.	May be rigid and slow to respond to emerging issues. - Can lack context for specific cases.
Precedent	Promotes consistency and predictability. - Offers practical guidance based on past decisions.	Can lead to complexity and inconsistencies if not applied uniformly.
Custom	Reflects the practices and traditions of the community. - May provide practical, time-tested rules.	Can be unwritten and difficult to determine. - May not always align with modern needs and values.

 

 

Codification

Codification refers to the systematic organization of laws and legal principles into a comprehensive legal code or statutory framework. It involves the compilation of legal rules and regulations into a structured and accessible format.

 

Advantages and disadvantages of codification.

Advantages of Codification:

1.      Clarity and Accessibility: Codified laws are typically organized and easy to access, making legal rules more understandable for both legal professionals and the general public.

2.      Uniformity: Codification can help ensure consistent application of the law, reducing potential inconsistencies that might arise from relying solely on judicial decisions.

3.      Efficiency: A well-organized legal code can streamline legal processes, such as research, drafting, and interpretation, leading to more efficient legal practice.

4.      Legal Reform: Codification can provide an opportunity for legal reform, allowing outdated or contradictory laws to be reviewed and revised.

Disadvantages of Codification:

1.      Rigidity: A codified legal system can be rigid and less adaptable to changing societal norms and values. Amendments or revisions to the code can be slow and cumbersome.

2.      Complexity: Extensive legal codes may become overly complex and voluminous, potentially leading to difficulties in interpretation and application.

3.      Inflexibility: Codified laws may not effectively address emerging legal issues or technologies, as they are based on existing legal norms and may not foresee future developments.

4.      Resistance to Change: The legal community and society may resist changes to a well-established legal code, making it challenging to adapt to evolving needs.

The effectiveness of codification depends on the specific legal system and its capacity to balance these advantages and disadvantages.

UNIT - 3

Persons

In the context of jurisprudence, "persons" refer to legal entities with legal rights and responsibilities. Persons can be individuals, corporations, idols, idiots, companies, organizations, or entities recognized by the law.

Legal meaning of ‘person’ differs from ordinary meaning. In jurisprudence, the term person gives a wider meaning. It does not coincide with ordinary meaning (i.e., Person is human being, who has peculiar characteristics, i.e., the power of thought, speech and choice).

SALMOND: “so far as legal theory is concerned; a person is a being whom the law regards as capable of rights or duties. Any being that is so capable is a person, whether in human being or not, and not being that is not so capable is a person, even though he can be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition”.

GRAY: “In legal theory, person means any entity to which right and duties may be attributed”.

Ex: Corporation, Idols, Idiots, Companies, etc. These are legal fictitious person.

Nature of personality

In jurisprudence, the nature of personality is a concept that relates to the legal recognition and attributes granted to individuals or entities. It involves understanding the legal capacity, rights, and responsibilities that come with being a legal person. Here are key aspects of the nature of personality:

1.      Legal Personhood:

Legal capacity, the ability to sue and be sued, own property, and enter into contracts are essential attributes of legal personhood.

2.      Rights and Duties:

Legal persons have the capacity to hold rights, such as the right to life, liberty, and property. They also bear legal duties and responsibilities, ensuring accountability within the legal framework.

3.      Recognition by the Law:

The nature of personality involves being recognized as a legal person by the legal system. This recognition is crucial for individuals and entities to participate fully in legal processes.

4.      Capacity for Legal Actions:

Legal persons have the capacity to take legal actions, including initiating lawsuits, entering into contracts, and engaging in legal transactions.

5.      Autonomy and Decision-Making:

Legal persons, especially individuals, possess legal autonomy, allowing them to make decisions regarding their own lives and affairs within the bounds of the law.

6.      Protection of Rights:

The nature of personality entails the protection of fundamental rights and liberties granted to individuals, ensuring a legal framework that safeguards their interests.

7.      Legal Recognition of Entities:

Besides natural persons, certain entities like corporations, trusts, and other associations can also be recognized as legal persons, allowing them to operate within the legal system.

Understanding the nature of personality is crucial for comprehending how the legal system recognizes and attributes legal rights and responsibilities to individuals and entities, thereby shaping the legal landscape.

 

Legal Status of Lower Animals, Dead Persons and Unborn persons

A.    LEGAL STATUS OF LOWER ANIMALS:

Man is treated as natural person as well as legal person. But the animals are not treated as natural persons. The animals do not possess any rights or duties. They are also objects, just like other things, viz. Buildings, carts, books. They do not possess the qualities of subjects like men. If they do any mistake or wrong, they will not be punished but their owner will be prosecuted.

In olden days, when an animal cause injury to men, it was killed by stoning. Later the system was changed into ‘distrained damage feasant’. It means the animal Shall be detained until the owner of it pays the compensation. It is still in practice in our villages. ‘Hominum causa omnejus constitutum’ it means the law is made for men, and allows no fellowship of bounds of obligation between them and the lower animals. The responsibility of the owners of animals for damage done by them has developed along two main lines. One as a branch of the law of trespass; and the other a branch of law which imposes upon the owner of dangerous animal of thing a duty to take measures to prevent from doing damages. The liability for the damage done by animals can be studied under the following four heads:

1.      The scienter rule

Means “The knowledge rule”. Under this rule every owner of the animal must know the nature of the animal. It is his duty. For the purpose of this rule, the animals are divided into two groups:

a)   First group – Animals dangerous by nature.

b)   Second group – Animals harmless by nature.

It is conclusive and irrebuttable presumption that the keeper of the animals of the first group knows of their dangerous nature and must take most appropriate steps to safeguard the animals not to cause any harm to others by them.

 

2.      Cattle trespass

Cattle includes bulls, cows, sheeps, pigs, horses, asses etc. Dogs and cats are not included in this term. The Liability for cattle trespass is strict. Scienter or negligence on the part of the owner of the cattle is not required to be proved. Cattle trespass act imposes strict liability on the keener of the cattle, which trespasses to others land.

 

3.      Ordinary liability in torts

The thoughts of assault and battery can be committed by setting a dog on a passerby. If the keeper of animals does not properly control his animals on the highway, thus causing fear in the minds of the passers of highway, shall be held guilty under the law of torts.

 

4.      Criminal liability

If a person uses animals to treat or cause injury, that animal is list not punished, but the person, who incited it will be punished.

 

B.     LEGAL STATUS OF DEAD PERSONS:

The legal entity of a man starts with his birth and ceases with his death. In the eye of the law, dead men are no longer persons. Dead persons do not have interest in the property. Property is intended for the use of the living, not for the dead men: “Actio personalis, moriture cum persona”. This maxim means death destroys the right of action. In this connection, the position of dead man can be considered in view of three points - civil, criminal and tort.

a)      Civil – in any suit, if a plaintiff or defendant dies, his legal representatives may, by an application to the court, be admitted as plaintiff or defendant respectively. The suit will be continued.

b)      Criminal – in criminal law, as soon as the accused is dead, the proceedings will be stopped, if there is only one accused in the offense. If there are several accused among them one is death, the criminal proceedings are stopped in respect of the dead person, and the proceedings will be continued in respect of other accused.

c)      Tort - “Actio personalis, moriture cum persona” which means “A personal right of action dies with the person”, and it does not apply in case of torts and contracts.

 

C.    LEGAL STATUS OF UNBORN PERSONS:

A dead man has no legal status. But an unborn person is treated as a legal person.  A child in the mother’s womb is a legal person.

Coke says: “The law in many cases hath consideration of him in respect of apparent expectation of his birth.”

“Nosciturus pro jam nao habetur” in almost all countries, for the purpose of heritance, the unborn person is treated as a legal heir and legal person. Of course, there are some restrictions imposed by the state. Therefore, for hundreds of years, the devolution of property continued, and will be continuing in future too.

Section 13 of the Transfer of property act, 1882 explains about transfer for benefits of unborn person.

Conditions: The conditions required to create an interest in favour of an unborn person are:

1.       There must always be an estate for life, or for any shorter period preceding the interest in favour of such person.

2.       The unborn person should come into existence on or before the expiry of the prior estate.

3.       The whole remainder in the estate must be conferred on the unborn person.

4.       The vesting of the estate must not be postponed beyond a life or lives is being and the minority of the unborn person, that is to say, it cannot be deferred to a long period than what is necessary for him to attend majority.

 

Legal Persons

Legal Persons are entities recognized by the law as having legal rights and responsibilities. These entities can be individuals, organizations, or entities that the law acknowledges as having legal personality. Entities other than natural persons, recognized by the law as having legal personality, enabling them to hold rights, duties, and liabilities distinct from the individuals who compose or manage them.

Legal persons include corporations, government bodies, nonprofit organizations, and other entities granted legal recognition.

 

Corporations

Corporations are legal entities formed under the law, recognized as having a separate legal personality from their owners or shareholders. They are endowed with legal rights and responsibilities, allowing them to own property, enter into contracts, sue, and be sued. The concept of limited liability is often associated with corporations, wherein the personal assets of shareholders are generally protected from the corporation's debts and obligations. Corporations play a significant role in commerce, business, and various sectors of the economy, contributing to economic activities and development.

1.      In the eyes of law, it is legal person.

2.      The members of company are called shareholders.

3.      The administration of the company shall be maintained by the directors, managing directors, who are elected by the shareholders.

4.      The shareholders of the company have no liability or rights over the debts, properties, losses, etc. of the company except to the extent of their share capital. Their personal properties are not liable for the losses of the company.

5.      If one or more shareholders die, the company continues its existence. It will survive until the last shareholder remains in existence.

6.      It has permanent legal entity.

7.      The shareholders have no such liability of agency. They are liable to the extent of their shares amount only.

8.      It can accumulate more money than can perform vast business than a partnership firm.

9.      Criminal provisions are imposed by the Companies Act on the defaulting executive body of the company.

 

Purpose of Incorporation

The Purpose of Incorporation is the process through which a business entity (corporation) is created and recognized as a separate legal person by the law. Incorporation provides several advantages, such as limited liability for shareholders, perpetual existence, and the ability to own property and enter into contracts. The primary purpose is to separate the legal identity of the corporation from its owners, which protects their personal assets from corporate liabilities. The purpose of incorporation are:

-       Limited Liability: To provide owners (shareholders) with limited liability, protecting their personal assets from the business's debts and obligations. Shareholders generally risk only the amount invested in the corporation.

-       Accumulation of large amounts: Facilitates the accumulation of large amounts of capital by issuing shares, allowing corporations to undertake substantial projects and investments.

-       Profits and losses: Enables the distribution of profits among shareholders based on their ownership interests, while losses are generally limited to the amount invested.

-       Business relation with traders and creditors: Enhances the ability to engage in business transactions, enter into contracts, and establish relationships with suppliers, customers, and creditors as a separate legal entity.

-       Taxation: Provides potential tax advantages, such as corporate tax rates, deductions, and other incentives, influencing the overall tax burden on the business.

-       Administration: Simplifies administrative processes by establishing a clear organizational structure with officers, directors, and shareholders, streamlining decision-making and management.

-       Permanence: Ensures continuity and perpetuity of the business beyond the lifetimes of individual shareholders. The corporation can exist indefinitely, regardless of changes in ownership.

-       Criminal liabilities: Clarifies the allocation of criminal liabilities, allowing the corporation to be held responsible for certain offenses independently of its owners or employees.

-       Ultra Vires: Mitigates ultra vires actions by clearly defining the corporation's powers and limitations, preventing it from engaging in activities beyond its legal authority.

 

Nature of Corporate Personality Rights and Duties

Corporate Personality Rights:

Corporations have various legal rights similar to those of individuals. These rights may include the right to enter into contracts, sue or be sued, own property, and enjoy constitutional protections.

1.      Legal Capacity:

Description: Corporations have the legal capacity to enter into contracts, sue, and be sued in their own name.

Significance: This allows corporations to engage in various legal transactions and dispute resolution independently.

 

2.      Property Ownership:

Description: Corporations can own, buy, and sell property in their own right.

Significance: This facilitates the acquisition and management of assets for business operations.

3.      Limited Liability:

Description: Shareholders enjoy limited liability, protecting their personal assets from the corporation's debts.

Significance: Encourages investment by reducing the risk for individual shareholders.

4.      Borrowing and Financing:

Description: Corporations can borrow money, issue bonds, and engage in financial transactions.

Significance: Enables corporations to raise capital for expansion and other financial needs.

Corporate Personality Duties:

Corporations also have legal duties and responsibilities, which primarily involve adhering to the law, fulfilling contractual obligations, acting in the best interests of the corporation, and providing accountability to shareholders and stakeholders.

1.      Fiduciary Duties:

Description: Directors and officers owe fiduciary duties to the corporation and its shareholders.

Significance: Requires decision-makers to act in the best interests of the corporation and its stakeholders.

2.      Compliance with Laws:

Description: Corporations must adhere to applicable laws and regulations.

Significance: Ensures legal compliance and ethical conduct in business operations.

3.      Accountability to Shareholders:

Description: Corporations are accountable to their shareholders for financial performance and decision-making.

Significance: Encourages transparency and responsible management.

4.      Contractual Obligations:

Description: Corporations are bound by contracts entered into on their behalf.

Significance: Facilitates business transactions and partnerships with third parties.

5.      Corporate Governance:

Description: Corporations must establish and maintain effective corporate governance structures.

Significance: Enhances accountability, oversight, and ethical practices within the organization.

 

Definition of Right

Salmond: defines ‘Legal Rights’ in the wider sense: “In this generic sense legal right may be defined as an advantage or benefit conferred upon a person by a rule of law. The legal rights and wider sense do not necessarily correspond with duties. The legal rights in wider sense are four distinct kinds. These are

1.      rights

2.      liberties

3.      powers

4.      Immunities.

Each of this has its correlative namely duties, no-rights, liabilities, and disabilities.”

 

Classification of Rights and Duties

Salmond classified legal right in 7 ways. They are as follows:

1.      Legal rights with material objects.

Houses, land, come into first category. These are the general and material objects required for people.

2.      Legal rights over immaterial objects.

Trade-marks, Copy rights, Patent rights.

3.      Legal rights of one’s own person.

Every one has his personal right, to have health, protection of life, liberty, etc. These are his own personal legal right.

4.      Legal right of reputation.

Every person loves his reputation more than his property and life. It is peculiar right conferred to man.

5.      Legal rights of services.

The relations and rights between the patient and doctor, client and advocate, master and servant, etc. Come under this classification.

 

6.      Legal right of personal life.

The personal relations and rights come under this category. Ex: Wife and husband; children and parents; brothers, sisters etc.

7.      Legal right pertaining other matters.

Agreement to sell the property; Mortgage-deed; debentures, shares, etc.

Austin divides duties into two categories

1.      Absolute duties

It means complete and unconditional duties. They have no rights. The duties have no corresponding rights. They are only duties and therefore called as “absolute duties”.

Ex:

a)      Duties owed to the state.

b)      Self-regarding duties.

c)      Duties owed to persons indefinitely.

d)      Duties owed to god.

e)      Duties owed towards lower animal

f)       All duties enforced by the criminal law.

2.      Relative duties

It is a duty to be fulfilled towards a determinate person. If A purchased a television set from B, it is the duty of B to give a good T.V. It is a relative right and duty between A and B.

 

Absolute and Relative Rights and Duties

Absolute Rights and Duties:

Absolute Rights: These are rights held by an individual or entity that can be exercised without affecting or imposing obligations on others. In other words, the exercise of an absolute right does not interfere with anyone else's rights or interests. Examples of absolute rights may include the right to free speech, the right to self-defense, or the right to personal property.

Absolute Duties: Corresponding to absolute rights, absolute duties are obligations that one must fulfill independently of another party's actions. These duties do not rely on someone else's exercise of rights or the existence of a specific relationship. For instance, the duty not to steal is an absolute duty – it applies to everyone regardless of their actions.

 

Relative Rights and Duties:

Relative Rights: Relative rights are those that exist within a specific relationship between individuals or entities. The exercise of relative rights can have an impact on the rights or interests of others involved in that relationship. These rights depend on the context of the relationship. For example, a tenant has the relative right to occupy a rented property, which depends on the landlord's corresponding duty to provide that property.

Relative Duties: Relative duties are obligations that arise within the context of a particular relationship. They are tied to the exercise of relative rights. For instance, in the landlord-tenant relationship, the landlord has a relative duty to maintain the property in a habitable condition, which corresponds to the tenant's relative right to occupy a well-maintained dwelling.

 

Rights and Cognate concepts like Liberty, Power, Immunity, Privilege etc.

Rights:

Rights are legally recognized claims or entitlements that individuals or entities have. These claims are protected by the law and encompass a broad spectrum of areas, including civil rights, human rights, property rights, and contractual rights. They empower individuals to perform certain actions, possess property, or expect specific treatment.

Liberty:

Liberty refers to the state of being free from coercion or restraint. It is closely related to rights and includes the freedom to act or think as one chooses within the boundaries of the law. Liberties can include freedom of speech, religion, and personal autonomy.

Power:

Power is the ability to influence or control events, people, or resources. In legal contexts, power may refer to the authority vested in a person or entity to make decisions or enforce rules. For example, a government has the power to create and enforce laws.

Immunity:

Immunity is a legal protection that shields an individual or entity from certain legal consequences or responsibilities. For instance, diplomatic immunity protects foreign diplomats from prosecution in the host country's legal system.

Privilege:

Privilege grants certain individuals or groups special advantages, benefits, or opportunities that are not equally available to others. Privileges may be based on factors such as race, gender, or social status. It is important to distinguish between legitimate privileges (e.g., attorney-client privilege) and unearned social advantages.

These cognate concepts are closely related to the notion of rights and contribute to the overall framework of legal and social relationships. Understanding these concepts is essential in comprehending the various ways individuals and entities interact within a legal and societal context.

 

UNIT – 4

Obligation

Obligation is a legal or moral duty that compels an individual or entity to act or refrain from acting in a particular manner. Obligations can arise from various sources, including contracts, the law, moral principles, and societal norms.

Obligation is considered as a proprietary right in personam, which means a duty which corresponds to such a right but right which pertain to a person’s status such as those created by marriage etc., or not obligations even those they are right in personam.

Steel Hallond: He defined obligation as a tie where by one person is bound to perform some act for the benefit of others.

Savigny: According to Savigny an obligation is the control over another person, yet not over his person in all respects (in which case his personality would be destroyed), but over single acts of his which must be conceived of subtracted from his free will and subjected to our will.

Emmanuel kant: He has characterized obligation as the possession or the will or another has a means of determining it through by own in accordance the law of freedom.

Paton: According to Prof. Paton, an obligation is that part of law which creates right in personam.

Anson: "an obligation is a control exercisable by definite persons over definite persons for the purpose of Definite acts or forbearance reducible to a money value"

Kinds of Obligation

There are four types of obligation:

1.      Contractual Obligation: a contract is a kind of agreement which create right in personam between parties to it

Example: contract of sale and purchase

2.      Delictal obligation: The obligation arising out of torts. It means a duty of making Pecuniary satisfaction for the wrong.

Example: tort committed by defamation.

3.      Quasi-Contractual Obligation: this obligation regarded by the law as contractual though there are not so in fact in Roman law such obligation was called obligations quasi-Ex contractual, while in English law they are called quasi contractual.

4.      Innominate obligation: Salmond called a residual class of obligation those obligation which are not covered under any of three categories are called innominate obligation. for instance, the obligation trustee to or their beneficiary.

 

Nature of Obligation

The Nature of Obligation varies depending on its source:

Legal Obligations: These obligations are imposed and enforced by the law. Failure to fulfill legal obligations can result in legal consequences, such as fines or imprisonment.

Moral Obligations: Moral obligations are rooted in ethical or moral principles. They are not legally enforceable but are driven by one's sense of what is right or wrong.

Social Obligations: Social obligations arise from societal norms and customs. They are not legally binding but are based on societal expectations and can influence one's reputation.

 

Obligation arising out of Contract, Quasi Contract, trust and breach of obligation etc.

Contractual Obligations: These obligations arise from agreements between parties. When parties enter into a contract, they create legal obligations to fulfill the terms and conditions specified in the contract. Breaching a contract can result in legal remedies or damages.

Quasi-Contractual Obligations: Quasi-contracts are not actual contracts but are legal constructs used to prevent unjust enrichment. When one party receives a benefit from another party without a contract, the law may impose a quasi-contractual obligation to compensate the benefactor for the value received.

Obligations in Trust: Trust obligations arise when one party (the trustee) holds and manages assets or property for the benefit of another party (the beneficiary). The trustee has a fiduciary duty to act in the best interests of the beneficiary.

Breach of Obligation: When a party fails to fulfill their obligations, it constitutes a breach. The injured party may have a legal right to seek remedies, such as damages, specific performance, or injunctions, to address the breach.

 

Liability

Liability refers to the legal responsibility or obligation of an individual, entity, or organization to answer for their actions or omissions that result in harm, damage, or the violation of legal duties. Liability often involves an obligation to compensate for the consequences of these actions or omissions i.e., Accountability.

Salmon: It is a bond of legal necessity that exist between a wrong words & remedy of the wrong.

Maikby: the word liability is used to describe the condition of a person who has a duty to perform whether their duty is primary or secondary.

John Austin: use a term imputability to liability According to him, those certain forbearance Commission or act to get with such of their consequences, hence it was purpose of the duty of the person who have forborne omitted or acted.

 

Nature and kinds of liability

1.      Civil or criminal liability:

Civil liability consists the enforcement of the right of the plaintiff against the defendant in civil proceedings. Where as in case of criminal liabilities the purpose of law is to punish the offenders and wrongdoers. So, civil liabilities may either the remedial or penal but criminal liability is necessarily the penal.

 

Civil liability	Criminal liability
It arises, when wrongdoer against the private individual.	It arises in case of offence which is wrong against the society.
It results into damage	It results into punishment
In case of a civil wrong, the civil liability is determined by civil proceedings in Civil court.	It impose by legal proceeding instituted by the state against the offenders.
It is the act not the intention which is taken into consideration	It is the mens rea, which is the determining fact.

 

2.      Penal & Remedial liability:

Liability may be penal or remedial, the formal involving the idea of punishment while the latter consisting with the specific enforcement of the plaintiff right without any element of the punishment in it.

 

 

 

Remediate liabilities:

The basis of remedial liability is to be found in maxim “UBI JUS IBI REMEDIUM” (Where there is right there is a remedy) where law makes duty ensures it fulfillment also, where there is a breach of duty, there must be remedy. Remedy prescribed by law and enforced by law.

The remedy is to ensure the specific enforcement of the plaintiffs right. It aims at protecting the right of the plaintiff rather than punishing the wrongdoers.

Exceptions of the remedy liabilities:

1.      Duties of imperfect obligation

(ex: time barred debt)

2.      Duty which by nature incapable of specific performance

(ex: Defamation)

3.      Where the specific performance inexpedient or inadvisable.

(ex: Promise of marriage after 10 year and broken)

Penal liability: It is direct or indirect, the basic principle underlying penal liability is containing in the maxim “ACTUS NON FACITREUM, NISI MENS SITREL” which means act done doesn’t account to crime unless it is accompanied by guilty mind.

Acts

In the legal context, an "act" refers to a physical or mental action carried out by an individual. Acts can encompass a wide range of behaviors, including actions that are either lawful or unlawful. In criminal law, the specific act or conduct that constitutes an offense is a crucial element in determining culpability and liability.

 

Men’s Rea

Mens Rea is a Latin term that translates to "guilty mind." It is a crucial concept in criminal law that refers to the mental state or intent of an individual at the time they commit a criminal act. Mens rea helps distinguish between different levels of culpability and is often an essential element in proving a criminal offense.

 

Intention and Motive

Intention relates to the specific purpose or objective an individual has when carrying out an act. It signifies that the individual acted deliberately and with a conscious aim to achieve a particular outcome. Intent can be a key component of mens rea, especially in cases involving intentional wrongdoing.

Motive is the underlying reason or incentive that drives an individual to act in a certain way. It represents the emotional or psychological factors that prompt a person's behavior. While motive can provide context and help establish a person's reasons for committing an act, it is not always a necessary element in determining guilt or liability, especially in criminal cases.

 

Relevance of Motive

Motive is the underlying reason or incentive that drives an individual to act in a particular way. While motive can be relevant in legal proceedings, its importance varies depending on the type of case and the jurisdiction. Here are a few ways in which motive can be relevant:

·         Establishing Intent: In criminal cases, motive can help establish an individual's intent to commit a crime. While motive alone is not sufficient to prove guilt, it can provide context and support the prosecution's argument.

 

·         Understanding Behavior: Motive can shed light on an individual's behavior, helping to explain their actions or decisions. It can be relevant in cases where the defendant's state of mind is a key issue.

·         Corroborating Evidence: Motive can serve as corroborating evidence in a case when coupled with other elements of mens rea (the mental state). It may help establish a motive to commit a crime.

It's important to note that motive is not a required element to establish criminal liability. In many cases, the prosecution does not need to prove motive if they can establish the defendant's intent to commit the crime.

 

Negligence

Negligence is a legal concept that pertains to a lack of reasonable care or the failure to exercise the level of care that a reasonably prudent person would under similar circumstances. It can lead to civil liability when one party's negligence causes harm or damages to another.

In civil cases, negligence is often a central issue, and plaintiffs may seek compensation for injuries or losses resulting from another party's negligence. To establish negligence, the following elements are typically required: duty of care, breach of duty, causation, and damages.

 

Strict Liability

Strict Liability is a legal concept that imposes liability on an individual or entity without the need to prove fault, negligence, or intent. In cases of strict liability, the focus is on the act itself rather than the defendant's state of mind. Strict liability is often applied in cases involving inherently dangerous activities, defective products, or certain statutory offenses.

Strict liability is most commonly associated with product liability cases, where manufacturers, distributors, or sellers may be held liable for injuries or damages caused by defective products, regardless of whether they acted negligently or intended harm.

 

Accident

An accident is an unplanned, unforeseen, and unintended event or occurrence that leads to an undesirable outcome. In the legal context, accidents can be relevant in various areas, including tort law, criminal law, and insurance law. Here are some key points:

·         Tort Law: In tort law, accidents may be considered a defense against a claim of negligence if it can be demonstrated that the event was truly accidental and not the result of negligence or intentional misconduct.

·         Criminal Law: In criminal cases, accidents may affect the mens rea (mental state) element. If a crime requires intent or recklessness, proving that an act was purely accidental can be a defense against criminal liability.

·         Insurance Law: Accidents often play a significant role in insurance claims. Insurance policies typically cover losses resulting from accidental events. However, the terms and conditions of the insurance policy must be examined to determine coverage.

 

Vicarious Liability

Vicarious Liability refers to the legal responsibility imposed on one party for the actions of another party. It typically arises in situations where one party (the principal) is held liable for the actions or omissions of a second party (the agent or employee) while they are acting within the scope of their employment or agency relationship. Key points about vicarious liability include:

·         Employer-Employee Relationships: It is commonly associated with employer-employee relationships. Employers may be held vicariously liable for the negligent or wrongful acts of their employees while performing job-related duties.

·         Scope of Employment: For vicarious liability to apply, the act or omission must occur within the scope of the employee's job or agency relationship. Acts outside the scope may not result in vicarious liability.

·         Rationale: Vicarious liability is based on the principle that the employer or principal benefits from the actions of the agent or employee and, therefore, should bear the legal responsibility for their actions.

 

 

 

measure of Civil and Criminal Liability.

The measure of civil liability and criminal liability differs in several ways:

Civil Liability: In civil cases, the measure of liability generally involves compensating the injured party for damages or losses suffered due to another party's actions. The focus is on providing a remedy or compensation to make the injured party whole, typically through the award of monetary damages.

Criminal Liability: Criminal liability involves the legal responsibility of an individual for violating criminal laws. The measure of criminal liability often leads to punishment rather than compensation. Penalties may include fines, probation, imprisonment, or other forms of punishment designed to deter and punish wrongful conduct.

 

UNIT - 5

Ownership – Definition

Ownership is the legal right or claim to possess, use, control, and dispose of property or assets. It signifies that an individual or entity has exclusive and legal control over a particular object or resource.

 

kinds of Ownership

1.      Individual Ownership: This is the most common form of ownership, where an individual has sole and exclusive control over an asset or property. The owner can use, sell, lease, or transfer the property as they see fit.

 

2.      Co-Ownership: Co-ownership occurs when multiple individuals or entities jointly own a property. It can take various forms, including:

·         Tenancy in Common: Co-owners have individual shares of the property, and they can sell or transfer their share.

·         Joint Tenancy: Co-owners have equal shares and the right of survivorship, meaning if one owner dies, their share passes to the remaining owner(s).

·         Tenancy by the Entirety: Similar to joint tenancy but specific to married couples, where each spouse has an undivided interest in the entire property.

3.      Collective Ownership: In collective ownership, a group or organization collectively owns and manages an asset or property. It is often seen in businesses, cooperatives, or community-owned resources.

4.      Corporate Ownership: Assets or property are owned by a legal entity, such as a corporation, which can buy, sell, and manage property as an independent entity.

5.      Public Ownership: Resources or assets are owned by a government or public authority and are intended for public use or benefit. Examples include public parks and government-owned buildings.

6.      Common Ownership: Common ownership involves shared ownership of property by a group of individuals who have certain rights to use or benefit from the property, such as in a condominium complex.

7.      Lien and Security Interests: In some cases, a party may have a financial interest or lien on a property as collateral for a debt or obligation. While they do not own the property outright, they have a legal interest in it until the debt is satisfied.

 

Possession

Possession refers to the physical control, custody, or occupation of an object or property. It is a fundamental concept in property law and has legal implications in various contexts. Here are the key elements and the relationship between ownership and possession:

 

Elements of Possession

1.      Physical Control: Possession involves physical control over the object or property. The possessor has the item within their physical reach or under their custody.

2.      Intention to Possess: The possessor must intend to possess the item. This means they have a conscious desire to exercise control over the object.

3.      Exclusivity: Possession is exclusive in that the possessor's control should exclude others from exercising control over the same object at the same time. This exclusivity may be subject to exceptions in certain situations, such as shared possession.

4.      Factual Authority: The possessor exercises factual authority over the object. They can make decisions regarding its use, management, and control.

 

Relation between Ownership and Possession

Ownership and possession are related concepts, but they are not always the same. Here's how they are connected:

1.      Concurrent Ownership and Possession: In many cases, the owner of property is also in possession of that property. For example, if you own a car, you possess it as well.

2.      Separation of Ownership and Possession: Ownership and possession can be separated. For instance, you may lease a property to someone else, making them the possessor while you retain ownership.

3.      Transfer of Possession without Transfer of Ownership: Possession can change without a transfer of ownership. A common example is lending or renting, where someone possesses an item temporarily but does not become the owner.

4.      Adverse Possession: In some legal systems, if a person possesses property openly and adversely for a specified period, they may eventually gain ownership rights if the actual owner does not challenge the possession. This is known as adverse possession.

5.      Owner's Right to Possession: In cases of ownership, the owner has the legal right to possess the property. However, they may choose to grant possession to another through lease, rent, or other agreements.

 

Possessory Remedies

Possessory Remedies are legal actions or measures available to protect a person's possession of property when it is wrongfully interfered with. These remedies aim to restore or protect the possessor's right to control and enjoy the property. Some common possessory remedies include:

·      Replevin: A legal action to recover wrongfully taken goods or property.

·      Detinue: A legal action to recover specific items of personal property.

·      Ejectment: A legal action to regain possession of land or real property.

 

Property Meaning

Property refers to anything that an individual or entity can own, possess, control, or have a legal interest in. Property can be broadly categorized into two main types:

Real Property, also known as immovable property or real estate, includes land and everything permanently attached to it, such as buildings, structures, and natural resources. Real property rights often involve ownership, lease, or other legal interests related to land and its improvements.

Personal Property, also known as movable property, includes items that are not permanently affixed to land. Personal property encompasses a wide range of assets, such as vehicles, furniture, equipment, and financial instruments. Personal property rights can include ownership, possession, and various forms of legal interests.

 

Kinds of Property

1.      Tangible Property: Tangible property refers to physical, touchable assets. This includes items like vehicles, furniture, and equipment. Both real and personal property can be tangible.

2.      Intangible Property: Intangible property encompasses non-physical assets, such as intellectual property. This category includes patents, copyrights, trademarks, and other rights that are not tangible but have value.

3.      Private Property: Private property is owned by an individual or private entity and is not owned by the government. This type of property is subject to the owner's control and use.

4.      Public Property: Public property is owned by the government or a public entity and is intended for public use or benefit. Examples include parks, roads, and government buildings.

5.      Common Property: Common property is collectively owned or shared by a group of individuals. It may be available for use by members of a community or organization. Common property is often subject to rules or regulations.

6.      Intellectual Property: Intellectual property includes creations of the mind, such as inventions, artistic works, and trade secrets. It is protected by intellectual property laws, and rights may be granted through patents, copyrights, and trademarks.

7.      Personal Property: Personal property includes movable assets like vehicles, jewelry, and electronics.

8.      Real Estate: Real estate is a specific category of property that refers to land and any structures or improvements permanently attached to it.

 

Modes of Acquisition of Property

Modes of Acquisition of Property refer to the various ways in which individuals or entities can legally come into ownership or possession of property. These modes can include:

1.      Transfer or Purchase: Acquiring property through a voluntary transaction, such as buying, receiving, or inheriting it.

2.      Occupation: Gaining ownership of unclaimed or abandoned property through occupation, often referred to as "adverse possession."

3.      Gift: Receiving property as a gift from another party.

4.      Inheritance: Inheriting property through a will or legal succession when the property owner passes away.

5.      Creation: Creating property through intellectual or creative efforts, leading to intellectual property rights.

6.      Accession: Acquiring property through natural processes, such as the growth of crops or the accumulation of sediment.

7.      Prescription: Acquiring property rights over time by meeting specific legal requirements, often related to continuous and uninterrupted possession.

 

Legal Sanctions

Legal Sanctions are the consequences or penalties imposed by the legal system to enforce compliance with the law and to deter unlawful behavior. These sanctions are designed to maintain social order, protect individual rights, and uphold the rule of law.

 

Meaning of Sanction

Sanction refers to the action taken by a legal authority, such as the government or a court, to either reward compliance with the law or punish violations of the law. Sanctions can take various forms, including fines, imprisonment, injunctions, or the granting of legal rights and privileges.

 

Classification of Sanctions

Sanctions can be classified into two main categories:

Positive Sanctions:

Positive sanctions are actions taken to reward or encourage individuals or entities for complying with the law or achieving certain goals. Examples include:

·         Monetary rewards or incentives for following the law or achieving specific outcomes.

·         Legal benefits, such as tax breaks or subsidies, provided to those who engage in desirable activities.

·         Acknowledgment and recognition for individuals or entities that contribute positively to society.

Negative Sanctions:

Negative sanctions are penalties or punishments imposed on individuals or entities for violating the law or engaging in harmful activities. Examples include:

·         Fines or monetary penalties for legal violations.

·         Imprisonment or other forms of incarceration as a consequence of criminal behavior.

·         Injunctions to prevent individuals or entities from engaging in certain actions that would harm others.

·         Revocation of privileges or rights in cases of legal violations.

Sanctions play a vital role in upholding the legal system and ensuring that individuals and entities adhere to the law. They provide both incentives for lawful behavior and consequences for unlawful actions.

 

Civil and Criminal Justice

Civil Justice: Civil justice pertains to the resolution of disputes and conflicts between individuals or entities. It involves legal actions where one party (the plaintiff) seeks a remedy, typically in the form of monetary compensation, from another party (the defendant) for alleged harm, breaches of contract, or civil wrongs (torts).

Criminal Justice: Criminal justice focuses on the enforcement of laws, the investigation and prosecution of criminal offenses, and the administration of punishment or penalties for individuals found guilty of committing crimes. It involves the government's efforts to maintain public safety, protect individual rights, and uphold the rule of law.

 

 

Concept of Justice

Justice is a fundamental ethical and moral concept that encompasses fairness, equity, and the protection of rights. It refers to the principle of treating individuals or entities in a manner that is morally and ethically right, where wrongs are rectified, and individuals are held accountable for their actions.

 

Theories regarding purpose of Criminal Justice

Deterrent

The deterrent theory aims to prevent future criminal behavior by making the consequences of crime severe enough to discourage potential offenders. It assumes that individuals will refrain from criminal acts if they fear the consequences, such as imprisonment or fines.

Preventive

The preventive theory focuses on identifying and addressing the root causes of criminal behavior to prevent future offenses. It aims to intervene in the lives of at-risk individuals through rehabilitation, social programs, and support services.

 Reformative

The reformative theory seeks to reform and rehabilitate individuals who have committed crimes. The emphasis is on the reintegration of offenders into society as law-abiding citizens. Rehabilitation may involve education, vocational training, and therapy to address the factors contributing to criminal behavior.

Retributive theories.

The retributive theory centers on the concept of punishment as a moral response to criminal acts. It asserts that offenders should face punishment in proportion to the severity of their crimes, regardless of their potential for reform. The goal is to exact vengeance and satisfy society's sense of justice.

These theories represent different philosophies and approaches to criminal justice, each emphasizing distinct objectives, from deterring future crimes to rehabilitating offenders or seeking retribution for wrongdoing. The choice of theory may vary based on legal systems, societal values, and specific cases, and justice systems often incorporate elements of multiple theories to address various aspects of criminal behavior.

 ------------------------------ XXX-------------------------------------------------------

DOWNLOAD SYLLABUS SHORT NOTES PDF of JURISPRUDENCE:

DOWNLOAD - Jurisprudence syllabus short notes  (revised on 24-01-2024)

DOWNLOAD - Jurisprudence IMP Q&A (revised on 24-01-2024)

------------------------------------------------------------------------------------------------

GOTO OTHER SUBJECTS SHORT NOTES 

|||||||| 1st SEMESTER ||||||||||

P-V: Environmental Law 

||||||||| 2nd SEMESTER |||||||||

P-I: Contract Law - 2 

P-II: Family Law - 2

P-III: Constitutional Law - 2

P-IV: Law of Crimes

P-V: Law of Evidence

|||||||||| 3rd SEMESTER ||||||||||||||||

P-I: Jurisprudence

P-II: Law of Property

P-III: Administrative Law

P-IV: Company Law

P-V: Labour Law - 1

|||||||||| 4th SEMESTER ||||||||||||||||

P-1: Labour law - 2

P-II: Public International Law

P-III: Interpretation of Statutes

P-IV: Land Laws

P-V: Intellectual Property Law

-----------------------------------------------------------------------

Note: Some of the short notes are intended for a basic understanding of the subject topics. For a more in-depth understanding, please refer to the textbooks.