JurisprudenceLegal Theory

Sharmila Ghuge

2011-2012

Books for Reference

• Jurisprudence by-

• Holland

• Roscoe Pound

• V. D. Mahajan

• Friedmann

• Dr. Mani Tripathi

• Rohinton Mehta

Introduction

• Juris- means law

• Prudence- means knowledge

• juris+ prudence= Knowledge of law

• Alphabets + grammar = English

• Jurisprudence + Law = Legal System

• Jurisprudence is to law what grammar is to English.

Definitions

• Ulpian Knowledge of things divine and human. (Knowledge of Right and wrong)

• Gray Systematic arrangement of rules, which are followed by the courts.

• Dr. Allen Scientific synthesis of essential principles of law.

• R. Pound Science of law.

• Salmond Investigation into law.

What is Jurisprudence??????

IPC Torts ContractEnviron-

mentLaw

IPR

Sociology, Ethics, Psychology, Economics, Politics, Logic, Mathematics, Science, etc.

Jurisprudence

Purpose and Use of Jurisprudence

• Purpose Analysis, synthesis and improvement in legal concepts.

• Uses Understand law, scientific development, fundamental concept, helps in interpretation to ascertain meaning.

Stages of Development• Roman thought Law & Morality

• Greek Eternal/ natural Justice

• Asia Dharma

• Dark Ages Domination of Church

• Reformation Line between religion and law

• Developments Analytical School, Historical School, Sociological School, Realist School.

Sources of Law• Source origin

• Different opinions source of law

• Austin law originates from the sovereign

• Savigny origin in “volksgeist”

• Pound numerous factors

• Theologians law originates from God

• Legal theory classifies sources of law

Sources of Law

Formal SourcesSources from which law

derives its force and validity

Material SourcesSources from which law derives

not its validity but the matter of which it is composed

Legal Sources1. Enacted laws2. Case laws3. Customary laws4. Conventional laws

Historical SourcesUnauthoritative

No legal recognitionEx: juristic writing, foreign decisions

Sources of Law

• Customs Source of law

• A common imitation by group of people for a certain period.

• Any particular conduct followed for long period becomes custom.

• Salmond Customs commended to the national conscience as principles of justice and public utility.

Customs Various Legal System

RomeYes, accepted CustomsBeforecodification

IndiaManusmrutiMuslim RulePrivy CouncilStrong influenceOf customs

EnglandVery Imp

Common Law

Judge made laws

Strong influence

FranceNever accepted

But indirectly

Followed customs

Customs

Legal Customs Conventional Customs

General Custom

Prevail throughoutLocal Custom

Only specific

section

Geographical Personal

Agreement

Established by parties

As per law

Essentials of Valid Customs• Antiquity (year 1189)

• Continuance of customs

• Peaceful enjoyment

• Certainty

• Reasonableness (Public policy)

• Conformity with statute

• When does a custom become law?

Custom – Law ?

• Analytical view- Austin-Customs not law until so declared by the sovereign. Gray- Customs not law until approved by judge.

• Historical- Puchta- Recognition by State not necessary.

• Correct position- Synthesis of both the views.

• Custom base of legal systems but in accordance to law.

Precedent• Definition “a previous instance or a case

which is, or may be taken as an example of rule for subsequent cases, or by which some similar act or circumstances may be supported or justified”

• Role of judges

• Inductive method

• Deductive method

Various Legal System & Precedent

Roman LawJustinansDeclarationNo evidence

French Law

Court de cassation

Followed precedent

German Law

Completely

Followed

precedents

English Law

Followed since ages

Bracton in 14th

Century reported

500 cases.

Lower courts bound

By precedent of

House of Lords.

Operation of Precedents

• Hierarchy of Courts• Supreme Court

• High Courts

• Divisional Courts

Precedent in India• Precedents in English legal system• India Ancient times (Mahabharata) Agranian

Society (no disputes) medieval period (Muslim Rule) British Rule Reporting since 1773 Privy Council- Supreme Court (Calcutta)- High Court.

• Presently Article 141 of Constitution- Law Binding on lower courts.

• Sajjan Singh v. State of Rajasthan• Golaknath v. State of Punjab• Keshwanand Bharti v. State of Kerela

Application of Precedent

• Ratio Decendi Material Element (a guide for similar cases)

• Obiter Dictum Observation (No principle laid down)

• Declaratory theory judges make law or declare law?

• Blackstone- Custom- Common Law- judge made law

Continued…• J. Cardozo Creative role of judges

• Creativity + Law + intelligent application= proper interpretation of law (prospective over ruling)

• Legislation makes law (skeleton)- ex: 14, 19, & 21.

• Judiciary interpretation of law (adding life to the skeleton) Eg: Vishaka v. State of Rajathan.

Legislation

• Definition “The promulgation of legal rules by an authority which has the power to do so”

• Legislation the best source of law.

• Statute law is definite, brief, clear and easily understandable.

• Authority dejure + express will of State

• Advanced and systematic method

• Supreme source of law.

Supreme & Subordinate legislation

• Supreme legislation is the power of State

• Subordinate legislation is law made by any other authority than the supreme authority.

• Executive made law Delegated legislation.

• 20th century (social solidarity I World War)

• Post war reconstruction

• 1929- Lord Hewart

• 1932- Committee on Ministers Powers

Supreme & Subordinate legislation

• Necessity to have subordinate legislation

• Reasons Want of time, technicality, emergency, flexibility, etc.

• Safeguards (parliamentary, judicial, procedural control)

• Queen v. Burah

• In re Delhi Laws Act

• Ram Javaya Kapur v. State of Punjab

Legal Concept of Person

• What is personality

• Derived from Greek word “Persona”

• “Rational subtraction of human being”

• Legal meaning Right and duty bearing unit.

Persons

Natural Legal

UnbornRight to life

Living (Born)

Normal Abnormal(Lunatic)

Corporation Sole

Corporation aggregate

Continued…• Rights of Animals Ancient period-King

Jehangir.

• Present era- Under Article 48 A protection of animals but no legal personality.

• Status & rights of dead man

• Status & rights of lunatic- S. 82-84 IPC- immunity from criminal liability

Legal Person

• Legal person is nay subject matter other than a human being to which law attributes personality.

• It includes an object, a mass of property, institution, company, etc.

• Corporate personality• Origin form Roman and ancient Hindu law

• English law- Juristic persons Corporation Sole and corporation Aggregate

Legal Person• Corporation Sole is defined as an incorporated

series of successive persons.

• Corporation aggregate means an incorporated group of co-existing persons.

• Corporation can be created by a royal charter, some special statute, by registration under Companies Act.

Theories of Corporate Personality• Fiction Theory only human beings can be

called persons, groups may be regarded as persons for certain purposes only by fiction but no real personality.

• Concession theory Corporate bodies have legal personality only to the extent granted by law.

• Realist Theory organic theory- Group has real will, real mind and power of action. Legal personality not fictious.

Theories of Corporate Personality

• Bracket Theory Symbolist theory- members of corporation are the only persons who have rights and duties. Juristic personality is only a symbol which helps effectuating the interest or purpose of the group.

• Salomon v. Salomon, People’s Pleasure Park Co. v. Rohleder, Daimler co. v. Continental Tyre Co.

Liability of Corporation

• Liability of Corporations in Contract.

• Liability of Corporations for torts.

• Liability of Corporations for criminal acts.

Rights and Duties

• What is a Right????

• Fundamental Right??

• Legal Right?

Theories of Right

Will TheoryHolland, Austin

Interest Theory

Salmond

Self expression

Birth Right(Natural)

Lack of interest

eg: infants, lunatics,

corporate

Synthesis Will + Interest= Right

Definitions of Right

• Salmond Right is an interest recognized and protected by law.

• Holland Capacity residing in one man of controlling with assent and assistance of the State the actions of others.

• Austin Right is a faculty which resides in a determinate party by virtue of a given law and which bounds other party with corresponding duty.

Elements of Legal Right

• The Subject Subject means the holder of the right. (There can be no right without holder).

• The act Right relates to some act. It obliges a person to act in favour of the person who is entitled to the right.

• The Object It is the thing in respect of which the right exists or is exercised.

• The Duty It means the person upon whom falls the correlative duty.

Elements of Legal Right

• Title added by Salmond- Every legal right has a title.

• Ex: If A buys a piece of land from B.• A is the subject (owner of the right acquired).• Transfer of land is the act.• Piece of land is the object.• B’s Duty to transfer the land in A’s name• After the transfer A gains a title as owner of the

land.

LandA…..B

Wider Sense of Right [Hohfeld’s Theory]

• Rights (generic) eg: Monkey (generic)

• Liberty Guerilla

• Power Ape

• Immunity Human

Species Species

Jural Opposites & Jural Correlatives

Right Liberty

Duty No Right

Power Immunity

Liability Disability

Right Liberty

Duty No Right

Power Immunity

Liability Disability

Jural Corelatives• Right ---------------------------------------Duty• Ex: Fundamental Rights……Reasonable restrictions• Liberty--------------------------No Right• Ex: Damnum Sine Injuria (Glouester Grammer

School) Also, U/A 19 (1) (g)• Power-------------------------Liability• Ex: Making will……..Will….Beneficial Liability• Immunity----------------------Disability• Ex: Freedom from subjection…….Absence of Power• President cannot be arrested………Policemen

Kinds of Rights

• Antecedent & Remedial Rights(Primary & secondary)• Principal & Accessory• Perfect & Imperfect Rights• Positive & Negative Rights• Rights in Rem & Rights in Persona• Rights inpropria & Rights in realiena• Proprietary & Personal Rights• Vested & Contignet Rights

Possession

• Possession A polymorphous term

• Evidence of ownership

• Why law protects possession??

• Rouseu & Kant Human born free individual will possession is desire.

• Savigny To avoid violence.

• Ihering possessors are owners.

• Holland Preservation of peace.

Definitions

• Holmes man + Physical relation to object + intent + exclude rest of the world

• Salmond Continuing exercise of claim to the exclusive use of it.

• Pollock control over object + excluding others

• Relation to person + Relation to things + to exclude others= Possession

Analysis of Possession

• Salmond Corpus possessionis (Physical contact) + Animus domini (intention)

• Rights of Possessor• Possession is root of title Nine points in law.

• Transfer of possession transfer of ownership.

• Better claim against the whole world except real owner

Types of Possession

• Corporeal Possession & Incorporeal Possession.

• Immediate Possession & Mediate Possession.

• Defacto Possession & Dejure Possession.

• Adverse Possession & Constructive Possession.

Modes of Acquiring Possession

• Taking Res-Nullius (no original owner)

Res-Derelictae (Abandoned property)

• Delivery Transfer, sell, contrcat, gift, etc.• Constructive Delivery Traditio (surrender)

Constitum (auction) Attornment (Transfer)

• By Operation of Law eg: wills

Ownership

• Akin to possession possession came into existence and then ownership.

• Nomadic to agricultural• Roman Law- Dominium- absolute right,

possessio- possession.

• Hindu Law- Distinct Conceptions

• English Law- owner 1340- ownership- 1583.

Ownership

• Custody Relation to object without animus.

• Detention Relation to hold back object.

• Possession Relation to object, law recognises.

• Ownership Relation to object, exclusive, absolute & ultimate.

Definitions

• Austin A right over a determinate thing+ indefinite use+ unrestricted disposition+ unlimited duration.

• Holland A plenary control over object + possession + enjoyment + disposition.

• Salmond It denotes the relation between a person and rights vested.

• Renner’s Theory Relation between man and things.

Ownership

• Rights of ownership• Right of possession.

• Right of enjoyment.

• Right of disposal.

Classification of Ownership

• Corporeal and Incorporeal

• Sole and Co-ownership

• Trust and Beneficial ownership

• Vested and Contingent ownership

• Absolute and limited ownership

Modes of Acquisition

original

Absolute

Extinctive

Accessory

Derivative

occupatio

Specificatio

Previous ownerInheritancePurchase

gift

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