011 k Y&Y*

I..

L
3:

It ____
JURISPRUDENCE
AND

LEGAL THEORY
JURISPRUDENCE "
AND

LEGAL THEORY

DRV.D. MAHAJAN
M.A. (Hons.)., LL B, PhD
Advocate, Supreme Court of India

kffc
uiuii•ii

EASTERN BOOK COMPANY

LUCKNOW
 EASTERN BOOK COMPANY
Website: www.ebc-i ndia.com, E-mail; [email protected]
• Lucknow: 34, Lalbagh, Lucknow-226 oat
Phones: +91-522-4033600 (30 lines), Fax: +91-522-4033633
• New Delhi: i—B, Atma Ram House, 5th Floor
i,Tolstoy Marg, Connaught Place, New Delhi-no oat
Phones: +91-11-45752323, +91-9871197119, Fax: +91-11-41504440
• Delhi: 1267, Kashmere Gate
Old Hindu College Building, Delhi-no oo6
Phones: -4-91-11-23917616, +91-9313080904, Fax: +91-11-23921656
• Bangalore: 25/1, Anand Nivas, 3rd Cross
6th Main, Gandhinagar, Bangalore-56o 009
Phones: +91-80-41225368
• Allaha bad: Manav Law House, 8/io, M.G. Marg
Opp. Bishop Johnson School, Allahabad-211 001
Phones: +91-532-2560710, 2422023, Fax: +91-532-2623584

Shop online at: www.ebcwebstore.com

Fifth Edition, 1987 Reprinted, 2004
Reprinted, 1996 Reprinted, 2005
Reprinted, 1998 Reprinted, 2006
Reprinted, 1999 Reprinted, 2007
Reprinted, 2001 Reprinted, 2008
Reprinted, 2003 Reprinted, 2010
Reprinted, -2012 Reprinted 2013

315.00
0188: 93-5028-06-3

fill lIl
'5789310 28069
lH I IH
All rights reserved. No part of this work maybe copied, reproduced, adapted, abridged or translated,
stored in any retrieval system, computer system, photographic or other system or transmitted in any
form by any means whether electronic, mechanical, digital, optical, photographic or otherwise without
a prior written permission of the copyright holders, Eastern Book Company, Lucknow. Any breach
will entail legal action and prosecution without further notice.
While every effort has been made to avoid any mistake or omission, this publication is being sold on
the condition and understanding that neither the author nor the publishers or printers would be liable
in any manner to any person by reason of any mistake or omission in this publication orfor any action
taken or omitted to be taken or advice rendered or accepted on the basis of this work. For any defect in
printing or binding the publishers will be liable only to replace the defective copy by another copy of
this work then available.
All disputes will be subject to exclusive jurisdiction of courts, tribunals alid forums at Lucknow only.

Copyright © Eastern Book Company, Lucknow

Publishers: EBC Publishing (P) Ltd., 34-A, Lalbagh, Lucknow-226 001
Printers: Army Printing Press, Sadar Cantt., Lucknow-226 002
 FOREWORD

AM HAPPY to be able to introduce this book to the reader.

J We have few practising lawyers in our country who inter-
est themselves in an academic study of law and legal principles.
Those who do write on legal subjects produce co mmentaries on
our Acts or epitomise of our uncodified law. It is therefore refresh-
i ng to find the author dealing with a subject like jurisprudence
which deals with fundamental principles underlying all law.
The study of jurisprudence by our law students has evoked a
great deal of controversy. There are some who take the view that
the study of a subject so abstract can be usefully prescribed only
as a part of the advanced courses of legal studies. Others take the
view that an intelligent approach to the study of all law, whether
statute law or uncodified law, is possible only if it is preceded by
a knowledge of what law is, how it arose and the basic principles
which underlie most systems of law. Whichever be the correct
view it is obvious that a writer who attempts to collate and explain
the fu ndamentals which underlie legal systems generally renders
a useful service to legal learning.
The treatise of the author of which I have seen the first print
seems to me to be a comprehensive collection of the views of dis-
tinguished jurists on basic legal principles arranged under appro-
priate heads. A useful feature of the publication is the invitation to
the reader who feels interested in any particular head of jurispru-
dence to enter upon its research and study on his own by delving
into standard works on the subject which are e numerated at the
end of each chapter under the head "Suggested Readings".
I trust the book will be useful not only to Students in legal in
stitutions, but that it will reach the wider circle of academic and
practising lawyers and others interested in law.
-M.C.SETALVAD
Attorney General of India, 20th November 1962
 PREFACE

REPEAT WHAT I wrote in the Preface to the First Edition of this

I book that the study of law must be given the due place it rightly
deserves in free India. The study should be patronised in every
way and every facility should be given to all those who can and
are eager to pursue advanced study of any branch of law. While
the State should come forward with more funds for the advance-
ment of the study of law, it is the duty of the Hort'ble Judges of the
Supreme Court of India and the various High Courts to make their
respective contributions to the study of law. The learned members
of the Bar in India should also take pride in advancing the cause
of the study of law by their invaluable experience. They must not
be selfish and keep their knowledge of law to themselves. They
should be happy to share the same with others. Every great lawyer
must write on the qubject in which he has specialised. The teachers
of law also must noi lag behind. Everyone should devote himself
wholeheartedly to the study of law and must make some contri-
bution to some aspect of law. If we all pull together, the study of
law is bound to make progress.
The object of this book is not only to explain the principles of
Jurisprudence but also of Legal Theory. A detailed study of the
same has been attempted in this edition. I have drawn largely on
the works of Salmond, Prof. R.W. M. Dias, Lord Lloyd, Allen, Hall,
Hart, Roscoe Pound, Paton and others and I am greatly indebted
to all of them. At the end of every chapter, I have given Suggested
Readings which will be found useful.
It gives me great pleasure to say that the present edition is a
great improvement on the previous editions of this book. A com-
parison will show that most of the book has been rewritten. Chap-
ters XXI to XXIX dealing with Analytical Legal Positivism, Pure
Theory of Law, Historical School of Law, Philosophical School of
VIII JURISPRUDENCE AND LEGAL THEORY

Law, Sociological School, American Realism, The Scandinavian

Realists and Natural Law are new additions. Chapters on Nature
and Scope of Jurisprudence, The Nature of Law, Kinds of Law,
Law and Morals, Administration of Justice, Legislation, Precedent,
Custom, Legal Rights and Duties, Ownership and Possession, Per-
Sons and Liability have been rewritten. There is hardly any chap-
ter which has not been rewritten. All this has added to the utility
of the book. This edition embodies the latest researches in the field
of law in various parts of the world.
It is hoped that the new edition will be welcomed by all those
for whom it is meant.

—V.D. MAHAJAN
1st February 1987
D-805, New Friends Colony
New Delhi.
 BRIEF CONTENTS

FOREWORD V
PREFACE V11

CONTENTS
i. Nature and Scope of Jurisprudence 1
2. The Nature of Law 23
. Kinds of Law 55

4. Classification of Law 81
5. Law and Morals 85

6. State and Sovereignty 97

. Administration of Justice 115
8. Sources of Law 151
9. Legislation 159
lo. Precedent 191
11. Custom 225
12. Professional Opinion and Religion 243
13. Legal Rights and Duties 249
14. Ownership and Possession 285
15. Persons 331
16. Title 357
17. Liability 365
18. Law of Property 399
19. The Law of Obligations 413
20. The Law of Procedure 421
x JURISPRUDENCE AND LEGAL THEORY

21. Legal Theory 431

22. Analytical Legal Positivism
437
23. Pure Theory of Law 471
24. Historical School of Law 483
25. The Philosophical SchoQi of Law 509
26. Sociological School 523
27. American Realism 563
28. The Scandinavian Realists 581
29. Natural Law
595

SUBJECT INDEX 635

 DETAILED CONTENTS

FOREWORD

PREFACE VI!

CHAPTER ONE
NATURE AND SCOPE OF JURISPRUDENCE
What is Jurisprudence? 1
• Austin 2
• Holland 5
• Salmond 7
• Keeton 8
• Pound 8
Scope of Jurisprudence 9
Approach to Stud' of Jurisprudence 10
Significance and Utility of Jurisprudence 11
Relation of Jurisprudence with other Social Sciences 13
Jurisprudence and Sociology 14
Jurisprudence and Psychology 15
Jurisprudence and Ethics 16
Jurisprudence and Economics 17
Jurisprudence and History 17
Jurisprudence and Politics
Synthetic Jurisprudence 18

CHAPTER Two
THE NATURE OF LAW 23
Definition of Law 23
Austin's Theory of Law 27
Criticism of Austin's Theory of Law 29
• Laws before State 29
• Generality of Law 30
 XII JURISPRUDENCE AND LEGAL THEORY
THE NATURE OF LAW (Contd.)
• Promulgation
31
• Law as Command
31
• Sanction
32
• Not applicable to International Law 32
• Not applicable to Constitutional Law
33
• Not applicable to Hindu Law etc.
33
• Disregard of ethical elements
33
• Purpose of Law ignored
34
• Salmond on Austin's theory of law
• Merit of the Theory 34
35
Salmond's Definition of Law
36
• Criticism
36
Legal Sanctions
Territorial Nature of Law 39
41
Purpose and Function of Law
43
Uses or Advantages of Law
46
Disadvantages of Law
47
Questions of Law and Fact
48
• Questions of Law
48
• Questions of Fact
49
Questions of Fact and Discretion
50
Mixed Questions of Law and Fact
51
Transformation of questions of Fact into Law 51
Discordance between Law and Fact
51
Legal Presumptions
51
Legal Fiction (Fictio Juris)
52
CHAPTER THREE
KINDS OF LAW
Imperative law 55
55
Physical or Scientific Laws
56
Natural Law or Moral Law
56
Conventional Law
6o
Customary Law
6o
Practical or Technical Law
61
International Law
61
• Nature of International Law
62
Civil Law
65
Common Law
66
Equity
68
Constitutional Law
69
• Amendment
72
• Sources of English Constitutional Law
72
• Administrative Law
73
 DETAILED CONTENTS XIII

KINDS OF LAW (Contd.)

• General Law and Special Law 74
• Kinds of Special Law 75

CHAPTER FOUR
CLASSIFICATION OF LAW 81
International Law and MunicaI Law 81
Municipi Law 82

CHAPTER FIVE
LAW AND MORALS 85
Distinction between Law and Morals 86
• Hart
87
Relationship between Law and Morals 90
• View of Hart 90
• Pound on four stages 91
Morals as' part of Law 93
Legal Enforcement of Morals 93
Influence of Morals on Law 94

CHAPTER Six
STATE AND SOVEREIGNTY 97
Definition of State 97
Elements of the State 98
Functions of the State: Primary and Secondary 99
Unitary and Comsite States 100
The State and Law 101
Sovereignty 103
• Salmond 103
• Dicey 104
• Jethrow Brown 104
• Kelsen 104
• Duguit 105
• Pluralists 105
• Marxist view 105
• Austin's Theory of Sovereignty 105

CHAPTER SEVEN
ADMINISTRATION OF JUSTICE 115
Importance of justice 115
Administration of justice 115
• Necessity of Administration of Justice 116
• Origin and Growth of Administration of Justice 117
XIV JURISPRUDENCE AND LEGAL THEORY

ADMINISTRATION OF JUSTICE (Contd)

Advantages and Disadvantages of Legal Justice
Public Justice 119
Justice according to Law 119
Civil and Criminal Justice 120
• Purpose of Criminal Justice 122
Kinds of Punishment 132
Civil Justice 145
• Primary and Sanctioning Rights 145
• Penal and Remedial Proceedings 146
• Secondary Functions of Courts of Law 146

CHAPTER EIGHT
SOURCES OF LAW 151
Meaning of Source of Law 151
Material Sources: Legal and Historical 153
Legal Sources of English Law 156
Sources of Law and Sources of Rights 1157
Ultimate Legal Principles 1157

CHAPTER NINE
LEGISLATION 159
Legislation as Source of Law 159
Supreme and Subordinate Legislation i6o
• Subordinate Legislation 160
Legislation and Precedent,; 164
Legislation and Custom 164
Advantages of Legislation over Precedent 165
Advantages of Precedent over Legislation 167
Codification 168
• Kinds of Codification 169
• Merits 170
• Demerits 171
Rules of Interpretation 174
• Grammatical Interpretation 174
• Logical Interpretation 177
• Strict and Equitable Interpretation 178
• Restrictive and Extensive Interpretation 179
• Historical Interpretation 179
• Sociological Interpretation 180
• Equity of a Statute 181
• Rule of Casus Omi;sus 181
Rules of Interpretation ot Statutes 182
 DETAILED CONTENTS xv

CHAPTER TEN
PRECEDENT 191
Precedent as Source of Law 191
Nature of Precedent 193
Authority of Precedent 193
• Circumstances which destroy or weaken the binding
force of precedent 195
• Circumstances which increase the authority of a
precdent 199
• Do Judges Make Law? 199
Methods of Judicial Decisions 205
Dc: ects in Judicial Legislation 205
K ds of Precedents 206
(1) Authoritative and Persuasive 206
(2) Absolute and Conditional Precedents 207
(3) Declaratory and Original Precedents 210
Stare Decisis 210
Decisions reached per incuriam 213
Decisions sub silentio 214
Doctrine of Prospective Overruling 215
Ratio Decidendi 215
Obiter Dictum 217
Decision on Authority and Decision on Principle 218
Disregard of Precedent 218
Precedent and Legal Development 219
Sources of Judicial Principles 221
Functions of Judges and Jury 221

CHAPTER ELEVEN
CUSTOM 225
Definition 225
Origin of Custom 226
Binding Force of Custom 228
Theories regard i ng Transformation of Custom into Law 229
(a) Historical l heory 229
(b) Analytical Theory 231
Kinds of Customs 233
• Legal Custom 233
• Conventional Custom or Usage 234
• The Law Merchant 235
• Legal Custom 236
• General Custom 237
Requisites of a Valid Custom 238
'tstom and Prescription 240
resent Position of Customary Law 241
XVI JURISPRUDENCE AND LEGAL THEORY

CHAPTER TWELVE
PROFESSIONAL OPINIONS AND RELIGION 243
Professional Opinions
243
Religion
247
Agreement
247

CHAPTER THIRTEEN
LEGAL RIGHTS AND DUTIES 249
Legal Wrong
249
Duty
250
Definition of Legal Rights 252
Theories about Legal Rights 255
Essentials of a Legal Right 257
Parties to a Legal Right 258
Enforcement of Legal Rights 259
Extinction of Rights 259
Relation between legal right and legal liberty 259
Right and Power 260
Powers and Immunity 260
Relation between Rights and Duties 261
Ownerless Rights 263
Classification of Rights according to their Objects 264
Legal Rights in a Wider Sense 266
Kinds of Legal Burdens 267
Rights and Duties of the State 268
Rights against State 269
Estate and Status 270
Rights of Beneficiary 271
Kinds of Civil Rights 272
Kinds of Legal Rights 272
(i) Perfect and Imperfect Rights 272
(z) Positive and Negative Rights 273
() Real and Personal Rights 274
() Rights in rem and Rights in personarn 275
(5) Proprietary and Personal Rights 276
(6) Inheritable and Uninheritable Rights 277
() Rights in re propria and rights in re aliena 277
(8) Principal and Accessory Rights 278
() Legal and Equitable Rights 278
(10) Primary and Secondary Rights or Antecedent and
Remedial Rights 280
(1') Public and Private Rights 280
(12) Vested and Contingent Rights 281
(13) Ser ' lent and Dominant Rights 281
(14) Municipal and International Rights 281
 DETAILED CONTENTS XVII
LEGAL RIGHTS AND DUTIES (Contd.)
(15) Rights at Rest and Rights in Motion 282
(16) Ordinary and Fundamental Rights 282
(17) Jus ad rem 282
CHAPTER FOURTEEN
OWNERSHIP AND POSSESSION 285
• Development of the Idea of Ownership 285
Definition of Ownership 286
• Austin 286
• Holland 287
• Markby 288
• Hibbert 288
• Paton
288
• Salmond 289
Criticism
290
Essentials of Ownership 290
Subject-Matter of Ownership
292
Right of Ownership and Ownership of a Right 293
Modes of Acquisition of Ownership 293
Different Kinds of Ownership 294
• Corporeal and Incorporeal Ownership 294
• Trust and Beneficial Ownership 294
• Legal and Equitable Ownership 298
• Vested and Contingent Ownership 299
• Distinction between condition precedent and subsequent 303
• Sole Ownership and Co-ownership 303
• Co-ownership and Joint Ownership 304
• Absolute and limited ownership 305
• Importance 306
• Development of the Concept of Possession 308
• Possession in Fact and in Law 308
• Elements of Possession 309
• Corpus of Possession 309
• Animus Possidendj 313
• Savigny's Theory of Possession 314
• Methods of Transfer of Possession 318
• Kinds of Possession 320
• Why possession is protected? 323
• Possessory Remedies 325
• Possessory Remedies and Doctrine of los Tertii 326
Distinction between Possession and Ownership 326
CHAPTER FIFTEEN
PERSONS 331
Definition 331
• Legal Status of Lower Animals 332
• Legal Status of Dead Persons 333
• Status of Unborn Person 335
• Legal status of Idol 336
• Legal status of Mosque 336
Kinds of Persons 336
• Kinds of Legal Persons 338
• Theories of Corporate Personality 341
• Judicial Decisions 352

CHAPTER SIXTEEN
TITLE 357
Definition and Nature of Title 357
Classification of Titles 358
• Act in the Law 359
Importance of Agreements 360
Kinds of Agreements 360
Validity of Agreements 361
Modes of Acquiring Possession 362
Modes of Acquiring Ownership 362

CHAPTER SEVENTEEN

LIABILITY 365
Definition and Nature 365
Kinds of Liability 365
• Civil Liability 365
• Remedial Liability 366
• Penal Liability 367
• Vicarious Liability 368
• Absolute or Strict Liability 371
General Conditions of Liability 372
• Act 373
• Circumstances of the act 375
• Mens rea (guilty mind) 375
• Stages in the Commission of a Crime 381
• Jus Necessitas 382
• Intention 384
Measure of Penal Liability 393
Measure of Civil Liability 394
• Crime and Tort 395
• Exemptions from Criminal Liability 396
 DETAILED CONTENTS XIX

CHAPTER EIGHTEEN
LAW OF PROPERTY 399
Meaning of Property 399
Kinds of Property 400
• Corporeal Property 400
• Incorporeal Property 401
Modes of Acquisition of Property 406
Theories of Property 409

CHAPTER NINETEEN
THE LAW OF OBLIGATIONS 413
Definition of Obligation 413
• Chose in Action 414
• Chose in Possession 414
Solidary Obligations 414
• Three Kinds of Solidary Obligations 415
Sources of Obligations (Kinds of Obligations) 417

CHAPTER TWENTY
THE LAW OF PROCEDURE 421
Law of Procedure and Substantive Law 421
Elements of Judicial Procedure 424
Definition of Evidence 424
• Kinds of Evidence 425
• Production of evidence 426
• Probative value of evidence 427

CHAPTER TWENTY ONE

LEGAL THEORY 431

CHAPTER TWENTY Two

ANALYTICAL LEGAL POSITIVISM 437
Different Approaches 437
Positivism in Law 437
Analytical School 439
• Bentham (1742-1832) 441
• John Austin (1790-1859) 446
• H. L. A. Hart (19o7) 458
• Primary and SecorJary Rules 460
XX JURISPRUDENCE AND LEGAL THEORY

CHAPTER TWENTY THREE

PURE THEORY OF LAW 471
The Basic Norm 473
Implications of Pure Theory 474
Criticism 477
Contribution of Kelsen 430
Kelsen and Bentham 482

CHAPTER TWENTY FOUR

HISTORICAL SCHOOL OF LAW 483
• Montesquieu 484
• Hugo 484
• Burke 485
• Herder 485
• F. K. Von Savigny (1779-1861) 486
• Puchta (1798-1856) 495
• Gierke (1841-1921) 495
• Sir Henry Maine (1822-1888) 496
Estimate of Historical School 505
Comparison of Historical and Analytical Schools 506
Distinction between Legal History and Historical Jurisprudence 507

CHAPTER TWENTY FIVE

THE PHILOSOPHICAL SCHOOL OF LAW 509
Jurisprudence and Ethics 510
Exponents of Philosophical School 511
• Grotius 511
• Immanuel Kant (1724-1804) 512
• Fichte 514
• Hegel 514
• Kohler (1849-1919) 518
• Stammler (1856-1938) 519
• Del Vecchio 521

CHAPTER TWENTY SIX

SOCIOLOGICAL SCHOOL 523
• Montesquieu (1689-1755) 524
• Auguste Comte (1798-1857) 525
• Durkheim (1858-1917) 525
• Herbert Spencer (1820-1903) 526
• Duguit (859-1928) 526
• Gierke (1841-1921) 532
• Hauriou (1856-1929) 533
 DETAILED CONTENTS XXI

SOCIOLOGICAL SCHOOL (Contd)

• Max Weber (1864-1920) 534
• Rudolf von Ihering (1818-1898) 534
• Eugen Ehrlich (1862-1922) 539
• Roscoe Pound (1870-1964) 545
• Karl Renner 557
• Pashukanis 557
• Parsons 557
• Stone 558
Conclusion 558

CHAPTER TWENTY SEVEN

AMERICAN REALISM 563
• Gray (1839-1915) 565
• Justice Holmes (1841-1935) 565
• Jerome Frank (1889-1957) 567
• Carl N. Llewellyn (1893-1962) 570
Assessment of the Realist Movement in 1961 575
Estimate 578

CHAPTER TWENTY EIGHT

THE SCANDINAVIAN REALISTS 581
• Hagerstrom (1868-1939) 582
• Olivecrona (1897—) 583
• Ross (1899—) 586
• A.V. Lundstedt 589
• Criticism of theRealists in General 592
• Contribution of the Realists 593

CHAPTER TWENTY NINE

NATURAL LAW 595
• Greece 596
• The Middle Ages 599
Natural Law and Social Contract 603
Decline of Natural Law Theories 613
Natural Law Ideas in English Law 615
Natural Law in American Jurisprudence 616
Revival of Natural Law Theories 617

SUBJECT INDEX 635