Jurisprudence

The study of jurisprudence started with the Romans.The term

Jurisprudence is derived from Latin word 'Jurisprudentia' which
means either "Knowledge of Law" or "Skill of law". The word
"juris" means law and prudentia mean knowledge, science or
skill. Thus Jurisprudence signifies knowledge or science of law
and its application. In this sense, Jurisprudence covers the whole
body of legal principles in the world.

1) Jurisprudence: Meaning:

Jurisprudence in its widest sense means. "

knowledge of the law" but in its limited sense evolution and
explanation of general principles upon which actual rules of law
are based. It is mainly concerned with the rules of external
conduct which people are compelled to obey.

Jurisprudence is that science which gives us knowledge about

"law" but the term law we always use in its abstract sense i.e. not
in the sense of concrete statutes but in the sense of principles
underlying law.

It is the study of the basic principles of each of these branches

and are not concerned with the detailed rules of these laws.

Jurisprudence may be considered to be the study and systematic

arrangements of the general principles of law.

2) Definition of Jurisprudence:

It is very difficult to define term 'jurisprudence', However,

several attempts were made in this context to define the
term. Some of the definitions of the term "jurisprudence" given
by various eminent jurists as under -
Austin :

Austin was the first jurist to make jurisprudence as

a science. He defines 'jurisprudence' as "the philosophy of
positive law."

The term ‘law’ denotes different kinds of rules and principles.

Law is an instrument which regulates human conduct or
behaviour.

Therefore, Law is a broader term which includes Acts, Statutes,

Rules, Regulations, Orders, Ordinances, Justice, Morality,
Reason, Righteous, Rules of court, Decrees, Judgment, Orders of
courts, Injunctions, Tort, Jurisprudence, Legal theory, etc.

Meaning of Law:
The term law has been derived from the Latin term
‘Legam’ which means the body of rules.

LAW= DERIVED FROM LATIN WORD = LEGAM = BODY OF

RULES
All these words convey different meaning. Thus, the term law has
different meanings in different places/societies at different times
as it is not static and it continues to grow.

 Generally, the term law is used to mean three things:

o Legal Order: Firstly, it is used to mean ‘legal order’. It
represents the regime of adjusting relations, and
ordering conduct by the systematic application of the
force of organized political society.
o Legal Precepts: Secondly, law means the whole body
of legal precepts which exists in an organised political
society.
 o Official Control: Thirdly, law is used to mean all
official control in an organised political society.

Definitions of Law:
It is very difficult to define the term law. Various jurists have
attempted to define this term. Some of the definitions given by
jurists in different periods are categorized as follows:
According to Salmond, “the law may be defined as body of
principles, recognised and applied by the State in the
administration of justice”.
According to Gray-, “the law of the state or of any organised
body of men is composed of the rules which the courts, that is the
judicial organ of the body lays down for the determination of legal
rights and duties.”
Austin: Austin defined law as a command of sovereign backed by
sanction. According to him there are three elements of law, i.e

 command,

 duty

 sanction.

Thus, every law have a command and due to this command we

have a duty to obey this command and if don’t obey this
command, then there is a sanction.

 H.L.A. Hart: He defined law as a system of rules- the

primary and secondary rules.

According to Roscoe Pound, “The expression ‘the law’ or law

means the legal system operating in a country. On the other hand,
the term ‘a law’ is termed as lex loci in Latin which means a
particular statute in its isolated form.”
Theories Of The Functions Of Law
Different people have suggested different functions of the law in
the society. But these various functions of law can be
categorized according to the following theories:

1. Consensus Model
2. Conflict or Pluralist Model
3. Open Model
4. Marxist Theory

1. The Consensus Model

This theory perceives law as protecting the societys shared beliefs

or social values to which “everyone in the society subscribes.
According to this theory, the society is unitary having monolithic
and universally shared value system. Therefore, conflicts that
may be in such society are on a personal level.
2. Conflict or Pluralist Model
The law operates to harmonize conflicting This theory denies that
there is a shared value system in the society. Rather it contends
that there exists conflictng groups, all of which are assumed to
have equal bargaining powers
such that the constant interaction between them helps to a
ttain social stability and equilibrium. Under this theory, the
state is a neutral arbiter providing only the machinery for conflict
settlement either through political debate or policy making. So,
the law is used as tool for harmonizing conflicting groups.
3. Open Model
According to this model, conflicts in society are between interest
groups and can be resolved through

 Negotaton
 Arbitraton
 Litgaton
 Electoral process, etc.

without necessarily resulting to revolution.

4. The Marxist Theory
According to Karl Marx, primitive societies were free from
antithesis or conflicts. That the law was introduced as a tool of
exploitation by the ruling class over the working class. This
status quo will continue as long as confrontation is avoided.
Revolution is however the only effective way of dethroning the
ruling class and enthroning the working class. It is believed that
only then will equality be restored in the society.
Functions/Purposes of Law
The law serves many purposes and function in society. Many
jurists have expressed different views about the purpose and
function of law.
· For example:
According to Holland: “the function of law is to ensure well being
of the society.” Thus it is something more than an institution for
the protection of individual’s rights.

The following are the major functions or purposes of law:

 Establishing Standards: The law is a guidepost for minimally

acceptable behaviour in society. Some acts, e., are crimes
because society (through legislative body) has determined that
it will not tolerate certain behaviours that injure or damage
persons or their property. (for example, it is a crime to cause
physical injury to another person without justification, as it is
generally constitutes the crime of assault).
 Maintaining Order: Some semblance of order is necessary in a
civil society and is therefore reflected in law.
 Resolving Disputes: Disputes are unavoidable in a society
made of persons with different needs, wants, values and views.
The law provides a formal means for resolving disputes – the
court system.
 Protecting Freedoms and Rights: Every person has some
fundamental freedoms and rights and it is the function of law
to protect these freedoms and rights from violations by
persons, organisations or government. (For example, subject to
certain exception, there is a fundamental right of equality
before law, i. every person is equal in the eyes of law and if any
person feels that his fundamental right is violated may
approach the court for remedy.)
Kinds/Classification of Law

1.Natural or Moral Law: Natural law is based on the

principles of right and wrong. It also called universal or eternal
law, rational law. It embodies the (1) principles of morality
and is devoid of any physical compulsion. Many laws of the
modern time are founded on the basis of natural law. E. law of
quasi contract, the conflict of law, law of trust etc. are founded
on natural justice.

(2) Conventional law: It is the body of rules or system of

rules agreed upon by persons for their conduct towards each
other. E., international law and rules of club or cooperative
societies, rules of game or sport are best examples of
conventional law.

(3) Customary law: There are many customs which have

been prevalent in the community from time immemorial even
before the States came into existence. They have assumed the
force of law in course of time. (e. under hindu personal law, a
man can’t marry his brother’s widow, however, if there is any
custom which allows the same then the marriage will be valid).
According to Salmond, “any rule of action which is actually
observed by men when a custom is firmly established, it is
enforced by State as law because of its general approval by the
people.

(4) Practical or Technical Law: Practical laws are the rules

meant for a particular sphere by human activity, e. laws of
health, laws of architecture.

(5) International law: It also knows as law of nations as it

applies to States rather than individuals. It consists of rules
which regulate relations between the States inter-se.

(6) Civil Law: The law enforced by the State is called civil law
and it contains sanction behind it. Civil law is territorial in
nature as it applies within the territory of the State concerned.
Civil law differs from special as the latter applies only in
special circumstances.
 Sources Of Law
 Legislative.
 Precedents.
 Customs.
 Opinion juris (statutory interpretation and preparatory
works).
 Justice equity and good conscience.

Sources of law means the origin from which rules of human

conduct come into existence and derive legal force or binding
characters. It also refers to the sovereign or the state from which
the law derives its force or validity. Several factors of law have
contributed to the development of law. These factors are regarded
as the sources of law.

Legislation as a source of law

Legislation refers to the rules or laws enacted by the legislative
organ of the government. It is one of the most important sources
of law in jurisprudence. The word legislation is derived from the
words legis and latum, where legis means law and latum means
making.

Types of legislation

According to Salmond, legislation can be classified into two

types- Supreme and Subordinate.

1. Supreme legislation
Legislation is said to be supreme when it is enacted by a supreme
or sovereign law-making body. The body must be powerful to the
extent that the rules or laws enacted by it cannot be annulled or
modified by another body.
2.Subordinate legislation

Legislation enacted by a subordinate law-making body is said to

be subordinate legislation. The subordinate body must have
derived its law-making authority from a sovereign law-making
body. It is subject to the control of the supreme legislative body.
The following are the different kinds of subordinate legislation:

 Executive legislation: This is a form of subordinate

legislation where the executive is granted or conferred
certain rule-making powers in order to carry out the
intentions of the legislature.
 Colonial legislation: Many territories across the globe were
colonised by Britain and such territories were called
colonies. The legislation passed by the legislature of such
colonies was subject to the control of the British
Parliament.
 Judiciallegislation: Courts also have a role in enacting
laws that aid in regulating the internal affairs and
functioning of courts.
 Municipal legislation: Municipal authorities also possess
the law-making power as they enact bye-laws.
 Autonomous legislation: Another kind of legislation is
autonomous legislation, which is concerned with bodies
like universities, corporations, clubs, etc.
 Delegated legislation: Sometimes legislative powers may be
delegated to certain bodies by the parliament through
principal legislation. A principal act may create subsidiary
legislation that can make laws as provided in the principal
legislation.

Custom as a source of law

Custom refers to the code of conduct that has the express
approval of the community that observes it. In primitive societies,
there were no institutions that acted as authority over the people.

They eventually started recognising the traditions and rituals

practised by the community routinely and formed a systematised
form of social regulation. In India, laws relating to marriage and
divorce are mostly developed from customs followed by different
religious communities.

Requisites of a valid custom

1. Reasonability: The custom must be reasonable or

practical and must conform with the basic morality
prevailing in the modern-day society.
2. Antiquity: It must have been practised for time
immemorial.
3. Certainty: The custom must be clear and unambiguous
on how it should be practised.
4. Conformity with statutes: No custom must go against
the law of the land.
5. Continuity in practice: Not only the custom must be
practised for time immemorial, but it should also be
practised without interruption.
6. Must not be in opposition to public policy: The custom
must adhere to the public policy of the state.
7. Must be general or universal: There must be unanimity
in the opinion of the community or place in which it is
practised. Hence, it should be universal or general in its
application.

Sir Henry Maine’s views on customs

According to Sir Henry Maine, “Custom is conception posterior to

that of Themistes or judgments”. Themistes refers to the judicial
awards dictated to the King by the Greek goddess of justice. The
following are the different stages of development of law according
to Henry Maine:

1. At the first step, law is made by rulers who are inspired by

the divine. Rulers were believed to be messengers of God.
2. At the second stage, following rules becomes a habit of the
people and it becomes customary law.
3. At the third stage, knowledge of customs lies in the hands
of a minority group of people called the priestly class. They
recognise and formalise customs.
 4. The final stage is the codification of customs.

Types of customs

Customs that are meant to be followed by law are called customs

with a binding obligation. They are not related to social
conventions or traditions. There are mainly two types of customs
with binding obligations- Legal customs and Conventional
customs.

1. Legal customs: Legal customs are absolute in sanction.

They are obligatory in nature and attract legal
consequences if not followed.

Two types of legal customs are general customs and local

customs.

General customs are enforced throughout the territory of a

state.

Local customs on the other hand operate only in

particular localities.

2. Conventional customs: Conventional customs are those

customs that are enforceable only on their acceptance
through an agreement. Such a custom is only enforceable
on the people who are parties to the agreement
incorporating it.

Two types of conventional customs are general

conventional customs and local conventional customs.

General Conventional Customs are practised throughout a

territory.

Local Conventional Customs on the other hand is

restricted to a particular place or to a particular trade or
transaction.
 Difference Between Custom and Prescription
In jurisprudence, the main difference between custom and
prescription is that custom gives rise to law, while prescription
gives rise to a right:
 Custom
A long-established practice or unwritten rule that has become
legally enforceable. Customs are a recognized source of law in
the Civil law tradition.
 Prescription
A right or title that is acquired through long custom. For
example, if a person's ancestors have grazed their cattle on a
particular land for years without restriction, they acquire the
right to graze their cattle on the land.
Here are some other differences between custom and
prescription:
 Origin
Custom originates from long usage, while prescription originates
from a waiver of a right.
 Scope
Custom is lex loci and inherent in the soil, while prescription is
fixed in the person.
 Time
The old rule as to time immemorial still subsists in the case of
custom, but prescription is governed by Statutory prescribed
time.

Precedent as a source of law

Judicial Precedents are an important source of law. They have

enjoyed high authority at all times and in all countries. Judicial
precedents are an important source of law, especially when it
comes to the common law system. It needs to be noted that the
common law system evolved and evolves due to judicial
precedents.

According to Salmond: “The great weightage of the unwritten law

is almost entirely the product of outside cases, collected in an
enormous series of reports extending backward, if it’s not in theory,
the common law of England has been created by the decisions of
English judges.”

Blackstone writes: “For it is an established rule to respect the

former precedents, where the same points come again in litigation,
as to keep the rule of justice even and different and not liable to with
every judge’s opinion, as also because the law, in that case, being
perfectly declared, what before was uncertain has now become the
permanent rule, subsequent judge to alter according to private
opinions.”

This principle isn’t just the evidence of laws but also the source of
law. It is a way to persuade the judges. Cases decided by the court
with no thought on rule of law, cannot be treated as precedent.

But according to some authors such as Stobbes and Savigny,

Precedents are not sources of law but are mere evidence of
customary law.

According to Stobbes “Judicial Precedent is a practice and hence

in practice itself cannot be considered as a source of law.”

It is a settled position that precedents are purely constitutive and

in no degree propagative, that is a Judicial decision can make a
law but not alter it.

Binding effect of Precedent

Article 141 of the Constitution states that: “Law declared by

Supreme Court to be binding on all courts – The law declared
by the Supreme Court shall be binding on all courts within the
territory of India.

This article institutes that the law announced by the Supreme

Court will be restricting “all courts” in the region of India. The term
“law declared” infers the law-making function of the court. The
expression ‘all courts’ means the lower courts. The decision of the
Supreme Court is restricting on the High Courts and they can’t
overlook it on the ground that pertinent rules were not considered
by the Supreme Court while the decision was made and therefore
its decision is not binding. The judges must follow the past
decisions cautiously in the cases before them and use it as a
manual for all present or future decisions. The law pronounced by
the Supreme Court is restricting on the State and its officials, and
they will undoubtedly follow it whether the respondents in a
specific case were parties or not to the petition. Even the orders
released by the court in a ruling are considered to be a binding law
under Article 141. The Supreme Court has the power to overrule
its prior decisions by either explicitly overruling it or implicitly by
not following it in future cases. They have the power to reverse
their decisions on constitutional matters if they think it is flawed.

In Sajjan Singh v. the State of Rajasthan the Supreme Court said:

“Indeed, the Constitution does not place any restriction on our

powers to review our earlier decisions or even to depart from them
and there can be no doubt that in matters relating to the decisions
of constitutional points which have a significant impact on the
fundamental rights of citizens, we would be prepared to review our
earlier decisions in the interest of public good. The doctrine of stare
decisis may not strictly apply in this context and no one can dispute
the position that the said doctrine should not be permitted to
perpetuate erroneous decisions pronounced by this Court to the
detriment of the general welfare.”

Even so, the general instruction that judgments given by the

Supreme Court would be binding, ought not to be disregarded and
unless factors of significant and persuasive appeal make it
necessary to do so, the Supreme Court would be delayed to
question the rightness of past choices or to withdraw from them.
However, the Supreme Court will audit its previous ruling even
though the ruling has held the field for an extensively significant
time-frame, on the off chance that it is satisfied with its mistake or
the pernicious impact which a decision would have on the overall
interest of the general public, or if it is “inconsistent” with the
philosophy of our Constitution. If there is an obvious struggle
between decisions of the Supreme Court, the opinion presented by
bigger Benches of the Supreme Court should be continued in
inclination to those of smaller Benches, except if the former can be
recognized by giving reasons. Regardless of whether out of
oversight or in any case a Constitution Bench ruling of at least five
judges has not been followed by smaller Benches in subsequent
cases, the Constitution Bench decision should be followed when it
is brought to light in the court. The ruling of smaller Benches in
cases like this shall be termed as per incuriam.

The precedential value of a decision like this has been explained

by the court in State of M.P V. Narmada Bachao Andolan“the
Court should not place reliance on decisions without discussing as
to how the fact situation of the case before it fits in with the fact
situation of the decision on which reliance is placed because one
additional or different fact may make a world of difference between
conclusions in two cases”

The Supreme Court may likewise audit its prior decision if some
patent parts of the case stayed unseen, or if the consideration of
the court was not attracted to any important and material legal
provisions, or if any past rulings of the court similar to the fact of
the matter were not seen, or if the decision was wrong.

Kinds of precedents

1) Authoritative precedents
Authoritative precedents are final and binding on all lower courts.
The approval of the lower courts is irrelevant. As indicated by
Salmond, Authoritative Precedent is a source of law. It builds up
law in the acquirement of a definite rule of law which gives upon
them that impact.

There are 2 types of Authoritative Precedents:

Absolute:
With respect to Absolutely authoritative Precedents, they Judges
must abide by it regardless of whether they support them or not.
They are qualified for implied compliance.

Conditional
In the case of conditional authoritative Precedents, the Court can
ignore them under particular conditions. Generally, it is
mandatory however under extraordinary state of affairs, it can be
dismissed.

2) Persuasive Precedents
A persuasive Precedent is one that the Judges though not under
any obligation to follow, and will take into consideration while
making a decision. It acts as a guiding force and helps the Judge
to reach a conclusion. They don’t have any legal power or impact
on themselves. The Persuasive Precedents is used as a reference
and it depends on the Judge solely whether to follow them or not.

3) Original Precedents
Original Precedents makes the law. These precedents are for the
most part created when no previous reference is existing for a
specific source of law. The adjudicators go to a relation when they
need to shape unique points of reference.

4) Declaratory Precedents

As per Salmond, a declaratory precedent is simply the utilization

of an already prevailing law. Similar to an original Precedent, a
declaratory Precedent is a good source of law.

Theories of Jurisprudence

1)NATURAL LAW THEORY OF JURISPRUDENCE

There is no unanimity about the definition and exact meaning of
Natural Law.
In jurisprudence = ‘Natural Law’ = rules and principles which are
supposed to have originated from some supreme source other
than any political or worldly authority.
It symbolizes Physical Law of Nature based on moral ideals which
has universal applicability at all places and terms. It has often
been used either to defend a change or to maintain status quo
according to needs and requirement of the time.
Natural Law is also the Law of Reason, as being established by
that reason by which the world is governed, and also as being
addressed to and perceived by the rational of nature of man. It is
also the Universal or Common Law as being of universal validity,
the same in all places and binding on all peoples, and not one
thing at Athens.
Lastly in modern times we find it termed as “moral law” as being
the expression of the principles of morality. The Natural Law
denies the possibility of any rigid separation of the ‘is’ and ‘ought’
aspect of law and believes that such a separation is
unnecessarily causing confusing in the field of law. The
supporters of Natural Law argue that the notions of ‘justice’,
‘right’ or ‘reason’ have been drawn from the nature of man and
the Law of Nature and, therefore, this aspect cannot be
completely eliminated from the purview of law. It has generally
been considered as an ideal source of law with invariant
contents.
Features of Natural Law:

 Natural Law is eternal and unalterable, as having existed

from the commencement of the world, uncreated and
immutable.
 Natural Law is not made by man; it is only discovered by
him.
 Natural Law is not enforced by any external agency.
 Natural Law is not promulgated by legislation; it is an
outcome of preaching of philosophers, prophets, saints etc.
and thus in a sense, it is a higher form of law.
 Natural Law has no formal written Code.
 Also there is neither precise penalty for its violation nor any
specific reward for abiding by its rules.
 Natural Law has an eternal lasting value which is
immutable.
 Natural Law is also termed as Divine Law, Law of Nature,
Law of God, etc. Divine Law means the command of God
imposed upon men.

Major Proponents of Natural Law

John M Finnis, Lon Fuller, Thomas Hobbes, John Locke &
J.J made the most important contributions to the revival of the
theory of natural law.

2) HISTORICAL SCHOOL OF JURISPRUDENCE

It may be defined as history of fundamental principles of a legal
system. Historical school of Jurisprudence argued that the law is
the exaggerative form of social custom, economic needs,
conventions religious principles, and relations of the people with
society. The historical school follows the concept of man-made
laws. ‘Law is formulated for the people and by the people’ means
that the law should be according to the changing needs of the
people. And everyone understand their own need better than
anyone else.
The followers of this school argued that law is found not made.
The historical school doesn’t believe and support the idea of the
natural school of law which believe that the origin of law is from
superior authority and have some divine relevance
Savigny (1779-1861)
Savigny is regarded as a father of the Historical school. He was a
German Philosopher, in 1810 he went to work as a professor at
the University of Berlin. In 1803 he established his reputation
with a book The Jus Possessionis of the Civil Law.
The Law has source within the general consciousness of the
people. He said that Law develops like language and Law features
a national character. Law, language, customs and government
haven’t any separate existence. There’s one force and power in
people and it underlies all the institutions. The law, language,
develops with the lifetime of people.

 Savigny’s theory is often summarized as follows:

i. Law is found and not made.

ii. According to him, law is Volkesgeist.

Volkesgeist = Volkes + Geist i.e.

(People Consciousness) = (People )+ (Consciousness)
Therefore, people Consciousness is Law

i. That may be a matter of unconscious and organic growth.

No efforts are needed to make the law.
ii. Law cannot be of universal validity nor be constructed on
the basis of certain rational principles or eternal principles.
Savigny argued that law is like the language having its own
national character. So, it can’t be universally applied and
varies according to the people.

Basic Concept of Savigny’s Volksgeist

Volksgeist means “national character”. According to Savignty’s
Volksgesit, the law is the product of general consciousness of the
people or will. The concept of Volksgeist was served as a warning
against the hasty legislation and introduce the revolutionary
abstract ideas on the legal system. Unless they support the
general will of the people.
Basically, Savigny was of the view that law should not be found
from deliberate legislation but should be made and arises out of
the general consciousness of the people.
Criticism of Savigny’s theory

1. Inconsistency within the theory: He emphasized the

national character of law, but at the equivalent time he
recommended a way how the Roman law are often adapted.
2. Customs not always supported on popular
consciousness: Savigny’s view is whole not perfectly sound,
because many customs originated just for the convenience
of a powerful minority. Sometimes, customs completely
against one another exist within the different parts of the
country which can’t be reflecting the spirit of the whole
community.
3. He ignored other factors that influence law: Another
criticism against him was ‘so occupied with the source of
law that nearly forgot the stream’. The creative function of
the judge was also ignored by the Savigny’s theory.
4. Many things were unexplained: Certain traits, like mode of
evolution and development weren’t explained by the
Savigny.

3) Analytical school

The major premise of analytical School of

jurisprudence is to deal with law as it exists in the
present form.Analytical school is known in various
names such as:

The Austinian school since this methodology is set up by John

Austin.
The imperative school since it regards law as the direction
(command) of the sovereign.
The Positivist School because the exponents of this school are
concerned neither with the past nor with the future of law but
with law as it exists i.e., with law `as it is` (positum), the word
positivism was given by august comete.

Truth be told, it was Austin who propounded the theory of

positive law, the establishment of which was laid by Bentham
One of the fuctions of analytical school is, as the name suggest,
analysis or decomposition of law into irreducible elements.

John Austin

Austin is known as the father of English Jurisprudence.

According to him,
'Law is a command of sovereign backed by a sanction.'He regards
law as the direction of the politically powerful authority backed
by a sanction. This means that Law is whatever the Law-Maker
(the one with the authority to make laws) says and it supersedes
judgements by judges/precedents etc.

He distinguishes law from morality. He divides law into two parts:

Divine law: Law set by God for men

Human Law: Laws made by men for men.

Austin's positivists approach further laid down the foundation of

English jurisprudence.

Austin (1790 – 1859)

John Austin is the founder of the Analytical school and father of
the English Jurisprudence. He was born in 1790. He was elected
to the chair of Jurisprudence at the University if London in 1826.
His lectures delivered in the London University were published in
1832 under the title ‘the Province of Jurisprudence Determined’.
Austin defined law as ‘a rule laid down for the guidance of
intelligent being by an intelligent being having power over him’.

 Austin’s Definition of Law

“Law is a command of the sovereign backed by a sanction.”

LAW = COMMAND + SOVEREIGN + SANCTION
His notion was that where there is no sovereign, there is no
independent political society and vice versa is also applicable. For
him, Law, was a set of rules established by men as politically
superior, or sovereign, to men as politically subject.
The fundamentals of his theory are: Command, Sovereign and
Sanction.

1. Command: Commands are the rules or expressions of

imposed by a superior authority (by force or compulsion) on
the Inferiors. The former is the sovereign which authorize
the rules of conduct of the latter, the general public.

The commands may be

 General Command = issued for the guidance of a whole

community, or
 Particular command = issued for the guidance of a
particular community/ Individual.

Austin emphasizes that only General Commands form laws and

they must be lawful and continuous.

 Sovereign: Sovereign is a source of law and every rule

emerges from a sovereign. A sovereign may be any
individual or body of individuals, whom the politically
influenced mass of people habitually follow. However, he
himself does not obey an individually or body of individuals.
 Sanction: To ensure and administer justice the state,
applies physical force as sanction. Therefore, it is the sole
crux of Positive Law. It instils fear of punishment in case
one disobeys the laws. Sanction is related to duty shaped by
 the command of a sovereign authority and sanction
becomes absolute necessity for enforcement of law.
 Punishment:

Classification of Law by Austin:

(Austin theory of Imperative Law)
Austin separated law as improperly so-called and law properly
so-called. He encourages positive law only because he is a
positivist.
He recognized that law can be set by both God (divine law) or by
men to men, where law set by God is regarded as ambiguous and
misleading according to him and on the other hand laws set by
men to men is of three types;

 Laws set by political superiors to their inferiors – law

properly so-called.
 Laws set by men who are not political superiors – positive
morality.

Features of Analytical school of Jurisprudence

 Concerned with strictly so called i.e. what law is, not what it
ought to be ?.
 Law is not based upon idea of good or bad, it is based upon
power of superior
 There is no moral law.
 Law and justice differs
 This school is reaction against natural law theories, which
are based upon rationalization or nature confined law or
God and gave importance to ethical and moral issues.

Salmond’s Contribution to the Analytical school of

jurisprudence

 According to Salmond, the law is “the body of principles

recognized and applied by the state in the administration of
justice”. It means the law is rules which are acted by the
courts of justice. The final and true test of the adequacy of
 law is defined by the enforceability of law in the courts of
justice.
 According to Salmond, Jurisprudence is “the science of first
principles of the civil law”.
 The civil law here is the law that is applied by the
administration in the court of justice and it is the first
principle and the final test of the adequacy of law.
 Salmond’s definition of law has brought a drastic change in
the thoughts of analytical positivists.
 Inspired by him many realist jurists have considered law as
it is and not law which ought to be.

Salmond’s Criticism

 Vinogradoff criticized Salmond’s definition of law, according

to his law is to be formulated precisely by applying it in a
court of justice.
 Critiques also said that the definition is itself defective
because on their thoughts law is logically subsequent to the
justice of administration.
 The definition of law is vitiated because when the rule has
existed for the purpose of applying it in the court of justice.
 The purpose of the law Is not only justice but it also must
be accepted universally.
 He has also narrowed the field of law according to the
critiques.

Jeremy Bentham

He defined law as:

Law is an assemblage of signs declarative of a volition conceived

or adopted by the sovereign in a state, concerning the conduct to
be observed in a certain case by a certain person or class of
persons, who in the case in question are or are supposed to be
subject to his power.

Bentham supported the economic principle of 'laissez faire' which

meant interference of the State in the economic activities of
individuals.

· Bentham propounded the principle of utilitarianism. According

to this theory, the right aim of legislation is the carrying out of
the principle utility. Bentham defined utility as the property or
tendency of a thing to prevent some evil or procure some good.
According to him, the consequences of good and evil are
respectively 'pleasure and pain'.

He gave solutions to problems involving the nature of positive

law.
Principle Of Utility
According to him the consequences of good and evil are
respectively ‘pleasure’ and ‘pain. In simple words, the basic thing
which come under principle of utility i.e. pleasure and pain.
Principle of utility recognizes the role of pleasure and pain as
human life.
Pleasure = ‘everything that is good’
Pain = ‘everything that is bad or evil’.
Therefore, keeping the consequences of good and bad in human
life the principle approves or dis-approves action on the basis of
pleasure and pain. He believed that happiness of social order is
to be understood in the objective sense and it broadly includes
satisfaction of certain needs, such as need to be fed, clothed,
housed etc. According to him, happiness changes its significance
in the same way as the meaning also undergoes changes with the
changes in societal norms.
He desired to ensure happiness of the community by attending
four major goal namely,
Hans Kelsen (1881 – 1973)
Kelsen has contributed the pure theory of law to the analytical
school of jurisprudence. He also accepted the concept of law as
normative in nature and not a natural science.
Hans Kelson was an Austrian jurist, legal philosopher, and
political Philosopher belonging to a legal positivism school of
thought. Roscoe Pound was appreciated as Kelson’s
“undoubtedly the leading jurist of time.”
His famous book is “The Pure Theory of Law”.
Pure Theory of Law or Vienna School
Kelsen defines law as
“the body of norms which stipulates sanction”.
Here, the norm is a pattern or model, the definition says that a
kind of directive by which a certain act is permitted or authorized
or commanded. His theory says to be pure because he eliminates
alien elements which make the structure of the legal system
improper. According to him, the law must be positive law.
According to Kelsen, Jurisprudence is “the study of a hierarchy of
norms, the validity of each norm depending on that of a superior
norm ‘Grund Norm’.
For example– Constitution is our Grundnorm, all the other laws
like IPC, CrPC, CPC, and other laws check their validity from the
Grundnorm which is Constitution. If in IPC any such law made
which is against the Grundnorm then they will become invalid.
His definition executes the relationship between the Grund norm
and all other norms. For him norm is a ‘rule of conduct’ and
grund norm is the superior norm. The grund norm delegates
authority to inferior norms which derives their validity from the
norms superior to themselves.
The validity of other inferior norms can be defined by testing
against grund norm.
Key Features of Kelsen’s Pure Theory

1. Law as Science: Kelsen tried to present a theory that could

be attempted to change Law in science, a theory that could
be understood through logic.
 2. As a positive law: In the first paragraph of the pure theory
of law, Kelsen introduces his theory as a theory of positive
theory. This principle of positive law is then presented by
Kelson as a hierarchy of laws that begins with one basic
norm, i.e. Grundnorm ‘, where all other norms are related to
each other either being inferior norms.
3. Law “As it is”: Kelsen emphasized that analysis should
focus on the law ‘as it is’ in fact laid down, not as ‘it ought
to be’.
4. Law and morality: Kelsen’s strict separation of law and
morality is an integral part of his pure theory of law.
5. The theory of law should be uniform: According to Kalsen,
the theory of law should be applied at all times and in all
places.
6. Static Aspect of Law: Kelsey distinguished the static
theory of law from the dynamic theory of law. The static
theory of law represented the law as a hierarchy of laws
where individual laws were related to each other either
being inferior, the one to other, or superior with respect to
each other.

Kelsen’s Criticism

 The concept of Grundnorm is vague and creates confusion.

 His theory of him did not give importance to his practicality
of it.
 He directly ignored morality and natural law.
 As he says his theory is pure and excludes improper
elements in it but the critiques say that it is not possible to
maintain purity.

Sociological school

Law is social scenery. This school argues that the law is a social
phenomenon because it has a major impact on society. This
school laid more emphasis on the legal perspective of every
problem and every change that take place in society.
Law is a social phenomenon and law has some direct or indirect
relation to society. Sociological School of Jurisprudence focuses
on balancing the welfare of state and individual was realized.
According to this school the socio-economic problem of the
present time cannot be solved by means of the existing laws.
This school is based on logic, not metaphysical entities or
divinities.

Rosco pound

Roscoe Pound concentrates more on functional aspect of law. So,

his approach may also be known as functional approach.
According to him 'The end of law should be to satisfy a maximum
of wants with a minimum of friction.' He demands for maximum
happiness with less disagreement.

He has given a theory of 'Social engineering' which means a

balance between the competing interests in society. Social means
group of individuals forming a society. Engineering means
applied science carried out by engineers to produce finished
products, based on continuous experimentation and experience
to get the finished product by means of an instrument or device.
He thinks that jurist should work with a plan and accordingly
various interests of society should be protected by law.

The interest has been classified into three categories:

Private Interests which are as follows:

Interests of personality Physical integrity, reputation, freedom of
violation and freedom of conscience. For example: law of Torts,
law of Contracts, Criminal law.
Interest of domestic relations Marriage, parents and children,
maintenance.
Interest of substance Inheritance, occupational freedom,
property.
Public Interests are:
Interest in the preservation of State, Administration of trusts,
charitable endowments, territorial waters, natural environment
etc.
Social Interests
Social interests are the claim or demands or desires thought of in
terms of social life and generalized as claims of social groups.

4) Realist School

Emotions have a large role in legal decisions. This school is

referred to as the Realist School since the law is seen to be a fact
in this school’s thinking. This school is concerned with the
authority judges’ judgments and their mindset. This school is
founded on the viewpoints of attorneys and judges, as well as the
application of their thought processes. When it comes to justice,
this school evaluates the viewpoints of both sides in a given
situation.

Realist school of jurisprudence are classified into two types:

 American Realist – Scholars not only learned from their

own experiences, but they also watched and absorbed
lessons from the judgments of their peers.
 Scandinavian Realists – Scholars relied only on their own
personal experiences in this area.

Theories of Justice

1) John Rawls's Theory of Justice

John Rawls was an American philosopher who argued that
justice is fundamentally linked to the idea of fairness.
He put forward his argument in a paper titled "Justice as
Fairness," which he spent years perfecting.
His most well-known work is Justice as Fairness, which outlines
Rawls' vision of a just, liberal society.
In John Rawls Book of 1971- A Theory of Justice, Rawls first
systematically outlined justice as fairness.
Rawls restated the theory in Political Liberalism (1993), The Law
of Peoples (1999), and Justice as Fairness: A Restatement
throughout his life (2001).
Rawls believed that a fair and unbiased agreement between
people could only be reached if they didn't know their social
status. This is called the "veil of ignorance."
They would be compelled to use only human reason to decide
what social justice meant for their society.
Rawls proposed two principles of justice:
1) Everyone should have the same basic rights and
freedoms.
2) Social and economic inequalities should be arranged in
a way that benefits everyone, and they should be
connected to job opportunities and positions available.
A person's social class, personal motivation, inherited traits, and
luck can contribute to inequality.
Nevertheless, Rawls insisted that a just society must find a way
to make these disparities work in everyone's favour.
Rawls challenged the utilitarian conception of justice by arguing
that justice was more than efficiency.
According to his theory of justice as fairness, a society of free
people who share the same fundamental rights and work together
to maintain an egalitarian economic system
 2) What is distributive justice
Distributive justice is concerned with the measurements that
should be used to allocate the resources of the society. It also
decides fair distribution of the burdens and benefits of social
cooperation among persons with various needs and claims.

According to Aristotle, distributive justice implies that the state

should divide or distribute goods and wealth among citizens
according to merit.

Distributive justice includes issues such as affirmative actions

such as recruitments and promotion in government actions,
admission to public educational institutions, seats in legislature,
welfare, free education and other goods and opportunities and
they are distributed amongst the members of the society.

The goods that one might possess include the following:

 Economic goods such as incomes and property.

 Opportunities for development such as healthcare,
sanitation, education, clean water for drinking.
 Recognitions in the society such as honour, job promotions
and social status.

The state should distribute goods, resources and wealth to the

people depending on various aspects and distributive norms.

In the presence of enough goods, opportunities and status for

everyone in the society, issues of distributive justice are less
likely to arise.

3) Corrective justice is the theoretical construct that

highlights the function of correlativity as the organizing
concept implicit inside the dating between plaintiff and
defendant.
The regulative function of corrective justice is likewise reflected
within the evaluation with distributive justice. Corrective and
distributive justice express categorically different structures of
justification. Corrective justice links the doer and sufferer of an
injustice in terms of their correlative positions. Distributive justice,
on the opposite side, offers with the sharing of an advantage or
burden; it involves comparing the potential party to the
distribution in phrases of a distributive criterion. Instead of linking
one faction to another as doer and sufferer, distributive justice
connects all parties via the benefit or burden they all share. The
categorical difference between correlativity and comparison is
made clean in the distinction between the numbers of parties that
everyone admits. Corrective justice connects two events and no
extra due to the fact a relationship of correlativity is necessarily
bipolar.

4) Natural Justice and Its Principles

The concept of natural justice though not provided in Indian
Constitution but it is considered as necessary element for the
administration of justice. Natural justice is a concept of common
law which has its origin in ‘Jus Natural’ which means a law of
nature.
In its layman language natural justice means natural sense of
what is right and wrong and in its technical sense it is
synonymous with fairness. Natural justice has a very wide
application in administrative discretion. It aims to prevent
arbitrariness and injustice towards the citizens with an act of
administrative authorities.

In its initial, the concept of natural justice was confined to the

Judicial proceeding only but with the advent of welfare state the
powers of administrative authorities have considerably increased
as a result it becomes impossible for law to determine the fair
procedure to be followed by each authority while adjudicating any
disputes or any quasi-judicial proceedings.
Therefore, courts have made a remedy by establishing a norm to
be follow by administrative authorities while exercising theirs
powers and performing their functions.
Administrative authorities being a law executer must provide
benefits to the people but such objective cannot be fulfill in
absence of effective control on the powers given to them.

Court in order to prevent abuse of power and to check on their

limits has evolved the principles of natural justice as important
safeguards against injustice. The object of natural justice is to
secure justice to the citizens and prevent contempt of justice.
Decisions which violate the natural justice shall stand null and
void.

Principles of Natural Justice

According to traditional English law natural justice classified into

two principles i.e
Nemo judex in causa sua (rule against bias)
Audi alteram partem (rule of fair hearing)

Rule Against Bias or Nemo Judex In Causa Sua

“No one should be a judge in his own case” since it directs to the
rule of biases. Bias signifies an act that leads to an unfair job,
whether in an unconscious or conscious phase about a specific
case or the party. Hence, this rule reinforces impartiality in a
judge impartially and ensures that the judgement delivered is
solely based on the evidence available for a case.
Nemo Judex In Causa Sua signifies rule against bias. This is the
first principle of natural justice that states no individual should
be a judge in his own cause, or a deciding power must be neutral
and impartial when examining any case.
Type of Bias
Personal Bias
Personal bias originates from a relation between a deciding
authority and the party. This can place the deciding
administration in a questionable situation to undertake an unfair
act and deliver judgement in his person’s favour.
Pecuniary Bias
In case there is any kind of financial interest on the judicial
body’s part, notwithstanding the amount, it will lead to biases for
the administrative authority.
Subject Matter Bias
This bias is applicable when the deciding administration falls
under the subject matter of a specific case, directly or indirectly.

Audi Alteram Partem (Rule of Fair Hearing)

It comprises 3 Latin words, which simply means that a person
can receive punishment or conviction without having a civil and
fair chance of being heard.
In simple words, this rule states that both parties must have the
chance to represent their viewpoints, and authorities should
conduct a fair trial accordingly. This is a significant rule of
natural justice as it prevents authorities from subjecting any
individual to punishment without a sound and valid ground.
A person should get prior notice, so he knows about all the
charges against him in advance, and prepare accordingly. This is
also called a rule of fair hearing. The constituents of fair hearing
do not remain fixed. It varies across authorities and cases.
The principle of natural justice has been followed and adopted to
save public rights against random arbitrary decisions by the
administrative authority. Therefore, an individual can easily see
that the rule of natural justice includes the concept of fairness
and honesty: they stay alive and help to safeguard fair dealing.
Administration of Civil and Criminal Justice

Administration means management and justice means to right

and equitable implication. By the administration of justice is
meant the maintenance of right with in a political community by
means of the physical force of the state. It involves

 The physical force of the State,

 Politically organized society and
 Maintenance of rights as the object.

For sound administration of justice, physical force of the state is

prime requirement. There are two essential functions of every
State:

1. War,
2. Administration of Justice

According to Salmond, a state with reference to its territory as a

society of men established for the maintenance of order and
justice within a determined territory by way of force. State
maintain law and order and establish peace and social security.
If state failed to maintain the law and order it can’t be called
state. The main function of the administration of justice is the
protection of individuals’ rights, enforcement of laws and
punishment of criminals.
Definitions of Administration of Justice:

 According to Lord Bryce;

“There isn’t any better test of the excellence of a government than

the efficiency of its judicial system”.

 According to George Washington;

“Administration of justice is the firmest pillar of government. Law

exists to bind together the community. It is sovereign and cannot
be violated with impunity”.

 According to Salmond;
“Law is the body of principles recognized and applied by the State
in the administration of justice”.
Origin and Growth of Administration of Justice –
The origin and growth of administration of Justice is identical
with the origin and growth of man. In modern civilized societies,
it has evolved through stages.

 First Stage – In early stage when society was primitive and

private vengeance and self-help were the only remedies
available to the wronged person against the wrongdoer. He
could get his wrong addressed with the help of his friends or
relatives.
 Second Stage – The second stage of development of the
society was characterized by the state coming into existence
in its rudimentary form when its functions where only
persuasive in nature. It did not have enforcing power by
which it could punish the wrongdoer.
 Third Stage – In the third Stage of development of society,
wrongs could be redressed by payment of compensation by
the wrongdoer to the wronged(victim) who was affected by
the wrongful act.

Thus up to this time, the justice remained private in nature

without the compulsive force of the State
Advantages of Administration of Justice
Advantages of Administration of Justice are as follows –

 Uniformity and certainty – Legal Justice ensures

uniformity and certainty. Everybody knows what the law is
and there is no scope for arbitrary action. Even Judges have
to give decisions according to the declared law of the
Country. As the law is certain, citizens can shape their
conduct accordingly.
 Impartiality – Another Advantage of Administration of
Justice, there is impartiality in the administration of justice.
Judges are required to give their decisions according to the
pre-determined legal principles and the cannot go beyond
them.
Disadvantages of Administration of Justice
Despite the aforesaid advantages there are certain disadvantages
of Legal Justice which are as follows –

 Rigidity – One Disadvantage of Legal Justice is that it is

Rigid. Law has already been laid down in precedents. It is
not always possible to adjust it to the changing needs of
society. Society may change more rapidly than legal justice
and may result in hardship and injustice in certain cases.
Judges act upon the principle that “hard cases should not
make bad law”.
 Technicalities – Another disadvantage of legal justice is its
technicalities (formalism). Judges attach more importance
to legal technicalities than they deserve. They give
importance to form than to substance.
 Complexity – Modern society is becoming more and more
complicated and if made from time to time to codify or
simplify the legal system but very soon law becomes
complicated

Kinds of Justice
The concept of justice and its administration can be of the
following types:

1. Public justice and Private justice

 2. Civil justice and Criminal justice

In terms of the subject matters of justice, we can categorize it as

civil and criminal.

Theories of Punishment

Theories and Kinds of Punishment

Retributive Theory
Retribution is the most ancient justification for punishment. This
theory insists that a person deserves punishment as he has done a
wrongful deed. Also, this theory signifies that no person shall be
arrested unless that person has broken the law. Here are the
conditions where a person is considered as an offender are:

 The penalty given will be equivalent to the grievance caused by

the person.
 Performed a crime of certain culpability.
 That similar persons have been imposed for similar offenses.
 That the action performed was by him and he was only
responsible for it. Also, he had full knowledge of the penalty
system and possible consequences.
Preventive Theory
This theory has used a restraint that an offender if repeats the
criminal act is culpable for death, exile or imprisonment. The
theory gets its importance from the notion that society must be
protected from criminals. Thus, the punishment here is for
solidarity and defense.

The modern criminologists saw the preventive theory from a

different view. They first realized that the social and economic
forces should be removed from society. Also, one must pay
attention to individuals who show anti-social behavior. This is
because of psychological and biological handicaps.

Deterrent Theory
In specific deterrence, punishment is designed such that it can
educate the criminals. Thus, this can reform the criminals that are
subjected to this theory. Also, it is maintained that the
punishment reforms the criminals. This is done by creating a fear
that the punishment will be repeated.

While a general deterrence is designed to avoid future crime. So,

this is done by making an example of each defendant. Thus, it
frightens the citizens to not do what the defendant did.
Reformative Theory
Deterrence and retributive are examples of classical and non-
classical philosophies. The reformative theory was born out of the
positive theory that the focal point of crime is positive thinking.
Thus, according to this theory, the objective of punishment needs
to be reformation by the offender.

So, this is not a punishment virtually but rather a rehabilitative

process. Thus, this process helps in making a criminal a good
citizen as much as possible. Furthermore, it makes the citizen a
meaningful citizen and an upright straight man.

Punishments Under Section 53, IPC

The punishments to which offenders are liable under the

provisions of this Code are:

1. Death.
2. Imprisonment for life.
3. Imprisonment, which is of two descriptions, namely:
(I) Rigorous, that is, with hard labour;
(II) Simple.
4. Forfeiture of property.
5. Fine.

As per section 53 of the Indian Penal Code, there are five types of
punishments that a court may provide to a person convicted of a
crime. These are death, imprisonment for life, simple and
rigorous imprisonment, forfeiture of property and fine.
 1. Death Punishment

Punishment of death is also known as capital punishment.

Under this punishment, a person is hanged till he dies.

This punishment is sanctioned by the government and ordered

by the court. It is provided only in the rarest of rare cases. This
punishment is provided only for serious offences. A death
sentence is the highest punishment awarded under IPC, and it
has always been a controversial subject. Arguments are made in
favour and against the retention of the capital sentence as a form
of punishment.

It was argued in Jagmohan Singh vs the State of Uttar

Pradesh that the death penalty is unconstitutional and hence
invalid as a punishment. However, the Supreme Court held the
death penalty as valid. It held that deprivation of life is
constitutionally lawful if done according to the procedure set by
law.

The Supreme Court in Bachan Singh vs the State of

Punjab upheld the validity of the death penalty, but the court
restricted the provision of the death penalty to the rarest of rare
cases only. If the case falls under this theory, then capital
punishment may be given.

The court did not elaborate as to what falls under the category.
Still, the court has declared from time to time that the cases like
honour killings, assassination, genocide, brutal murder, etc., fall
under the definition of ‘rarest of the rare case’.

As per section 54 of the Indian Penal Code, the appropriate

government can commute the sentence of death for any other
punishment provided by this Code.

2. Imprisonment for Life

The words “imprisonment for life” was substituted for

“transportation for life” by Act XXVI of 1955.

In this type of punishment, an accused convicted of a crime has

to remain in prison until he is alive or until pardoned or
otherwise commuted to a fixed period.

3. Imprisonment

Imprisonment means taking away a person’s freedom and putting

him in prison. According to section 53 of the IPC, there are two
kinds of imprisonment:

1. Simple Imprisonment: It is the type of imprisonment where an

accused convicted of a crime is kept in prison without any hard
labour. They are required to do only light duties. The
punishment of simple imprisonment is awarded only for lighter
offences such as defamation.
2. Rigorous Imprisonment: It is the type of imprisonment under
which a prisoner or an accused convicted for a crime is kept in
prison, and they have to do hard labour such as agriculture,
carpentry, drawing water, etc. Rigorous imprisonment is
obligatory for the offences given under the following two
sections

4. Forfeiture of Property

Forfeiture implies the loss of property of the accused. Under this

punishment, the State seizes the property of a criminal. It is the
result of the wrong or default caused by the person. The property
forfeited may be movable or immovable.

5. Fine Under IPC

The court may impose the punishment of a fine as sole

imprisonment or as an alternative for imprisonment, or in
addition to imprisonment. It depends upon the court to decide
whether either imprisonment or fine or both are to be awarded in
a particular case. According to section 64 of IPC, the court may
order imprisonment if a person fails to pay the fine.

Kinds of Punishments under Bharatiya Nyaya

Sanhita, 2023

There were 5 types of punishments under the Indian Penal Code,

1860. The same have been extended to 6 kinds of punishments

under BNS. Death Penalty or Capital Punishment, life

imprisonment, imprisonment for a specific term, forfeiture of

property and fine were the punishments under IPC. Community

service is the newly included type to punish people convicted of a

particular offence, as specifically required under the Sanhita.

Section 4 of BNS

Since there is an overturn of the provisions under the Bharatiya

Nyaya Sanhita, 2023 as compared to the Indian Penal Code,

1860, punishments are provided under Section 4 of BNS. Given

below are the kinds of punishments under BNS and their simple

explanations to help understand what they mean and include.

1. Death

Death penalty, also known as capital punishment, means

punishing a person with a death sentence for commiting a

specific offence. It is also termed as the State-sanctioned killing

of a person. Some of the gravest and rarest of rare offences under

the Bharatiya Nyaya Sanhita are punishable with death.

Examples include murder, terrorist act, dacoity, etc. While

several organisations advocate against the death penalty as a

punishment under penal laws, the Government of India did not

drop the same while enacting new laws and repealing the Indian

Penal Code, 1860. It may further be noted that while death

penalty may be pronounced by Courts in rarest of rare cases, its

execution is not as frequent in India.

2. Life Imprisonment

Following the death penalty, life imprisonment is the second

gravest types of punishments under BNS. There is a confusion

that life imprisonment literally means staying in the prison till

his/her natural death. However, things are not as black-n-white

here. Section 6 of BNS states that “In calculating fractions of

terms of punishment, imprisonment for life shall be reckoned as

equivalent to imprisonment for twenty years unless otherwise

provided.” This means that the ‘life’ here usually means 20 years.

However, there have been some rarest of the rare cases where

Courts pronounced life imprisonment for the convict and

specifically clarified that the person shall stay in prison until

he/she dies. There have been some other cases where the death

penalty has been commuted by the Court or Government, to life

imprisonment where the convict is supposed to stay in jail till

life.

3. Imprisonment

The kinds of punishments under BNS state imprisonment as the

most common one. Here, imprisonment is ordered for a specific

term whereby usually, a range of punishment is given. For

example, the offence of hiring, employing or engaging a child to

commit an offence (Section 95 of BNS) is punishable with

“imprisonment of either description which shall not be less than

three years but which may extend to ten years”. There are two

kinds of imprisonment as a punishment:

 Rigorous Imprisonment

It means imprisonment with hard labour. In other words, the

convict shall remain in the jail for the given term and also do

tasks like mining, construction, manufacturing furniture,

clothes, etc.

 Simple Imprisonment
As the term suggests, simple imprisonment only involves staying

in jail for the term for which the person is sentenced.

It may be noted that the Bharatiya Nyaya Sanhita provides that

whether a person is sentenced to rigorous imprisonment or

simple imprisonment shall be the discretion of the Court.

4. Forfeiture of Property

Forfeiture in general means losing or being deprived of something

as a penalty for doing something wrong. Usually, it is the

property used in committing the particular offence. Hence, one of

the kinds of punishments under BNS includes forfeiture of

property. An example is Section 154 wherein committing

depredation on foreign State territories at peace with the Indian

Government is punished with forfeiture of property used in such

act.

5. Fine

Being the most frequent among the kinds of punishments under

BNS, fine is imposed with imprisonment provided under the legal

provision. There are some offences for which the amount of fine is
prescribed. In other cases wherein the offence is punishable “with

fine”, it is the discretion of the Court. In fact, the judgments of

sentences passed by Courts also specify the term of

imprisonment to be served by the convict in case of failure to pay

the fine.

6. Community Service

While the concept was nowhere provided under the Indian Penal

Code, 1860, the Courts were pioneers of imposing community

service as a punishment in India. Later, when the Government

came up with the new criminal laws, community services were

included as one of the kinds of punishments under BNS.

Examples of community service could be planting a certain no. of

trees, maintaining a library, cleaning local parks, etc. The type of

community service as a punishment to be imposed in a particular

offence is the discretion of the Court, since the same is not

specified under the Bharatiya Nyaya Sanhita, 2023.

Elements of law

What are legal rights?

The term right is defined as any action of a person that a law

permits. Legal rights are the rights that are given to the citizens of
a country by the government to enjoy certain freedoms. These
rights affect every citizen. There is no remedy for the infringement
of these except for the law itself. Legal rights can be differentiated
from moral rights or natural rights or even fundamental rights.
E.g. Right to vote, right to sue.

Essentials of a legal right:

 A person must be an owner of a right

 A legal right accurse against another person or persons under
a corresponding duty to respect that right.
 Content or substance
 The object of the right
 Title of the right

Nature and Characteristic of Legal Rights:

1. Legal rights exist only in society– these rights are the

consequence of humans being a social animal.

2. Spurs the development of the nation– these rights are the pillars
to building a strong and constantly developing nation.

3. Rights are recognized by the all people in a society.

4. These are rational and moral claims– These are not illogical and
do not depend on hit and trial methods.

5. Since rights are present in a society, these cannot be exercised

against the society or against social good of the society.

6. Rights are equally available to all the people without any kind of
discrimination.

7. These rights are dynamic. They can be changed according to the

situations and conditions prevailing in the society.
8. Rights are not absolute. They can never be. These have certain
limitations attached to it that are deemed essential for maintaining
public health, security, order and morality.

9. Rights are correlated with duties. They have an intimate

relationship between them, they usually go hand in hand.

10. These are protected and enforced by the laws of the state. It is
the inherent duty of the government to take various measure to
protect the rights of the people.

Kinds of Legal rights

Legal rights are available to citizens without any form of

discrimination of gender, caste or creed. The 16 types of legal
rights listed as follows:

1. Perfect and imperfect rights- Perfect rights are the perfect

duties that are recognized and enforced by the government while
the imperfect rights are not of the perfect nature.

2. Positive and negative rights– Positive rights correspond to

positive duties. Negative rights correspond to negative duties
which are majorly against all the world.

3. Real and personal rights– Real rights are imposed on persons

in general. Personal rights are the rights which are imposed on
determinate individuals.

4. Rights in rem and rights in personam– Rights in rem is a right

against or in respect of a thing while rights in personam are the
rights against or in respect of a person.

5. Proprietary and personal rights– Proprietary rights have some

monetary value in it. The personal rights are not valuable in
monetary terms.

6. Inheritable and uninheritable rights– A right is called

inheritable if it survives with a person and a right is called
uninheritable if it dies with a person.

7. Principal and accessory rights– Principal rights are the main

rights vested under the Persona; these are important. Accessory
rights are the consequential rights; these are not that necessary.
8. Rights in Re Propria and Rights in Re Aliena – Right in Re
Propria is a right in respect to one’s property. However, Right in Re
Aliena is a right in respect to another person’s property.

9. Legal and Equitable rights– Both rights are recognized by all

the courts but they differ in their practicality.

10. Primary and secondary rights– Primary rights are the

independent rights; these are ipso facto. Secondary rights are the
supporting rights to primary rights.

11. Public and private rights– Public rights are vested in the
hands of the state. Whereas private rights are exercised by
individuals for their own benefits.

12. Vested and contingent rights– Contingent rights depend on

the happening or non happening of certain events. Vested rights
are already vested in persons.

13. Servient and dominant rights– Servient rights are subjected

to encumbrance while the dominant rights are enjoyed by the
dominant owner.

14. Municipal and international rights– Municipal rights are

conferred by the law of a certain country. International rights are
conferred by the International laws.

15. Rights at rest and rights in motion– When a right is in

reference with an orbit and its infringement it is called right at rest.
Rights in motion are the causes by which they are connected or
disconnect with persons.

16. Fus ad rem– it is a right to a right. It is an ordinary and

fundamental right.
Meaning of Duties

As Birds are made to Fly and Rivers to Run, So the Soul to Follow
Duty. – Ramayana

Duty, the word finds its derivation from the word “due” which
means something which owed. So, Duty can be described as an
obligation to perform an act or a task. This act or task can be
ethical, moral, cultural etc. in nature or either a compulsion by the
state, omission of which will result in punishment by law. Cicero,
an early Roman philosopher who discusses duty in his work “On
Duty”, suggests that duties can come from four different sources:-
[1]

1. as a result of being a human

2. as a result of one’s place in life (one’s family, one’s country,
one’s job)
3. as a result of one’s character
4. as a result of one’s own moral expectations for oneself.
In the legal scenario, duty means a legal obligation to do or not to
do something. [2]

Characteristics of Duties

A duty is a responsibility to be fulfilled. It is the guideline, a

prescription to be followed which details the conduct which must
be followed when fulfilling duties which are moral or social in
nature. Professor Fuller states the main attributes of duty as :- [8]

1. It should be general, though limited exceptions are

permissible.
2. It should be promulgated.
3. It should be prospective and intelligible.
4. It must be consistent.
5. It should be capable of fulfillment and congent with inner
morality.
Other characteristics can be summed as –

1. Basic ideology is that it is an obligation for something in

return.
2. It is a concept that is prescribed -to be followed but is not
mandatory in nature.
 3. It is a commitment which is moral towards someone and
must be performed for that individual.
4. There is restriction of free will but by the operation of law.
5. Negative Duties which arise from Natural Law are not
exempted.
6. Affirmative Duties which arise from the affirmative precepts
of Natural Law admit exemptions only when the act is
rendered impossible to be performed under certain
circumstances or if it is causing excessive hardship on the
person.
7. Hardships which are a part of the process of the obligation
and are a part of normalcy in accordance with the nature of
the duty will not result in any exemption
8. Only a strong reason can stop one from the compliance of a
duty. For instance, a student must attend classes unless
sickness prevents him from doing so.

Classification of Duties

A. LEGAL AND MORAL DUTIES :- A Legal duty is adversary of a

legal wrong and it is recognized by the law for administration of
justice. Similarly, Moral duty is an opposite of moral wrong, but is
not recognized by law but it is followed out of human conscience
and social perception. So, a duty can be legal but not moral and
vice versa. So, by the operation of law it is mandatory to perform a
legal duty but not a moral duty. For example – not selling
adulterated milk is a legal duty and not wasting paper is a moral
duty. There is punishment for former and not for latter.

B. POSITIVE AND NEGATIVE DUTIES :- When a person is

enforced to perform a duty, the duty is called positive duty.
Whereas, when the law asks the person from refraining in involving
or undertaking a particular act, such duty is called negative duty.
For example – to pay debt is a positive duty whereas, not to
trespass on third person’s land is a negative duty.

C. PRIMARY AND SECONDARY DUTIES :– Primary duty is one

which doesn’t need to be stated, it exists on its own. Whereas,
Secondary duty is one which exists only for giving the way to other
duties thus, having no independent existence. For example – Not
to cause injury to another person is the primary duty, but to pay
damages as a result of injury caused is the secondary duty.
D. ABSOLUTE AND RELATIVE DUTIES :- Absolute duties are the
one which are not followed by a right which means a right is mot
corollary of a duty in the case of an absolute duties, whereas
relative duties are the duties which come with a bond and are
followed by right. Thus, a relative duty cannot exist without a right.

Austin stated 4 kinds of absolute duties ;-

1. Duties to those who are not human beings, such as duty

towards god.
2. Duties towards indeterminate persons or public at large,
such as duty not to commit nuisance.
3. Self-regarding Duties, such as duty not to commit suicide or
duty not to become intoxicated.
4. Duty towards State or sovereign.
Salmond did not support this concept of absolute and relative
duties. He believed there is no duty without a right.

LEGAL PERSONALITY/ PERSON

Meaning of Person
The term Person is derived from the Latin word ‘Persona’ it
means those who are recognised by law as being capable of
having legal rights and duties.
Definition :

1. Salmond – “ A person is any being whom the law regards as

capable of rights and bound by legal duties.
1. Savigny defines the term person as the subject or
bearer of a right.
2. According to Gray A person is an entity to which
rights and duties may be attributed.
3. According to Austin the term ‘person’ includes
physical or natural person including every being which
can be deemed human.
According to Section 11 of the Indian Penal code the word
person includes any company or association, or body of Persons,
whether Incorporated or not.
Kinds of Persons :
There are two kinds of persons are as follows

 Natural persons
 Legal persons ( legal persons are also known as juristic,
fictitious or artificial persons )

1. Natural Person : A natural person is a human being

possessing natural personality.
2. According to Holland, a natural person is a human being as
is regarded by the law as capable of rights and duties.
3. Requisite of normal human being is that he must be born
alive moreover , he must possess essentially human
characteristics.
4. Generally a person/human being who has a capacity to sue
and be sued is person.

2)Legal persons / Artificial persons : A legal person

has a real existence but it’s personality is fictitious. A
fictitious thing is that which does not exist in fact but
which is deemed to exist in the eye of law.

Example : Company or corporation, idol etc.

3) Legal status of unborn persons

A child who is still in the womb of the mother is consider not

technically legal person but by legal friction the foetus gets some
legal rights and the society has certain duty to perform towards
such unborn. There are certain laws in India which advocate an
unborn child as a person and grants him certain rights

4) Legal status of Dead Person:

Dead person – Someone who is no longer alive is called dead.

Dead persons have no legal personality and hence, cannot sue
and be sued. Dead men are no longer persons in the eye of law.
Legal personality of a person dies with his person. They do not
remain the owners of their property until their successors enter
upon their inheritance. When a person dies leaving Will, his
property is distributed according to the Will. Law recognises and
takes account after the death of the person of his desires and
interest when alive. There are three things in respect of which the
anxieties of living men extend even after their death. Those are
his body, his reputation and his property.

1. His Body:

A living person is interested in the treatment to be given to his

own body. A person is interested in a decent funeral and good
burial. Criminal law secures a decent burial for all dead persons
and the violation of a grave is a criminal offence. It is because to
the respect the feelings of the relatives of a dead person, not in
protection of dead person’s right.

 His reputation:

Everyone is interested in maintaining reputation even after

death. The reputation of a dead person receives some degree of
protection from the criminal law. Defamation suit can be filed for
loss of reputation of a dead person. If the publication is an attack
on the internet of living persons, as a matter of fact, this right is
in reality not that of the dead person but of his living
descendants.

 His Property/ Estate:

A man is dead but his hand may continue to regulate and

determine the enjoyment of the property he owned while he was
alive. He can dispose of his property by WILL. When a person
dies intestate ( dies living will) the property is distributed
according to the WILL.
CORPORATE PERSONALITY
Legal personality is an artificial creation of law. Entities under
the law are capable of being parties to a legal relationship. A
natural person is a human being and legal persons are artificial
persons, such as a corporation. Law creates such corporation
and gives certain legal rights and duties of a human being.
A legal personality Is what provides a person or organization
rights and responsibilities by the law. Usually, we automatically
assume that Humans have a legal personality. This is so as such
legal systems are built for the use of human beings. These days,
the concept of legal personality is frequently a part of discussions
about the rights or legal responsibility of the entities such as
corporations that cannot be defined by a single person.
Theories Related To Corporate Personality

1. Fiction Theory

This theory says that the personality of a corporation is different

from that of its members. Thus any change in the membership
will not affect the existence of the corporation.

 Concession Theory

It is concerned with the Sovereignty of a State. It pre-supposes

that the corporation as a legal person has great importance
because it is recognized by the State or the law. According to it, a
juristic person is merely a concession or creation of the state.

1. Group Personality Theory

This theory believes that every collective group has a real mind, a
real will and a real power of action. So, a corporation has a real
existence, irrespective of the fact whether it is recognized by the
State or not.
  The Bracket Theory or the Symbolist Theory

It states that the conception of corporate personality is important

and is an economic device by which we can simplify the task of
coordinating legal relations. Thus, it emphasizes that the law
should look behind the entity to discover the real state of affairs.

 Purpose Theory or the theory of Zweck Vermogen

It declares that only human beings can be a person and have

rights. It also states that a juristic person is no person at all but
merely a subject-less property meant for a particular purpose.
There is ownership but no owner. Thus a juristic person is not
constructed by a group of people but based on some object and
purpose. Only living things can be the subject-matter of rights
and duties.

 Kelsen’s Theory of Legal Personality

According to it, there is no difference between the legal

personality of a company and that of an individual. In the legal
sense personality is only a technical personification of the norms
with the assigned rights and duties.

PROPERTY

Property has a very broad meaning in its real sense. It is not only
just restricted to financial wealth and other tangible (physical)
things of value, but it even includes intangibles (non-physical)
such as intellectual property rights, stocks & so. Both these
tangibles and intangibles can be anything which serves as a
source of income or wealth. If an individual owns a property, then
the most common legal property rights are the right of
possession, control, the right of exclusion, derive income, and
disposition. So, property usually refers to anything a person or a
business has a legal title over. On having a legal title, an owner
can enforce rights over it. This article explores property, its
meaning, examples and types. To begin with, firstly, remember
these major types of property:

 Movable property and Immovable property.

  Tangible property and Intangible property.
 Private property and Public property.
 Personal property and Real property.
 Corporeal property Incorporeal property.

Let’s discuss these kinds one by one in this article.

Kinds of Property

There are various types of properties under the law which are
categorised as:

1. Movable Property
Movable property can be moved from one place to another
without causing any damage. These are the legislations which
define movable property.

 Section 2(9) of the Registration Act, 1908- “Movable

property” includes standing timber, growing crops and
grass, fruit upon and juice in trees, and property of every
other description, except immovable property."
 Section 22 of India Penal Code,1860- “Movable property” are
intended to include corporeal property of every description,
except land and things attached to the earth or permanently
fastened to anything which is attached to the earth.”
 Section 3(36) of the General Clause Act,1897- “Movable
property” shall mean the property of every description,
except immovable property.”

2. Immovable Property
Immovable property is one that cannot be moved from one place
to another place. This is the property which is attached to the
earth or ground.

 Section 2(6) of the Registration act, 1908 states that an

“Immovable property means and includes land, buildings,
hereditary allowances, rights to ways, lights, ferries,
fisheries, or any other benefit to arise out of the land, and
things attached to the earth or permanently fastened to
anything which is attached to the earth, but not standing
timber, growing crops nor grass.”
  This property of a value of more than Rs. 100/- is needed to
be registered for which a registration fee and stamp duty are
to be paid.
 This property can be considered an ancestral joint property.

3. Tangible Property
Tangible property has a physical existence and can be touched.
This type of property can be moved from one place to other,
without causing any damage, from this, we can say that this
property is movable in nature.

Examples: cars or other vehicles, books, timber, electronic

devices, furniture, etc.

4. Intangible Property
Intangible property does not have any physical existence. These
are properties with current or potential value, but no intrinsic
value of their own & cannot be touched or felt but holds value.

Examples include intellectual property like copyright, patent or

GI, stock and bond certificates. Franchises, securities, software&
many more.

5. Public Property
Public property, as we can easily predict, means the property
owned by the State for the Indian citizens. It belongs to the
public with no claim from an individual. The government or any
assigned community generally manages these properties for
public utility.

A few common examples can be Government hospitals, parks,

public toilets, etc.

6. Private Property
As the name suggests, private property permits a non-
government body to own the property. It is property owned by a
juristic person for their personal use or benefit which can be of
any nature tangible or intangible, movable or immovable.

Common Examples include apartments, securities, trademarks,

private wells, etc.
7. Personal Property
The personal property acts like an umbrella which includes all
types of property. Individuals own this kind of property, be it
either tangible or intangible.

8. Corporeal Property
Corporeal property is any tangible property that can be touched
and felt.This is a tangible property but it is mainly the right of
ownership in material things of such property. All kinds of
tangible property can be considered corporeal property. it can be
divided into two categories: movable and immovable property and
personal and real property as it is ownership rights.

9. Incorporeal Property
Incorporeal property means all kinds of intangible property. This
type of property is also called intellectual property. It is an
incorporeal right, meaning having legal rights over things that
cannot be touched or felt.

OWNERSHIP

Definition

Ownership has been defined by many jurists, some opine it is the

relation between a person and a right vested in him and some
opine that it is the relation between a person and the thing that is
the object of the ownership.

Nature and Incidents of Ownership

On analyzing the concept of ownership one can find certain

attributes which reveal the nature or characteristics of ownership
such as usage, enjoyment, disposition etc. Nature of ownership is
as follows: –

1. It is indefinite in point of user i.e., the user may use the

thing owned in any way he so desires and is in no obligation
to not to use it. The user is at liberty to use it.
 2. It is unrestricted at point of disposition. The owner may
transfer or dispose of the property by conveyance either
during his lifetime or even after his demise by way of will.
3. The owner has the right to possess the thing owned
although if he actually possesses it or not is immaterial,
only the right o possess is of material in nature.
4. The owner has the right to exhaust the thing owned while
using it if the nature of the thing is so.
5. It is residuary in nature. Even if some rights to a certain
property may be given to someone else in way of lease or
rent, still the owner remains to be the owner due to the
residuary characteristics to it.
6. The owner has the right to alienate the property as well as
the right to destroy it.

Incidents of ownership

1. Right to possess – ownership entails the right to possess the

thing owned even if there is no actual possession of it, only
the right is of the essence.
2. Right to use – ownership implies that the owner can use or
enjoy the thing owned in any manner he thinks fit without
injuring others and within the limits of the law.
3. Right to manage – ownership contains within it the right to
manage the property. It means that only the owner can
decide what to do with it, how to do and by whom it is to be
done, to transfer or to alienate or to destroy.
4. Right to income – ownership also entails the income
generated out of it is owned by the owner. All benefits
attached to the thing owned is the right of owner.

Modes of Acquisition of Ownership

There are two modes of acquisition of ownership and they are

original and derivative. Original mode when things which had not
been owned before and can be acquired by possession. The things
owned before ownership over that thing is by derivative mode.

Original mode is of three types absolute, extinctive and accession.

Absolute in case where it previously belonged to no one. It can be
acquired by either specification or occupation. In occupation an
ownerless thing is owned and in this the physical control is
essential. For example, birds, fish etc. In specification the material
belonging to other when the shape given by another. For example,
clay collected from someone’s land is made into a sculpture by
another. Extinctive when the ownership of previous person is done
with by reason of adverse possession by the acquirer. Accessary
when acquired as an accession.

Kinds of Ownership

Corporeal and Incorporeal Ownership –

Corporeal ownership is the ownership of material object. It is the
ownership of tangible things which can be perceived by the senses.
For example, ownership of house, factory, machines, etc.

Incorporeal ownership is the ownership of a right. It is the

ownership of intangible things which cannot be perceived by the
senses. It also includes intellectual property and encumbrances.
For example, ownership of shares, trademark, copyright, etc.

Nature and Incidents of Ownership

On analyzing the concept of ownership one can find certain

attributes which reveal the nature or characteristics of ownership
such as usage, enjoyment, disposition etc. Nature of ownership is
as follows: –

1. It is indefinite in point of user i.e., the user may use the

thing owned in any way he so desires and is in no obligation
to not to use it. The user is at liberty to use it.
2. It is unrestricted at point of disposition. The owner may
transfer or dispose of the property by conveyance either
during his lifetime or even after his demise by way of will.
3. The owner has the right to possess the thing owned
although if he actually possesses it or not is immaterial,
only the right o possess is of material in nature.
4. The owner has the right to exhaust the thing owned while
using it if the nature of the thing is so.
5. It is residuary in nature. Even if some rights to a certain
property may be given to someone else in way of lease or
rent, still the owner remains to be the owner due to the
residuary characteristics to it.
6. The owner has the right to alienate the property as well as
the right to destroy it.
Incidents of ownership

1. Right to possess – ownership entails the right to possess the

thing owned even if there is no actual possession of it, only
the right is of the essence.
2. Right to use – ownership implies that the owner can use or
enjoy the thing owned in any manner he thinks fit without
injuring others and within the limits of the law.
3. Right to manage – ownership contains within it the right to
manage the property. It means that only the owner can
decide what to do with it, how to do and by whom it is to be
done, to transfer or to alienate or to destroy.
4. Right to income – ownership also entails the income
generated out of it is owned by the owner. All benefits
attached to the thing owned is the right of owner.

Modes of Acquisition of Ownership

There are two modes of acquisition of ownership and they are

original and derivative. Original mode when things which had not
been owned before and can be acquired by possession. The things
owned before ownership over that thing is by derivative mode.

Original mode is of three types absolute, extinctive and accession.

Absolute in case where it previously belonged to no one. It can be
acquired by either specification or occupation. In occupation an
ownerless thing is owned and in this the physical control is
essential. For example, birds, fish etc. In specification the material
belonging to other when the shape given by another. For example,
clay collected from someone’s land is made into a sculpture by
another. Extinctive when the ownership of previous person is done
with by reason of adverse possession by the acquirer. Accessary
when acquired as an accession.

Kinds of Ownership

Corporeal and Incorporeal Ownership –

Corporeal ownership is the ownership of material object. It is the
ownership of tangible things which can be perceived by the senses.
For example, ownership of house, factory, machines, etc.

Incorporeal ownership is the ownership of a right. It is the

ownership of intangible things which cannot be perceived by the
senses. It also includes intellectual property and encumbrances.
For example, ownership of shares, trademark, copyright, etc.

POSSESSION

Possession” literary means physical control over a thing or an

object. It expresses the closest relation of fact that can exist
between a thing and the person, who possess it.
In law, possession means it includes not only physical control
over a thing but also an intention to exercise that physical
control. Example: A has an article in his hand. In other words,
he is in possession of that article.
The person who is in possession is called a ‘Possessor’.
Definition:
The concept of possession is though basic and essential in
human life, it is a difficult to define. There is no fixed or precise
definition of possession because it is legal as well as factual
concept. Supreme Court in Superintendent Remembrancer
Legal Affairs vs Anil Kumar, AIR 1980 SC 52, held that it is
impossible to work out a completely logical and precise definition
of Possession uniformly applicable to all situation in the context
of all the statutes.
It is very difficult to define the term Possession. Some Jurists
have given different definitions.

Categories of Possession:
Possession is divided into two categories.
a) Possession in fact and
b) Possession in law.
Modes of acquiring possession:
There are 3 modes of acquiring possession

 Delivery: Delivery completes voluntary act from one person

to another. The transferor gives actual position to the
transferee. It is usually a lawful mode of possession.
Delivery may be actual of constructive. In actual delivery the
thing is physically delivered.
 Taking: Taking implies an Act exclusively on the part of the
person who physically takes the Possession. It is acquisition
of the Possession without the consent of previous Possessor.
It is the possession without the consent of the Possessor.
Sometimes it is said to be unilateral act. Transferee acquires
the possession without the knowledge or consent of the
former Possessor of the thing. It is usually possessio-civilis.
It may or may not be lawful. If it is lawful then it is legal
possession. i.e. possessio-juri.
 Operation of law: A third mode of the acquisition of
possession is by operation of law. It takes place when by the
operation of law goods are removed from the possession of
one person to the other. For example, when a person dies,
the things in his possession pass to his personal
representatives.

Kinds of Possession
Following are the important kinds of possession.

 Corporeal Possession: Those things, which are having

physical or material existence, wherein direct relationship
with the thing, are possible. For example, House has
physical existence which can be perceived by our senses.
The possession in the house therefore is Corporeal
Possession. Therefore corporeal possession is the possession
of material things, movable as well as immovable such as
the Car , book , pen, wristwatch, etc.
 Incorporeal Possession : It means Possession of
immaterial or intangible things. These are the things, which
do not have physical existence and therefore cannot be
perceived by our senses. Therefore possession in respect of
 this thing is known as incorporeal possession. For example
– Copyright, Trademark, Patent, Goodwill etc.
 According to Salmond, corporeal possession is Possession of
an object whereas incorporeal possession is the possession
of a right.
 Mediate Possession : It is the Possession of a thing through
another, either through his friend, servant for agent. As the
thing remains, in possession with another, the possessor
has lesser degree of physical control over such thing.

Title

Title is a link between a person and an object to establish

ownership of property. A title is the de facto antecedent of which
the right is the de jure consequent. Right of possession on
ownership comes in term of de facto first and later de jure.

Elements of Possession
There are two elements of possession:-

 Physical control or power over the object possessed; and

 The intention or will to exercise that power.

Corpus or physical control:-

1. The possessor’s physical relation to the rest of the object;

2. The relation of the possessor to the rest of the world.

Corpus means that the existence of such physical contact of a

person with thing as to give rise to a reasonable assumption that
the others will not interfere with it. There may be an actual
physical contact, (a coin in my hand or in my purse in the
pocket) or there may be the cases when there is no physical
contact e.g., when a person takes out the purse and drops by
mistake coin in the gutter; he walks ahead without noticing the
loss– here the corpus remains with him until someone else
picked it up.
The second element of the corpus is that the possessor must
have the ability to exclude others. There is no hard and fast rule
regarding the amount of power to exclude others.
Animus or intention:-
Animus means an intention to hold possession again all others
except the true owner. That is to say, the animus is the
conscious of the intention of an individual to exclude the others
from the control of an object.
The mental element in the possession may conceivably be
manifested in the following ways:-

 First, the person holding the property need not be the owner
and may exercise animus to exclude others on behalf of the
owners.
 Secondly, animus to exclude others need not be in the
interest of the processor or on his own behalf.
 Thirdly, animus to exclude others need not be specific.
 Fourthly, the animus to exclude others need not be based
on the legally enforceable claim. It may be the result of a
wrongful act.
 Fifthly, the animus to exclude others need not be absolute.
A person possesses a piece of land notwithstanding the fact
that some other person or even the public at large possesses
a right of way over it.
 Sixthly, the animus to exclude others must be wide enough
to include the actual thing considered.

Theory of Jural Relations

One of the most difficult hurdles to solving legal problems,
according to Hohfeld, is the idea that all legal notions can be
reduced to “rights” and “duties.” Furthermore, the
aforementioned two legal principles are seen to be sufficient in
assisting in the resolution of the issues. Although it may appear
to be a simple matter of terminology at first glance, Hohfeld
claims that in a “closely reasoned (legal) situation,” such an issue
might lead to a lack of clarity in ideas and communication. He
defines rights, privileges, authority, immunity, no-rights,
responsibility, disability, and liability as eight essential legal
ideas.
He then divides them into two categories: “jural opposites” and
“jural correlatives.” Every pair of correlatives must be present at
the same time, and no pair of opposites can coexist. As a result,
if a person has a right, he also has a responsibility. A person who
has a privilege, on the other hand, cannot have a responsibility.
The eight Jural Relations are the foundations of the more
complicated legal relationships that law must address. Let’s take
a closer look at each of the relationships one by one.
Rights and Duties
Since previously said, the phrase “rights” is one of the most
misinterpreted, as anything is attempted to be classified as a
right. The terms “rights” and “privilege,” “power,” and “immunity”
are often used interchangeably. Hohfeld, on the other hand,
believes that a careful examination of the statutes reveals a clear
distinction between the various legal concepts. According to
Hohfeld, the term “rights” should be limited to only that which
exists in relation to duty. Rights and responsibilities are
intertwined ideas, and when one is violated, the other is always
violated as well.

Powers and Liabilities

Immunities and Disabilities
Immunity is the legal equivalent of incapacity and the legal polar
opposite of responsibility. Simply put, immunity is the absence of
accountability. The difference between power and immunity,
according to Hohfeld, is the same as the difference between right
and privilege. According to him, a right is an “affirmative claim”
made against someone, whereas privilege is freedom from such
an affirmative claim. Similarly, power is the ability to exert
“affirmative control” over a legal relationship, whereas immunity
is the ability to be free of such control.

Privilege and No-rights

Privilege, according to Hohfeld, is the legal polar opposite of
obligation. According to him, privilege is the absence of
responsibility. The negation of obligation occurs only when the
substance of both the duty and the privilege are diametrically
opposed. The privilege of entering, for example, might nullify a
responsibility not to enter. Right is the correlate of duty.
Similarly, there is a correlative to privilege. However, because
there is no specific name to describe the situation, Hohfeld has
opted to call it a “no-right.”
Conclusion
Hohfeld’s study has certain beneficial aspects that should not be
disregarded. His method has improved our understanding of the
ideas of “rights” and “duties,” notably through his detailed
comparisons. He has called attention to the legal implications
that may arise from the existence or lack of specified rights,
responsibilities, and other obligations. The impact of the study
may be seen in the American Restatement of the Law of Property,
which uses Hohfeld’s words to define concepts like “right,”
“privilege,” “power,” and “immunity.”

What Is Feminist Jurisprudence?

Feminist jurisprudence is a field of study that critiques and
analyzes law from a feminist perspective. It encompasses a wide
range of issues, including gender discrimination, reproductive
rights, domestic violence, and sexual harassment.
Feminist jurisprudence often challenges the assumption that the
law is neutral and objective. Instead, it argues that the law is
deeply embedded in patriarchal values and structures. As such, it
can be used to perpetuate gender inequality.
Feminist jurisprudence has played a key role in shaping laws and
policies related to gender equality.

Feminist jurisprudence encompasses diverse perspectives aimed at

understanding and addressing the systemic inequalities women face
within legal systems. Among these perspectives, three significant
schools of thought have emerged: Liberal Feminism, Radical
Feminism, and Cultural Feminism.

Each of these schools offers unique insights into the nature of gender
oppression and proposes distinct strategies for achieving gender
equality within legal and social frameworks.

Liberal Feminism
Originating from the 18th century, liberal feminism emphasises
individualism and equality through legal and political reform.
Advocates of this school argue that women face discrimination due to
societal beliefs in their inferiority, leading to barriers to accessing
opportunities in politics and economics. Liberal feminists advocate for
gender-blind laws and equal treatment based on universal human
rights principles. They seek to dismantle legal and social barriers that
hinder women’s participation in public life.

2. Radical Feminism
Radical feminism challenges the patriarchal structures that perpetuate
male dominance and oppression of women. Viewing society as
fundamentally patriarchal, radical feminists seek to abolish this
system to liberate everyone from injustice. They critique the
objectification of women, raise awareness about issues like rape and
violence, and challenge traditional gender roles. Radical feminists
argue that men, as a class, benefit from the oppression of women and
advocate for a radical reordering of society to eliminate male
supremacy.

3. Cultural Feminism
Cultural feminism diverges from liberal feminism by focusing on
celebrating and valuing women’s differences from men. Rejecting the
idea of assimilating women into patriarchal structures, cultural
feminists advocate for changing institutions to accommodate and
reflect values traditionally associated with femininity, such as empathy
and nurturing. This perspective emphasises female attributes and
advocates for independence and the creation of institutions that
recognise and promote women’s unique contributions.