Utility and Importance of Jurisprudence

Commonly it is said that law being a theoretical and hypothetical subject, has no utilization in the
everyday world. It just contains speculations to contemplate and embrace with no reasonable
ramifications. Be that as it may, it isn’t right or proper to offer such an expression. Its utilities are as
under:

1. Salmond stood out for everyone to the way that law has its characteristic advantages like different
subjects of law. For such a long time, the exploration work done on statute may have their impact on
contemporary socio-political idea or thought.

2. Statute likewise has its reasonable materialness in one manner or the other in the field of law. It
encourages advocates by and by to apply and embrace diverse legitimate speculations at whatever
point required.

3. It is considered as an optional or auxiliary subject yet has a high incentive in instructive

establishments. Statute is a basic subject for the investigation of law. The coherent investigation by
law specialists of lawful ideas and hypotheses expands the standpoint of supporters and hones their
reasonable strategy to look a case successfully. It assists legal counselors with neglecting their
inflexibility and formal nature and trains them to work and spotlight on social real factors.

4. Holland watched, “the ever-recharged unpredictability of human relations require the expanding
multifaceted nature of lawful subtleties, till an only exact information on law gets unthinkable.” From
this, we can infer that statute illuminates the essential thoughts and the basic standards of law in the
public arena. This is the explanation it is considered as “the eye of law.”

5. The investigation of statute helps understudies, assistants, and all rehearsing advocates in building
up the right reasoning and sets them up for a fair life ahead. The information on law likewise
encourages them to confront each need identified with human issues intensely and bravely.

What is the Historical School of Jurisprudence?

The Historical School of Jurisprudence is a legal philosophy that emerged in the 19th century,
emphasising the significance of historical and societal context in understanding and shaping legal
systems. This school of thought contends that laws are not abstract, universal principles but are
intricately connected to the customs, traditions and evolving consciousness of a society.

Key figures such as Friedrich Carl von Savigny, Montesquieu and Georg Friedrich Puchta played
pivotal roles in developing this jurisprudential approach. Savigny’s concept of “Volksgeist”
highlighted the collective will of the people in moulding the law, while Montesquieu emphasised the
necessity of adapting laws to changing social and environmental conditions. Puchta refined and
rationalised these ideas.

The Historical School of Jurisprudence acknowledges the value of legislation and codification while
stressing the continuous evolution of laws to meet the needs of a progressing society. It has
significantly enriched our comprehension of law as a dynamic reflection of the human experience
across time, providing valuable insights into the development and transformation of legal systems.

Reasons for the Origin of Historical School of Jurisprudence

The Historical School of Jurisprudence believes that laws are created by people to meet their
changing needs. This school primarily draws its ideas from the customs and habits of a society. It
emerged as a response to the natural law theories.
There are a few reasons for the development of this school of thought:

Reaction to Natural Law

The Historical School arose as a reaction to the natural law perspective. The natural law theory
asserts that laws originate from a divine power and have existed since the beginning of the world. It’s
closely linked to moral and divine intentions. Some aspects of India’s constitution also reflect the
influence of natural law.

People-Cantered Law

The Historical School of Jurisprudence emphasises that laws are formed by people themselves, not
through divine origins. It opposes the ideas of the Analytical School of Jurisprudence, also known as
the Austinian School, which was established by John Austin. The Analytical School focuses on positive
law, examining its origins in judges, the state and legislators. In contrast, the Historical School
underscores that law is shaped by people’s customs and habits, not by judges or higher authorities.

Jurists of Historical School of Jurisprudence

Montesquieu

According to Sir Henry Maine, the first legal scholar to use the Historical School of Jurisprudence in
understanding legal institutions was Montesquieu. Montesquieu laid the groundwork for the
historical school of thought in France. He believed that it was not meaningful to debate whether a
law was good or bad in isolation, as the quality of a law depended on the social, political and
environmental conditions of a society.

Montesquieu’s conclusion was that laws were shaped by factors such as climate, local circumstances,
accidents, or even deceit. He argued that laws should adapt to the changing needs of society.
However, Montesquieu did not establish a specific theory or philosophy regarding the relationship
between law and society. Instead, he proposed that laws should be responsive to the unique
requirements of a place and should evolve over time to meet the changing needs of the people.

One of Montesquieu’s most well-known works is his book ‘The Spirit of Laws,’ in which he expressed
his belief in Enlightenment political ideas and advocated for the adaptation of laws to suit the
evolving needs of both individuals and society.

Savigny

Savigny is often credited as the pioneer of the Historical School of Jurisprudence. He argued that the
coherence of a legal system is frequently misunderstood due to a lack of understanding of its history
and origins. According to Savigny, the law is a product of its time, with its origins rooted in human
nature’s predisposition to form societies. It evolves into various forms based on the influences it
encounters.

Savigny believed that the law could not be borrowed from external sources; instead, it primarily
stems from the collective consciousness of the people. He held the view that a state’s law thrives as
its national identity strengthens and withers when national identity weakens within the state.

Friedmann summarised Savigny’s theory on Historical School of Jurisprudence as follows:

Law Grows Like Language: Law, like language, naturally evolves over time.
  Not Universally Valid: Law cannot have universal applicability or be constructed solely on
rational or eternal principles.

 Sui Generis: Law is unique and has its own national character. It cannot be universally
applied and varies according to the people it governs.

 Discovered, Not Made: Law is discovered based on the consciousness, customs and beliefs
of the people.

Savigny’s concept of “Volksgeist” or “national character” implies that law is the result of the general
consciousness and will of the people. It serves as a caution against hasty legislation and the
introduction of radical, abstract ideas into the legal system unless they align with the general will of
the populace.

Savigny essentially advocated that law should not be created through deliberate legislation but
should naturally arise from the collective consciousness of the people.

However, Savigny’s views faced criticism:

 Charles Allen: Allen argued against Savigny’s notion that law should be based on customs,
asserting that customs are often driven by the interests of powerful ruling classes rather than
the collective consciousness of the people. For example, the practice of slavery in certain
societies was upheld by powerful classes, not a reflection of common consciousness.

 Prof. Stone: Prof. Stone criticised Savigny for neglecting the effectiveness of legislation and
planned legal and social changes. He believed that Savigny placed too much emphasis on the
consciousness of the people. In some cases, effective legislation is necessary to bring about
significant social change, as seen in India’s abolition of Sati and promotion of widow’s
remarriage, which were driven by powerful and effective legislation.

Sir Henry Maine

Sir Henry Maine is recognised as the founder of the English Historical School of Law and he continued
the ideas of the Historical School of Jurisprudence, as established by Savigny and Montesquieu, in
England.

Some of his major works include:

 Ancient Law (1861): This was Maine’s first significant work, which explored the development
of legal systems over time.

 Village Communities (1871): In this work, Maine delved into the concept of village
communities and their legal and social structures.

 Early History of Institutions (1875): This book examined the historical evolution of various
institutions, including legal ones.

 Dissertations on Early Law and Custom (1883): Maine’s dissertations further explored the
evolution of early legal systems and customs.

Maine had a deep understanding of the Indian legal system because he served as a law member in
the Council of the Governor-General of India from 1861 to 1869. His ideas incorporated elements
from the theories of Savigny and Montesquieu, while avoiding the abstract and unrealistic aspects of
Romanticism.
Unlike Savigny, Maine favoured legislation and the codification of law. He described the development
of law in four stages:

 First Stage: Rulers are believed to act under divine inspiration and laws are made based on
their commands. The king’s judgment is seen as the judgment of God and the king is an
executor of divine judgments rather than a law-maker.

 Second Stage: The king’s commands gradually transform into customary law, which prevails
among the ruler or majority class. Custom takes precedence over the king’s authority.

 Third Stage: The knowledge and administration of customs shift to a minority class due to
the weakening of the original law-making power. The ruler is replaced by this minority class,
which gains control over the law.

 Fourth Stage: In the final stage, the law is codified and officially promulgated.

Maine classified societies into two categories:

 Static Societies: These societies do not progress beyond the era of codified laws. They do not
evolve their legal structures further.

 Progressive Societies: These societies continue to progress beyond the codification stage.
They develop their legal systems using instruments such as legal fiction, equity and
legislation:

Legal Fiction: Legal fiction allows changes in the law to align with societal needs without altering the
letter of the law. However, it can make the law complex and challenging to understand.

Equity: Maine described equity as a set of rules existing alongside the original civil law, founded on
distinct principles. Equity helps to address rigidity and injustice in the legal system.

Legislation: According to Maine, legislation is the most effective and desirable method of legal
change. Laws are enacted officially and become operative through legislation.

Georg Friedrich Puchta

Georg Friedrich Puchta was a prominent German jurist who belonged to the Historical School of
Jurisprudence and was a disciple of Savigny. Puchta is often recognised for refining and enhancing
the ideas of Savigny. His focus lay in tracing the development and evolution of law right from its
inception. His primary concern revolved around situations where conflicts arose between the general
will of society and individual will, leading to the emergence of the state as a means to reconcile these
conflicts.

One of the central concepts of Puchta’s ideas was that “neither the people nor the state alone can
create and formulate laws.” He emphasised that both the state and individuals contribute to the
formation of law.

Puchta’s contributions can be summarised as follows:

 Two Aspects of Human Will and the Origin of the State: Puchta explored the duality of
human will, highlighting the tension between the general will of society and the individual
will. He argued that the state’s existence is a result of attempting to find a middle ground to
resolve these conflicts.
  Refinement of Savigny’s Ideas: While Puchta was a disciple of Savigny, he improved upon
Savigny’s views and made them more logically coherent. His contributions built upon the
foundation laid by Savigny, enhancing and refining the concepts of the Historical School of
Jurisprudence.

Conclusion

The Historical School of Jurisprudence, spearheaded by influential thinkers such as Savigny,

Montesquieu and Puchta, has left an indelible mark on legal philosophy. Historical School of
Jurisprudence emphasises the historical and societal context in which laws develop and evolve. It
asserts that laws are not abstract principles but are deeply rooted in the customs, traditions and
consciousness of the people.

Savigny’s concept of “Volksgeist” underscored the importance of the collective will of the people in
shaping the law. Montesquieu highlighted the need for legal adaptation to changing social and
environmental conditions. Puchta’s contributions refined and rationalised these ideas.

The Historical School of Jurisprudence’s influence extends to recognising the value of legislation and
codification while stressing the ongoing evolution of laws to meet the needs of a progressing society.
In essence, this school has enriched our understanding of law as a dynamic reflection of the human
experience throughout history.

Analytical School of Jurisprudence is a significant school of thought in jurisprudence. It was Austin

who played a key role in developing this school, which aims to explain law by examining its nature,
purpose, characteristics and functions. This school traces the history and philosophy of evolving
human ideas regarding law.

The positivist movement (Analytical School of Jurisprudence) emerged in the early 19th century
because, during that time, the natural theory of law lost relevance due to the growing influence of
the scientific method on social sciences, including jurisprudence.

Jurists like Austin, Hart and others within this school focused on understanding positive law, which
means they looked at “law as it is” rather than “law as it should be.” Jurists of the Analytical School
of Jurisprudence believed that law had no connection to moral principles.

These jurists were often referred to as “positivists,” and their school became known as the “positivist
school.”

Positivists shared common objectives and perspectives, guided by a few fundamental assumptions:

 Sovereign or Grundnorm: They regarded law as created by authority figures.

 Emphasis on “law as it is”: They concentrated on the existing state of the law, ignoring
considerations of what the law should be. Morality and natural law were disregarded.

 Sanction as a concept: They highlighted the idea of sanctions, which were considered
significant before the enforcement of laws.

Contents hide

1. Features of Analytical School of Jurisprudence

2. Purpose of Analytical School of Jurisprudence

3. History of Analytical School of Law

4. Principles of Analytical School of Jurisprudence

5.Founder and Advocates of the Analytical School of Jurisprudence

5.1. Bentham

5.2. John Austin

5.3. Criticism of Austin’s Theory

5.4. Professor Dias’s Comparison of Bentham and Austin’s Propositions

5.5. Hart’s Concept of Law

5.6. Criticism of Hart’s Proponents

5.7. Kelsen’s Concept of Law

5.8. Criticism Surrounding Kelsen’s Theory

6. Conclusion

Features of Analytical School of Jurisprudence

 Focus on What Law Is: Analytical School of Jurisprudence is concerned with understanding
what the law is, rather than what it should be.

 Law’s Basis in Power: It asserts that law is based on the authority and power of those who
enact and enforce it.

 Absence of Moral Law: Positivists argue that there is no inherent moral aspect to law.

 Distinction Between Law and Justice: This school differentiates between law and justice,
seeing them as distinct concepts.

 Reaction to Natural Law Theories: The Analytical school opposes natural law theories, which
rely on rationalisation, nature, God and emphasise ethical and moral considerations.

Purpose of Analytical School of Jurisprudence

The main objective of the Analytical School of Jurisprudence is to examine and understand the law as
it currently exists in its present form. In this school of thought, law is seen as the direction given by
the Sovereign authority.

It differs from a priori approaches and aims to study the actual principles of law within the legal
system. The Analytical School also seeks to define the relationship between law and the state.

History of Analytical School of Law

In contrast to the concept of Natural Law, which suggests that laws have their origins in a supreme
source and are not man-made, the Analytical School emerged as a reaction against such ideas.

Natural Law was dominant until the 18th century, with some arguing that its principles should
override human-made laws. The Analytical School of Law challenged this perspective.

Principles of Analytical School of Jurisprudence

The Analytical School seeks to differentiate between how the law currently exists and how it should
be. While acknowledging the role of moral factors in shaping law, proponents like Austin tend to
disregard moral considerations in their theories.

Analytical Jurists assert that law is a product of human will, meaning it is created by someone or
some authority. This school of thought takes a firm stance against ethics and concentrates solely on
positive law—focusing on the factual aspects of the law.

Founder and Advocates of the Analytical School of Jurisprudence

Bentham (1742-1832), Austin, Sir William Markby (1829-1914), Sheldon Amons (1835-1886), Holland
(1835-1926), Salmond (1862-1924) and Prof. HLA Hart (1907) are some of the notable figures who
played significant roles in advancing the Analytical or Positivist school of thought in England.

In the United States, Gray and Hohfled also contributed to the Analytical School of Law, while in
continental Europe, proponents like Kelsen and Korkunov, among others, lent their support to its
development.

Bentham

Bentham advocated for the Analytical School of Jurisprudence, where sovereignty and command
played central roles. He recognised the contrast between what society desired and what was logically
necessary. Bentham also acknowledged the concept of divided and partial sovereignty while
discussing the legal limitations that sovereign authorities might encounter. Unlike Austin, Bentham’s
theory placed less emphasis on sanctions. He believed that a sovereign’s decree would constitute a
law, even if supported solely by religious or moral consequences. Bentham’s perspective also
acknowledged the use of attractive incentives and the idea of rewards in his theory.

John Austin, an English lawyer (1790–1859), simplified Bentham’s philosophy of law and significantly
influenced legal thought in the twentieth century. Bentham also critiqued the common law system,
which was often seen as the exclusive realm of legal professionals like lawyers and judges, who used
complex and technical language to obscure the law from the understanding of ordinary citizens. This,
in Bentham’s view, perpetuated a myth. He believed that lawyers were experts in “artificial reason,” a
concept originally proposed by Coke.

Bentham differentiated between expositorial jurisprudence (what the law is) and censorial
jurisprudence (what the law should be). His definition of law was that it constituted “an assemblage
of signals, affirmations of intention conceived or chosen by a sovereign in a State.” While he
supported the idea of laissez-faire in economics (minimal government intervention in economic
activities), he advocated for utilitarianism, which meant that the primary purpose of legislation
should be to promote the greatest happiness for the greatest number of people.

Bentham defined utility as the tendency of something to prevent pain or procure pleasure. According
to him, legislation should aim to provide sustenance, generate abundance, ensure equality and
preserve security. However, Bentham’s hedonistic doctrine, which evaluated laws based on pleasure
and pain, has faced criticism, with some arguing that pleasure and suffering alone cannot be the
ultimate measure of a law’s suitability.

John Austin

John Austin (1790-1859) served as a lecturer at the University of London and developed an analytical
approach to law, emphasising the rigorous examination and discovery of the underlying principles of
law. His focus was primarily on Positive law, also known as Jus positivism, which he defined as “Law,
simply and strictly so-called: Law set by political superiors to political inferiors.” Consequently, he
coined the terms “analytical” and “positivism” to describe his school of thought, leading to its
designation as Analytical Legal Positivism. Austin is often regarded as the founder of the Analytical
school and his lectures were published under the title “The Province of Jurisprudence Determined.”

Austin’s definition of law was as follows: “a rule laid down for the guidance of an intelligent being by
an intelligent being having power over him.” He categorised ‘proper law’ into three types: God’s law,
Human laws and Positive laws. He also identified two types of ‘improperly’ named laws: laws by
analogy and laws by metaphor. Austin explained that “Positive morality” included laws not imposed
by individuals in positions of political authority or in pursuit of a legal right. Laws imposed by analogy,
such as fashion laws, also fell into this category. Importantly, Austin noted that improper laws were
not sanctioned by the State.

According to Austin, every law, properly speaking, must consist of three elements: command,
sanction and sovereign authority. He asserted that “law is the mandate of a sovereign, ordering his
subjects to do or refrain from specific actions, with an implied threat of punishment for non-
compliance.” A ‘command’ represents the wish of a specific individual or group that another person
follows specific instructions, with the threat of ‘sanction’ (punishment) in case of disobedience.
Commands can be specific (directed at individuals or groups) or universal (issued to the entire
community and applicable to classes of actions or abstentions, often referred to as ‘continuous
orders’).

Austin believed that the foundation of sovereignty was the habitual obedience to a particular human
superior who was not accustomed to obeying a similar superior. Sovereignty was characterised by
unrestricted and indivisible power, with no legal constraints or limitations and no separation of
powers.

Austin’s conception of jurisprudence focused on the legal systems of civilized nations as the
legitimate subject matter. This was because only in such societies could the sovereign effectively
enforce their orders through an efficient administrative apparatus. Austin did not consider customs
in his definition. He recognised three types of law that could be exceptions to his command-based
definition and fall within the scope of jurisprudence: declaratory or explanatory laws, laws of repeal
and laws of imperfect obligation (laws without sanctions). Constitutional law, in Austin’s view,
derived its authority from public opinion regarding its expediency and morality.

Criticism of Austin’s Theory

Austin’s legal thesis has faced criticism, primarily because it heavily focuses on punishment as the
primary means of ensuring compliance, overlooking other aspects of law’s nature and purpose
within a community. This concentration on punishment can obscure and distort the true essence of
law. Critics argue that Austin’s dismissal of law as a man-made construct ignores its capacity for
organic growth. In practice, as a community accepts and follows the law, it becomes an embodiment
of the people’s collective will. Additionally, constitutional norms and conventions can govern both
the behaviour of individuals and the state, even if they are not enforceable by law. Furthermore,
court judgments, or precedents, often become binding laws without explicit command.

Austin’s distinction between positive law and positive morality, according to Justice Holmes, was
intended to keep notions of virtue and morality separate from the realm of law. Austin’s positive law
theory, in this view, does not consider ideals or justice in law. Holmes explained that “the existence
of law is one thing, its merit and demerit another. A law that actually exists is a law, even if we
happen to dislike it or if it differs from the text by which we regulate our approval or disapproval.”
This approach disregards laws that are permissive and grant privileges, such as the Bonus Act or the
Law of Wills.

Some critics, like Bryce, argue that Austin’s contributions to legal research are limited and contain
errors, suggesting that his work may no longer be suitable for students.

According to Duguit, the concept of command is not applicable to modern social and welfare law,
which often confers advantages or rights and binds the state rather than individuals. In contemporary
democratic welfare states like India, finding a single sovereign with unrestricted and absolute power
to establish laws, as Austin’s theory suggests, is implausible.

Professor Hart, while acknowledging Austin’s shortcomings, noted that the Austinian formula
specifies a crucial requirement: laws that impose responsibilities or duties must be “usually
followed.” However, Hart argued that this only accounts for the end result of the legal system. While
there is overwhelming evidence against Austin, it is important to recognise that law is composed of
prescriptions for behaviour, often expressed in the imperative form, even though Austin’s theory has
limitations.

Professor Dias’s Comparison of Bentham and Austin’s Propositions

Professor Dias conducted a comparison between Bentham and Austin on the Analytical School of
Law, concluding that Bentham’s theory was more comprehensive and flexible than Austin’s. Here are
the significant points of comparison highlighted by Professor Dias:

Definition of Sovereignty: Bentham’s definition of sovereignty was more open-ended, allowing for
flexibility and avoiding the constraints of indivisibility and illimitability. This flexibility allowed
Bentham to accommodate scenarios where authority is divided among different organs, as in a
federation, or within specific sectors. It also allowed for constraints on authority and self-
bindingness.

Scope of Law: Bentham had a broader understanding of the law compared to Austin. He avoided the
notion of “law properly so-called,” which Austin’s theory had. This broader perspective allowed for a
more inclusive view of what constitutes law.

Sanction: Bentham’s concept of sanction was both broader and less significant than Austin’s.
According to Bentham, laws are laws, even if they are justified by moral or religious sanctions. They
might even be accompanied by rewards. This approach acknowledged a wider range of motivations
for obeying the law.

Sanction by Nullity: Unlike Austin, Bentham didn’t rely on the concept of “sanction by nullity.” His
theory had an imperfection in its imperative basis, but it was more flexible and expansive than
Austin’s. Bentham’s theory could accommodate permissions to a certain extent and didn’t rely on the
fiction of ‘tacit command.’

Hart’s Concept of Law

Professor HLA Hart (1907) is widely regarded as one of the most prominent advocates of British
positivism in modern times. He critiqued Austin’s thesis in his influential work titled “The Concept of
Law.” Hart’s analysis led to a more nuanced understanding of law:

Nature of Law: Hart proposed that law consists of norms with broad applicability and non-optional
character. These norms are subject to formalisation, legislation and adjudication. In essence, law
comprises social norms that have evolved to take on the form of legal regulations. The term ‘law’
refers to a set of publicly ascertainable regulations.

Legal Rules and Duty: According to Hart, a legal rule establishes a code of behaviour that is followed
with an expectation of compliance. The law sets a standard of behaviour rather than making a mere
demand. People follow this norm not only out of a sense of duty but also because they expect others
to do the same. This perspective emphasises duty over coercion and highlights the role of social
acceptance.

Duty vs. Coercion: Hart stressed that the law is more concerned with duty than with coercion. While
individuals cannot be forced to obey the law, they are considered to have a duty to do so. Duty and
responsibility are closely related concepts in this context.

Internal and External Elements: Hart made a distinction between the internal and external aspects
of rules. Internalisation signifies that a rule is accepted by people, while habitually obeyed (as
defined by Austin) indicates external compliance. Hart argued that Austin’s predictive theory focused
solely on external elements and ignored the internal aspects of rules.

Primary and Secondary Rules: Hart categorised rules into two types. Primary rules establish norms
of conduct and impose obligations, such as international law. Secondary rules determine, introduce,
eliminate, or modify the primary rules. Power-conferring rules, both public and private (e.g., statutes
and constitutions), fall into the category of secondary rules. The “rules of recognition” derive from
these secondary rules and provide authoritative criteria for identifying primary norms of duty.

Ultimate Rule of Recognition: Hart introduced the concept of the “ultimate rule of recognition,”
which serves as the final requirement for the legality of a legal order. It plays a crucial role in
establishing the legitimacy of a legal system.

Core of a Legal System: Hart argued that a legal system’s core consists of the combination of primary
and subsidiary rules. For a legal system to function effectively, both citizens must adhere to primary
norms and authorities must follow secondary rules. These two requirements are both necessary and
sufficient for the existence of a legal system.

Hart’s theory of law places significant emphasis on the role of official behaviour and addresses
important questions about the relationship between the validity and efficacy of legal rules. In his
view, a rule is considered “valid” when it meets the conditions established by the rule of recognition
and it is considered “effective” when people adhere to it. While an ultimate rule of recognition need
not be legitimate, it must not be ignored, meaning that officials must obey it for a legal system to
function properly.

Criticism of Hart’s Proponents

The theories of HLA Hart have faced criticism and alternative perspectives from jurists like Ronald
Dworkin and Lon Fuller:

Ronald Dworkin: Dworkin challenged Hart’s concept of law by introducing the distinction between
‘rules’ and ‘principles.’ He argued that a legal system should not be seen merely as a collection of
rules but as a combination of sound principles and policies. According to Dworkin, a principle is a
norm that must be followed because it is a necessity of justice, fairness, or another facet of morality.
In Dworkin’s view, law is not just about rules but also about upholding principles of justice and
morality.
Lon Fuller: Fuller emphasised that the legal system should concern itself with both “law as it is” and
“law as it ought to be.” He believed that the law should not be divorced from the concept of morality.
Fuller argued that the legal system is a tool for guiding normal human behavior and it should reflect
not only existing laws but also moral principles and values. In his famous work “The Morality of Law,”
Fuller explored the idea that law should aim for internal morality, which means that it should align
with the principles of fairness, justice and morality.

Kelsen’s Concept of Law

Hans Kelsen (1881-1973), a prominent figure of the ‘Vienna School’ of legal philosophy, developed a
“pure theory of law” that sought to create a theory of law free from extraneous influences like social,
historical, political, psychological factors, focusing exclusively on the technical and logically self-
supporting aspects of law. Here are some key aspects of Kelsen’s legal philosophy:

Normative Nature of Law: Kelsen viewed law as a normative system, a “coercive order.” In other
words, law prescribes what should happen (norms) rather than describing what actually happens (is).
For example, if someone commits theft, the law prescribes that the individual should be penalised.

Norms and Ought Propositions: According to Kelsen, laws are expressed as “ought propositions” or
norms. These norms dictate that if a certain condition is met, a specific consequence should follow.
They establish a set of principles for human behaviour.

Hierarchy of Norms: Kelsen introduced the concept of a “ladder of norms,” where each norm derives
its validity from a higher norm. Norms are valid because they are either decreed by a higher standard
or are part of a legitimate legal hierarchy. Some norms are coercive, while others are facilitative and
do not compel individuals (e.g., the right to write a will).

Fundamental Norm (Grundnorm): The entire legal system can be traced back to a fundamental
norm, the “grundnorm,” from which it derives its legitimacy. This grundnorm must be effective,
meaning that people must trust it. The grundnorm varies; it can be a written constitution or a
dictator’s will, depending on the legal system.

Validity and Pre-Supposition: The validity of norms in a legal system is accounted for by the
grundnorm. However, the grundnorm’s validity cannot be objectively evaluated; it must be assumed
or pre-supposed. It seeks legitimacy outside the law itself and confers legality as long as the legal
order is “by and large effective.”

Dynamic Legal System: Kelsen’s theory presents a formal, scientific and dynamic view of the legal
system. It does not incorporate theories of justice and aims to be objective and value-neutral. It
focuses on the structure and validity of legal norms.

Influence and Legacy: Hans Kelsen’s pure theory of law has had a significant impact on modern legal
philosophy. His ideas have been championed by eminent jurists like Julius Stone and H.L.A. Hart,
contributing to ongoing discussions about the nature and structure of legal systems.

Criticism Surrounding Kelsen’s Theory

Critics have raised several objections to Hans Kelsen’s pure theory of law, highlighting some
limitations and contentious points in his legal philosophy:

Legitimacy vs. Effectiveness: One major criticism is that Kelsen’s theory suggests that a legal order is
considered lawful as long as it is successful or effective, regardless of its legitimacy or how it was
enacted. This perspective can lead to situations where laws that are fundamentally illegitimate but
enforced effectively are still considered valid.

Lack of Criterion for Grundnorm’s Efficacy: Kelsen’s theory does not provide a clear criterion for
determining the minimal efficacy required for a grundnorm. The effectiveness of the grundnorm
alone does not necessarily imply the validity or legitimacy of the entire legal system.

Limited Role of Grundnorm: Critics argue that Kelsen’s theory assigns the grundnorm the role of
generating or verifying a legal order but does not offer substantive content to the legal system. This
raises questions about how norms derive their content and whether they can remain “pure” when
the grundnorm is influenced by various social and political factors.

Role of Courts: Kelsen’s theory places a significant burden on the courts to determine the standard
of the grundnorm and assess the legitimacy and efficacy of a legal order. Critics question whether
this places too much power in the hands of the judiciary.

Julius Stone’s Critique: Julius Stone challenged Kelsen’s assumption that all norms, except the
grundnorm, are “pure.” He argued that when the grundnorm itself is influenced by various social and
political variables, it is unrealistic to consider other norms as pure. Stone’s critique emphasised the
complexity and interplay of factors in legal systems.

Coercion-Centric View: Kelsen’s theory, like Austin and Hart, has been criticised for its emphasis on
external coercion in defining law. Critics argue that this approach fails to consider the underlying
worth or quality of laws and focuses solely on formal conditions.

Exclusion of Morality: Kelsen, along with Austin and Hart, is criticised for excluding morality from the
essence of law. Critics argue that the purpose and moral content of laws should also be considered
and law cannot be divorced entirely from moral considerations once enacted.

Conclusion

The Analytical School of Jurisprudence is a prominent approach in legal philosophy that seeks to
understand and analyse law by focusing on its internal logic, structure and language. It emphasises a
rigorous examination of legal concepts and principles, aiming to provide clear and objective
interpretations of legal rules.

Proponents of this school, such as John Austin and H.L.A. Hart, distinguish between “law as it is” and
“law as it ought to be,” prioritising the former. They contend that law is a product of human will,
created by political authorities and that it should be studied as a factual phenomenon rather than a
moral or normative one. The Analytical School of Law has had a significant influence on the
development of legal theory, particularly in common law jurisdictions, shaping discussions about the
nature and function of law within societies.

Understanding Legal Realism

Legal Realism is a jurisprudential movement that seeks to understand the law as it operates in
practice, emphasising the role of judges and their decisions in shaping legal outcomes.

Unlike traditional legal schools of jurisprudence that view the law as a collection of objective rules
and principles, Legal Realism contends that the law is, in fact, subjective and malleable. It suggests
that judges’ personal experiences, biases and societal influences play a significant role in their
decision-making processes.

Key Features of Realist School of Jurisprudence

The Realistic School of Jurisprudence, often referred to as Legal Realism, is characterised by the
following key attributes:

Law as a Good Reason for a Bad Man

Legal Realists often humorously define law as “a good reason for a bad man.” This phrase
underscores the idea that individuals, particularly those with nefarious intentions, are primarily
concerned with the practical consequences of their actions within the legal system.

In other words, the law serves as a practical guide for individuals to navigate their behaviour within
societal boundaries.

Rejecting the Myth of Objectivity

Legal Realism rejects the notion that the law is objective and impartial. Instead, it acknowledges that
judges’ personal backgrounds, beliefs and experiences inevitably influence their decisions. This
acknowledgement challenges the traditional belief in the neutrality of the legal system.

Focus on Judicial Decision-Making

Legal Realism places a significant emphasis on studying judicial decision-making processes. It seeks
to understand how judges arrive at their verdicts, taking into account factors beyond the mere
application of legal rules.

Movement Rather Than a School

Legal Realism is not a traditional school of thought but rather a movement within jurisprudence. It
encompasses various perspectives and approaches to law.

Pragmatic Approach

Realism views law as a means to achieve social ends and addresses legal concepts in a manner that
reflects the dynamic nature of society, which changes more rapidly than the law itself.

Divorce of ‘Is’ and ‘Ought’

This approach temporarily separates the descriptive aspect (‘is’) from the prescriptive aspect
(‘ought’) of law to facilitate objective analysis. Ethical considerations are intentionally set aside to
maintain objectivity.

Distrust in Traditional Legal Values

Legal Realism challenges the traditional legal values and concepts, highlighting that they often
describe what courts or common people are doing rather than prescribing how they should behave.

Focus on Law’s Effects

Realism, in jurisprudence, places significant emphasis on evaluating the practical effects of legal rules
and principles.

Notable Jurists of Realist School of Jurisprudence

The Realist School of Jurisprudence boasts a rich array of influential jurists who made substantial
contributions to the development of Legal Realism. Let’s explore some of the key figures in this
movement:

John Chipman Gray (1839-1915)

Often regarded as one of the founding fathers of the Realist movement, Gray was instrumental in
shaping the school’s early principles. Gray believed that the court, rather than the legislature,
constituted the most significant source of law. He argued that judges played a pivotal role in giving
life to the words of statutes.

His work laid the groundwork for a more critical approach to jurisprudence that focused on non-
logical variables affecting judgment, such as judges’ personalities and biases.

Oliver Wendell Holmes, Jr. (1841-1934)

Holmes is renowned for his “bad man’s theory,” which views law from the perspective of potential
wrongdoers. He emphasised that law serves the interests of those who may potentially violate it,
rather than those who follow it obediently.

Holmes separated law from ethics and morality, asserting that understanding the law’s practical
implications required examining it from a realist perspective.

Jerome N. Frank (1889-1957)

Frank categorised Realists into two groups: one skeptical of legal standards ensuring consistency in
the law and the other skeptical of the establishment of facts before trial courts.

He was part of the second group and emphasised the unpredictability of the legal system.

Frank argued that rigid adherence to precedent and defined rules was misguided and he advocated
for lawmaking that considered the evolving societal context.

Carl N. Llewellyn (1893-1962)

Llewellyn expanded on the Realist approach by considering legislation as a tool for achieving broader
social goals. He argued that the law needed to be examined in its entirety, including its purpose and
impact on society.

Llewellyn introduced the concept that law is essentially a prediction of what the court will do in
specific situations, highlighting the pragmatic nature of legal decisions.

Scandinavian Realism

In addition to American Legal Realism, there is a Scandinavian variant of this jurisprudential

movement. Scandinavian Realism shares some common elements with its American counterpart but
also exhibits distinct features.

Key Figures of Scandinavian Realism

Axel Hagerstorm (1868-1939)

Often considered the founder of Sweden’s Realist movement, Hagerstorm was a vocal critic of the
foundational principles of law. He emphasised the psychological aspect of doing what is right and
believed that individuals fight more effectively when they believe they are fighting for what is just.

Hagerstorm challenged the existence of objective values and viewed contemporary law as ritualistic,
akin to ancient legal systems.

Karl Olivecrona (1897-1980)

Olivecrona’s approach to Realism focused on investigating the nature of law, rather than providing a
precise definition. He rejected the idea of “binding forces” behind the law and stressed the
importance of examining the facts.

Olivecrona believed in exploring the law empirically, without making unwarranted assumptions.

Alf Ross (1899-1976)

Alf Ross, a Danish jurist, explored the moral aspects of law and categorised norms into conduct and
procedure. He raised doubts about the legitimacy of legislation and questioned the application of
social realities to the interpretation of the law.

Ross was concerned with the normative character of law and its implications for legal orders and the
role of courts.

A.V. Lundstedt (1882-1957)

Lundstedt dismissed the notion of justice as a purely abstract concept and advocated for examining
only physical facts in the study of law.

He mocked concepts like rights and responsibilities, emphasising the consideration of what is best for
society as a whole, rather than notions of justice.

Criticisms of Realist School of Jurisprudence

The Realist School of Jurisprudence has faced criticism on several fronts:

 Underestimation of Legal Principles: Critics argue that Realists tend to underestimate the
importance of legal principles and rules, often viewing law as a puzzle of unrelated decisions
rather than a coherent system.

 Overemphasis on Litigation: While Realists focus on litigation, they may overlook broader
aspects of law that do not come before the courts.

 Attack on Certainty: Realists have criticised legal certainty and the myth of a fully predictable
legal system. Critics argue that a substantial degree of certainty exists in the law.

 Human-Centric Perspective: While acknowledging the role of human factors, Realists have
been criticised for attributing too much influence to a judge’s personality in judicial
determinations.

 Contextual Limitations: The American Realists’ approach is context-specific and may not be
universally applicable, particularly in legal systems where social forces have played a smaller
role in shaping law. Scandinavian Jurists like Olivecrona have proposed more universally
applicable methods.

Contributions of Realist School of Jurisprudence

Despite its criticisms, Realist School of Jurisprudence has made significant contributions to
jurisprudence:

 Emphasis on Pragmatism: Legal Realists introduced a pragmatic approach to law that

emphasises the practical consequences of legal decisions.

 Challenge to Certainty: They challenged the notion of absolute legal certainty, encouraging a
more nuanced understanding of the law’s predictability.
  Comprehensive Examination: Legal Realists advocated for comprehensive examinations of
factors influencing legal decisions, aiming for more informed and fair judgments.

Conclusion

The Realist School of Jurisprudence, with its American and Scandinavian variants, represents a
pivotal movement in legal thought. Legal Realism challenges traditional legal theories by focusing on
the practical implications of law and the role of judges in shaping legal outcomes.

Notable jurists from Realist School of Jurisprudence, such as John Chipman Gray, Oliver Wendell
Holmes, Jr., Jerome N. Frank, Carl N. Llewellyn, Axel Hagerstorm, Karl Olivecrona, Alf Ross and A.V.
Lundstedt, have significantly contributed to the development of Realism, offering a fresh perspective
on the complex interplay between law, society and human nature.

Legal Realism’s recognition of the subjective elements in the legal system continues to influence
contemporary jurisprudential discourse and our understanding of how the law truly operates in the
real world.

Introduction

The word person has been derived from the Latin word persona which means mask wore by different
actors to exhibit different persons in a drama. But in modern days the scope of the word person
changed and it referred to the living person who are capable of having certain rights and duties.
Further the legal meaning of the word person changed and its scope was further exposed to include
various associations and corporates termed as juristic person. Legally persons are natural person and
jurist person natural person are living beings and juristic person are those who by virtue of law are
considered as person such as a body corporate registered under companies Act or any other law for
the time being in force, any association etc.

When law consider some one as a legal person certain rights and duties are enjoyed and imposed on
the person. Certain time it may happen that law may take certain rights back from the person. When
rights are enjoyed and duties are imposed the question arises is up to what extent the rights can be
enjoyed and what are the duties to abide by. When this question arises, the law has mostly in black
and white but the rights and duties of an unborn person is still grey. In this article we will discuss
what is the legal statues of an unborn person and their rights.

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 some of which are as follows:

In the Transfer of property Act property can be transfer to an unborn person via a trust

As per Hindu succession act interest in property can be created for an unborn person but vesting of
interest is only possible when that person is born alive.

In a HUF as per MIT Akshara Law, an unborn child will have an interest in coparcenary property.

Criminal Procedure states that if a female inmate sentenced to death is found to be pregnant, the
execution is postponed till the child has a chance to be born.
For instance, it can be said that an unborn persons are not legal persons but there are certain
exceptions to it and in certain instances and laws is considered as a person having certain rights.

Rights of an unborn persons

There are no proper statutes in India which define the rights of unborn person in India but there are
many Acts and laws which mention unborn persons and their rights. In such enactments unborn
persons are recognised as legal person by fiction and clearly mentions that the rights of unborn
persons will only be vested if he is born alive. For this reason, the state interfere in abortion matters
when unborn persons reache to certain viability stage

Section 312 to section 316 of the Indian penal code deal with thaw relating to abortion. The medical
termination of pregnancy act lays down various laws and procedure to be followed in order to get a
child aborted. The law clearly lays down the procedure and despite the choice of the women, makes
it mandatory that abortion had to be signed and agreed by a registered medical practitioner up till 12
weeks of pregnancy and between 12 to 20 weeks the registered medical practitioner has to approve
it. The laws does not take into account a large section of women in its purview despite the fact that
they may be in an utter need of such abortion and even this curtails women right to choose to have
or not to have a baby and aspects her to protect the rights of such unborn persons with whom she
does not share any string of emotional attachment. The women right to privacy also comes into
question when such laws are enforced on her.

Right of unborn persons under transfer of property act

Section 13 of the Transfer of property Act read as follows:

“Where, on a transfer of property, an interest therein is created for the benefit of a person not in
existence at the date of transfer, subject to a prior interest created by the same transfer, the interest
created for the benefit of such person shall not take effect, unless it extends to the whole of the
remaining interest of the transfer in the property.

This section gives affect to the general rule that property can be transfer in between living person,
and there can not be a direct transfer to a person who is not in existence or is unborn that’s why the
section uses the expression ‘’for the benefit’’ and not to unborn persons. It can be interpreted from
the section that at the time of the transfer the unborn person must be in the womb and mere
expectation of an unborn person in future will not give rise to the right.

Conclusion

There are many ambiguities in law when it comes to the right of an unborn person and there is still
great need to recognise such grey areas and formulate proper laws.

About Dead Person

Dead man is not a legal person. As soon as a man dies, he ceases to have a legal personality. Dead
men do not remain as bearers of rights and duties. It is said that they have laid down their rights and
duties with their death. Action personalis moritur cum persona– action dies with the death of a man.
With death personality comes to an end. A dead man ceases to have any legal right or bound by any
legal duty. Yet, law to some extent, recognises and takes account of the desires or intentions of a
deceased person. Law ensures a decent burial, it respects the wishes of the deceased regarding the
disposal of his property, protects his reputation and in some cases continues pending action
instituted by or against a person who is now deceased. The testaments of the dead are respected
and enforced by the law. This does not mean that the dead have a right to have their wills enforced.

Rights and Legal Status of a Dead Person

The will is enforced in the interest of the living legates to whom property is bequeathed. If the will
does not contain any disposition of property in favour of any human legatee, it will not be
enforceable. This shows that right to have a will enforced is not that of the testator but only that of
the living legates. The reputation of the dead is also protected by the law. A libel on dead persons
may be actionable in a court of law. This is, however, not recognition of any right in favour of tire
dead. The living relations of the deceased would be harmed by defamatory statements against him.
That is why such defamation is made actionable. It is obvious that the dead have no rights. That they
have no duties clear enough, for they are beyond the reach of the sanctions of law. So deceased
persons lose their personality with their lives.

Salmond points out three things in respect of which anxieties of living men extend beyond the period
of their deaths, of which law will take notice. They are men’s body; her reputation and his estate.[1]
Though the dead man’s corpse is the property of no one the law, however, seeks to ensure its decent
burial[2] or cremation.[3] In law, the dead are things, not persons. Being not punished after their
death, they are not entitled to any rights, though in following cases they have been given some
rights.

1) Right of reputation.

2) Right of will

3) Right of decent burial.

Salmond observes that generally speaking, the personality of a human being may be said to
commence with his birth and cease with his death. Therefore, dead men are no longer persons in the
eyes of the law. They cease to having rights since they cease to any interests nor do they have any
duties. A dead man’s corpse is not “property” in the eye of law. It cannot be disposed of by an
instrument. Earlier, it was held that a person cannot, during his life-time, make a will disposing of any
part or organ of his body but there has been a change in trend in modern times and today it is
perfectly legal to donate eyes or any part of one’s body for the progress of medical science and in the
interest of humanity.

Laws governing

Rights and Legal Status of a Dead Person in India

The criminal law provides that any imputation against a deceased person, if it harms the reputation
of that person of living, and is intended to hurt the feelings of his family or other near relatives, shall
be an offence of defamation under Section-499 of the Indian Penal Code.[4]

The reputation of dead man is to some extent protected by the law. The defamation against a dead
person is no doubt punishable under the criminal law but only when it affects the interests of his
relatives and near-ones who are living. The right so protected is in really not that of the dead man
but that of his living descendants.[5] It is true that dead persons are not recognized as legal persons
but the testamentary dispositions of the dead are carried out by law.

A person, can by his will make a valid trust for repairs and maintenance of the graveyard because it
amounts to a charitable or public trust but he cannot, by a direction in his will provide that certain
parts of his estate shall be permanently used for the maintenance of his own grave or tomb. Such a
direction would be void and unenforceable being against the rule of perpetuity. The law of
succession permits the desires[6]of the dead man to regulate the action of his successors. Whatever
gifted by the deceased for a charitable purpose, shall be enforceable by law and the testament to
that extent shall be valid.

Regarding the property of the dead man the law carries out the wishes of the deceased example, a
will made by him regarding the disposal of his property. This is done to protect the interest of those
who are living and who would get the benefit under the will. This is subject to the rule against
perpetuity as well as law of testamentary succession. Transfer of Property Act, Section 14
incorporates the rule against perpetuities, which forbids transfer of property for an indefinite time
thereby making it alienable. Section 14 of the Transfer of Property Act restrains the power of creating
future interests by providing in the rule against perpetuities that such interest must arise within
certain limits. The rule of perpetuity looks to the date at which the contingent interest will vest, if it
vests at all, and hold it to be void as “perpetuity if this date is too remote”.

And Section 1 and 4 of the Indian Succession Act, 1925 forbids the creation of a will whereby vesting
of property is postponed beyond the lifetime of one or more persons and the minority period of the
unborn person.

What is Corporate Personality?

Corporate personality in Jurisprudence provides a corporation with the status of a legal person
distinct from its shareholders. This concept was solidified in the case of Salomon v. Salomon & Co.
Ltd. (1897), where the House of Lords established that a corporation has a separate legal identity
from its shareholders. This means that the company can own property, enter into contracts and sue
or be sued in its own name.

For a corporate entity to be recognised as having corporate personality, three conditions must
typically be met. Firstly, there must be an organisation formed by individuals with a specific purpose.
Secondly, the entity must have different departments or organs that can carry out corporate
functions. Lastly, the organisation must have a ‘will’ as per legal fiction, meaning it can make
decisions and act in its own right.

One of the key benefits of corporate personality is that it shields shareholders from personal liability
for the company’s actions. Even if a shareholder owns a significant portion of the company’s shares,
they are not personally responsible for the company’s debts or other obligations. Similarly, the
company is not liable for the personal actions of its shareholders.

While shareholders are not agents or trustees of the company, they can collectively make decisions
that represent the company’s ‘will’ in general meetings. However, they cannot directly bind the
company through their individual actions outside of the company’s affairs.

The legal recognition of a corporation as a juristic person occurs upon its incorporation. Once
incorporated, the company has the same rights and obligations as any other legal person. This means
it can engage in activities such as opening bank accounts, entering contracts and being held
accountable for its actions in legal proceedings.

It is important to note that while corporations are considered legal persons, they do not possess all
the rights and liabilities of natural persons. For example, corporations cannot vote or hold public
office. However, they are capable of having rights and liabilities, just like natural persons, once they
are legally recognised as having corporate personality.
Privy Council in the landmark case of The Citizen’s Life Assurance Company v. Brown (1904), where
ruled that corporations can also be held accountable for their actions indicating malicious intent.
Thus, ‘artificial’, ‘juristic’ or ‘legal’ persons such as corporate entities and organisations or
associations of people are capable of having rights and liabilities just as any natural person, once
legally recognised.

Features of Corporate Personality in Jurisprudence

Corporate personality in Jurisprudence grants a corporation a unique legal status separate from its
members, imbuing it with certain distinct features:

 Artificial Personhood: Corporate personality bestows fictitious or artificial personhood upon

corporations, enabling them to operate independently from their shareholders. This allows
corporations to conduct business activities, such as financial transactions, in their own name.

 Rights and Obligations: Upon incorporation, a company acquires a separate legal personality,
distinct from its members and shareholders. This separate identity enables corporations to
possess their own rights and obligations as recognised legal entities.

 Independent Operations: Corporate personality enables companies to function

independently from their shareholders and members. This separation creates a distinct legal
identity, allowing corporations to enter into contracts, own property and engage in legal
proceedings in their own right.

 Collective Will: While corporations have their own legal personality, they require natural
persons to act as their agents or representatives. The collective will of the company is
determined by the natural persons forming it, such as its members and shareholders, who
express their decisions through general meetings and the use of a common seal.

Types of Corporate Personality

Corporate personalities are of two main types: Corporation Aggregate and Corporation Sole.

Corporation Aggregate

This type of corporate personality is more common and involves the association of several individuals
for a common purpose. Corporations aggregate are formed by a group of individuals, known as
members or shareholders, who come together to achieve specific objectives. Examples include
companies, partnerships and associations. In a corporation aggregate, the members collectively own
the corporation and decisions are typically made through voting in general meetings.

Corporation Sole

In contrast, a corporation sole is a less common form of corporate personality that involves a single
individual, such as a monarch, bishop or religious leader, who holds a corporate office. The individual
holds the office in a representative capacity and upon their death or resignation, the office passes to
their successor. Corporation sole is often found in religious institutions, where the officeholder
represents the continuity of the institution’s leadership.

Both types of corporate personality have distinct characteristics and serve different purposes.
Corporation aggregate allows for collective ownership and decision-making, while corporation sole
represents a continuity of leadership within a single individual. Understanding these types of
corporate personality is essential for comprehending the legal framework within which corporations
operate and the rights and obligations associated with each type.
Rights and Duties of Corporate Personality in Jurisprudence

In jurisprudence, corporate personality refers to the legal recognition of a corporation as a separate

legal entity from its owners, with its own rights, duties and liabilities. Understanding the rights and
duties of corporate personality is essential in corporate law and governance. Here are the key
aspects:

Rights of Corporate Personality

 Legal Capacity: Corporations have the legal capacity to enter into contracts, own property
and sue or be sued in their own name. This enables them to engage in various business
activities and transactions.

 Limited Liability: One of the primary benefits of corporate personality is limited liability.
Shareholders are typically not personally liable for the debts and obligations of the
corporation, protecting their personal assets.

 Perpetual Succession: A corporation has perpetual succession, meaning it can continue to

exist even if its shareholders or directors change. This allows for long-term planning and
continuity in business operations.

 Borrowing Powers: Corporations have the power to borrow money, issue bonds or
debentures and raise capital through various financial instruments. This enables them to
fund their operations and expansion.

 Ownership of Property: Corporations can own property, both tangible (such as buildings and
equipment) and intangible (such as intellectual property rights). This allows them to use and
benefit from assets in their business activities.

Duties of Corporate Personality

 Compliance with Laws: Corporations must comply with all relevant laws and regulations
governing their operations. This includes corporate governance, tax laws and industry-
specific regulations.

 Fiduciary Duties: Directors and officers of a corporation have fiduciary duties to act in the
best interests of the company and its shareholders. This includes duties of loyalty, care and
good faith.

 Accountability: Corporations are accountable to their shareholders, board of directors and

other stakeholders. They must maintain accurate financial records and disclose relevant
information to shareholders and regulators.

 Social Responsibility: There is a growing expectation for corporations to act responsibly

towards society and the environment. This includes ethical business practices, corporate
social responsibility initiatives and sustainability efforts.

 Respect for Corporate Form: It is essential for corporations to respect the separate legal
identity of the corporation and not misuse it for personal gain or to evade legal obligations.

Status of Corporate Personality in Jurisprudence

In jurisprudence, the status of corporate personality is well-established and widely recognised.

Corporations are considered legal persons with the capacity to enter into contracts, own property,
sue and be sued and engage in various other legal activities. This recognition allows corporations to
operate as separate entities from their shareholders, with their own rights, duties and liabilities.

The concept of corporate personality is rooted in common law and has been further developed
through statutory laws and judicial decisions. Courts generally uphold the principle of corporate
personality, treating corporations as distinct entities from their owners, directors and officers. This
separation is crucial for ensuring limited liability and providing a framework for corporate
governance.

However, there are instances where courts may pierce the corporate veil, disregarding the separate
legal personality of a corporation. This typically occurs when there is evidence of fraud, wrongdoing
or an abuse of the corporate form to evade legal obligations. Overall, the status of corporate
personality in jurisprudence is well-established, providing a solid legal foundation for the operation
of corporations.

Conclusion

Corporate personality is a fundamental concept in jurisprudence that underpins the operation of

corporations. It provides a framework for corporate governance, protects shareholders from
personal liability and promotes investment and economic growth. While the concept is well-
established, it is subject to evolving legal principles and judicial interpretations, reflecting the
changing nature of corporate law and practice.

Theories of Corporate Personalities

Fiction Theory

As per the fiction theory, a corporation exists only as an outcome of fiction and metaphor. So the
personality that is attached to these corporations is done purely by legal fiction.

Concession Theory

This is similar to the fiction theory. However, it states that the legal entity has been given a corporate
personality or a legal existence by the functions of the State. So as per this theory, only the State can
endow legal personalities, not the law. t says that any legal personality can take birth from law itself.
It is concession or grant from the side of law that legal personality is created and recognized.

Realist Theory

As per the realist theory, there is really no distinction between a natural person and an artificial
person. So a corporate entity is as much a person as a natural person. So the corporation does not
owe its existence to the state or the law. It just exists in reality. This is not a very practical theory as it
does not apply in the real world. this theory says that corporation has a real personality not a
fictitious. Gierke was the exponent of this theory and tried to criticise the fiction theory. His opinion
was that, corporate has a real & recognized personality and it is not created by law. This theory also
known as sociological theory because in corporate aggregate there is a collective will of different
members and individual will is different from collective will.

Bracket Theory

This is one of the more famous and feasible theories of corporate personality. The bracket theory is
also known as the symbolist theory which states that a corporation is created only by its members
and its agents.
The Ownership Theory:-

This is another theory of corporate personality. Bzinz, Bekker and Demelius were those who have
developed this theory and Planiol had elaborated it. This theory states that human beings are
subjected to legal rights not corporations. Furthermore it says that juristic person or corporation is
not a person anyway. These are subject less property which is a creation of law and this fictitious
personality are there only for possessing property in common. Such personalities are only form of
ownership.

Hohfeld’s Analysis of Legal Rights

Meaning of Legal Rights

A right is an interest protected and enforced by law. In law it is mostly applied to property in its
restricted sense, but it is often used to designate power, prerogative, and privilege. The words ‘right’
or ‘privilege’ have a variety of meanings, like ‘a legal claim to do’, ‘legal power’, ‘authority,’ ‘immunity
granted by authority’. A man has several rights over both tangible and intangible objects. He also
possesses rights as a person.

Rights can be divided into 4 different kinds:

 Rights in the strict sense

 Immunities

 Liberties

 Powers

The correlatives of each of these rights are:

 Duties

 No-Rights

 Liabilities

 Disabilities

About Hohfeld’s Analysis of Legal Rights

Professor Wesley Newcomb Hohfeld, a graduate from University of California gave the concept of
analyzing legal rights. Professor Hohfeld has contributed mostly to the field of Jurisprudence. He
simplified the term right by analyzing several core concepts in law.

Professor Hohfeld has proposed that the different meanings of the term right are often expressed in
a single sentence. This uncertainty in the language indicates a lack of precision in thought and the
conclusions that are derived in turn. His broke the meaning of rights into eight unique concepts.
These terms are defined with respect to one another to eliminate the presence of any ambiguity. The
four pairs of opposites and correlatives exist as mentioned below.

Legal Rights in Strict Sense

Each and every right has a corresponding duty. When a right is invaded, a duty is violated. This
implies that if A enjoys a right against B, then B is duty bound to respect this right.
Positive and Negative rights– A positive act relates to a positive right whereas any abstinence from it
would constitute a negative right.

‘Rights in rem’ and ‘Rights in personam’– Both these terms have been derived from civil law. A ‘right
in rem’ is a right that exists against the entire world whereas a ‘right in personam’ is against a specific
individual. ‘Rights in rem’ are considered as negative rights whereas ‘rights in personam’ are usually
positive in nature.

Proprietary and Personal rights– The former is concerned with value while the latter is not. Value, in
the case of proprietary rights, is derived from estate, property etc and personal rights are associated
with status, reputation.

Hohfeld’s Analysis of Legal Rights

Liberty and No-Rights

Liberty is defined as the exercise of a right without the interference of law. By adding all the rights
and duties across relationships, the degree of liberty can be determined. A perfect liberty is one
where no one has any exclusive right to restrain the occurrence of a given act.

Liberty does not mean interference with others like liberty to free speech on public affairs does not
grant a person the right to publish defamation. Likewise one has the liberty to self-defense against
violence but no right is conferred to engage in revenge against the person who inflicted the injury.

Liberty is exercise of unrestrained activity permitted under law. The primary difference between
liberty and rights in strict sense is that things we do for ourselves are termed as liberty whereas
things which others do in our respect are classified as rights in strict sense.

No-right is the correlative of liberty. It means absence of a right. The term ‘no-right’ basically implies
that a certain person does not have a right against another individual in a particular respect.

Another example in this context is that when an alien who has no duty not to enter a foreign country
i.e. he has liberty to enter. The authorities have a no-right against him i.e. they may not have any
right in the strict sense though they may still possess a liberty to refrain him from entering. [i]

Power and Liabilities

Another set of legal rights come in the form of powers. Example- power to make a will, the power to
take legal action against someone, the power to sell a property if the mortgagee does not receive the
money from the mortgagor etc. Power determines legal relations and gives rise to either ‘authority’
or ‘capacity’. ‘Authority’ is the exertion of power over others whereas ‘capacity’ is power exerted
over oneself.

Powers and rights in the strict sense are different because in the latter case, a corresponding duty
always exists which is absent in the former case. Example- right to create a will does not result in a
corresponding obligation for someone else.

Private or Public powers– Private powers are exercised by individuals. Public powers lie with state
agencies or instruments that carry out public functions. Example- powers exercised by the judiciary,
legislature and executive.

Liability is defined as the alteration of a person’s legal rights by the person exercising power.
Examples- the determination of a lease by reentry of the landlord places a liability on the tenant, one
against whom a judgement has been passed is liable to have a decree of execution etc.
Liability is not concerned with the fruitful or unfruitful result in any given case. For instance, a person
committing a tort is duty bound to pay compensation and is liable for an action to be brought against
him/her as well. However, someone who is not a tortfeasor is not under any duty to pay
compensation but is equally liable for an action to be instituted, that in all probability will fail, as no
grounds exist.

Liability can also be seen as an advantage or benefit. A person who professes to transfer his property
as a gift through the exercise of power, the person entitled to the gift has a liability to receive it. [ii]

Immunities and Disabilities

Another category of rights is immunity from legal power. The relationship between immunity and
power is identical to that of liberty and right in the strict sense. Immunity implies a complete lack of
liability.

Disability, the correlative of immunity, is better known as inability and signifies the absence of power.
The legal maxim ‘Nemo dat quod non habet’ means that no person can transfer a better title in
property than what is possessed by oneself, is an expression of disability.[iii]

Conclusion of Hohfeld’s Analysis of Legal Rights

In this article some of the most important principles of Hohfeld’s analysis of rights and his work is the
essential tool for gaining not only a conceptual but a practical understanding of the nature of rights.
Hohfeld’s work consists of a deep analysis by which he sought to reflect the ideas that people hold
about rights. Although analytical in its nature, Hohfeld’s analysis is of fundamental practical value.

Historical Context of Sovereignty

The concept of sovereignty has ancient roots, dating back to the Roman Empire. Roman jurists
introduced the “Theory of Imperium,” positing that law originates from the will of the ruler or
prince. This notion laid the groundwork for later theories that aligned sovereignty with the
centralisation of power. Over time, thinkers like Thomas Hobbes and Jeremy Bentham refined this
idea, associating sovereignty with lawmaking and governance.

John Austin (1790–1859), a British jurist, synthesised these ideas into a formal theory of
sovereignty that became foundational to the analytical school of law. His interpretation marked a
shift from earlier theories, as he emphasised a clear separation between law and morality, a hallmark
of legal positivism.

Who Advocated the Monistic Theory of Sovereignty?

John Austin is the jurist most closely associated with the monistic theory of sovereignty, which
asserts that sovereignty is indivisible and absolute. Austin’s theory positions the sovereign as the
single source of all legal authority, rejecting any division or fragmentation of power.

John Austin: The Architect of Analytical Jurisprudence

John Austin was born in 1790 in the United Kingdom and is widely regarded as the father of the
analytical school of law. A former soldier and barrister, Austin transitioned to academia and
jurisprudence, publishing his seminal work, The Province of Jurisprudence Determined. This book laid
out his theory of sovereignty and legal positivism, which would influence generations of jurists and
legal theorists.
Austin’s emphasis on the separation of law and morality was revolutionary. He argued that laws
should be analysed as they exist (de facto) rather than as they ought to be (de jure). This objectivity
defined the analytical school of law, which he co-founded with Jeremy Bentham.

Austin’s Legal Theory of Sovereignty: Core Principles

Austin’s theory of sovereignty revolves around three essential elements: command, sovereign, and
sanction. Below, we delve into these components and their implications.

Command

According to Austin, a law is essentially a command issued by a sovereign to their subjects.

Commands are expressions of the sovereign’s will and must be obeyed. They are general in nature
and backed by sanctions for non-compliance.

 Distinction Between Laws and Commands: Not all commands are laws. For example, orders
given by a superior on a parade ground are commands but not laws. Laws are distinguished
by their generality and enforceability.

 Criticism:

o Austin’s emphasis on commands as the foundation of law disregards the democratic

principle that laws emerge from collective deliberation rather than unilateral
decisions.

o His theory also neglects the role of judicial precedents and statutory instruments.

Sovereign

Austin defines the sovereign as a determinate human superior who receives habitual obedience
from the people within a society but is not subject to any higher authority. The sovereign can be an
individual or a body of individuals (e.g., a monarch, legislature, or government).

 Characteristics of the Sovereign:

o Supreme authority: The sovereign has ultimate power over lawmaking.

o Indivisibility: Sovereign power cannot be divided or shared.

o Independence: The sovereign is not accountable to external entities.

 Criticism:

o In democratic and federal systems, power is often distributed among various organs
of government, contradicting Austin’s view of indivisible sovereignty.

o The idea that the sovereign is not bound by external laws or moral considerations is
increasingly outdated in a globalised world.

Sanction

Sanctions are the instruments of coercion that enforce the sovereign’s commands. Austin’s theory
posits that the fear of sanctions compels individuals to obey laws.

Autocratic Implications:
  Austin’s reliance on sanctions as a motivator for obedience suggests a coercive system where
compliance is achieved through fear rather than mutual respect or voluntary adherence.

 This view overlooks the role of morality, responsibility, and social norms in fostering legal
compliance.

Key Features of the Sovereign Theory

Austin’s theory of sovereignty is characterised by several distinctive features:

1. Indivisibility: Sovereignty cannot be divided among multiple authorities or transferred to

external powers. Example: Austin’s model is incompatible with federal systems like India or
the United States, where power is shared among the central and state governments.

2. Territorial Scope: Sovereignty is geographically bound, applying only within a defined

territory.

3. Legal Positivism: Emphasises observable legal systems rather than moral or ethical
considerations. Distinguishes between “laws properly so called” (formal laws) and “laws
improperly so called” (customs or traditions).

4. Separation of Law and Morality: Laws derive their validity from the sovereign’s command,
not from adherence to moral principles.

Relevance of the Theory of Sovereignty

Historical Significance

Austin’s theory was developed during a period of centralised governance in England. It provided a
framework for understanding sovereignty in nation-states with strong governments.

Modern Applications

 Legal and Political Structures: The legal theory of sovereignty continues to inform
discussions on governance, particularly in centralised systems.

 Limitations in the Modern Era:

o Globalisation: The rise of multinational corporations, international organisations,

and cross-border issues (e.g., climate change, human rights) challenges the notion of
absolute territorial sovereignty.

o Democratic Governance: In democracies, sovereignty is distributed among the

people, elected representatives, and institutions, contradicting Austin’s monistic
view.

Criticisms of the Sovereign Theory

 Disregard for Morality: By separating law from morality, Austin’s theory fails to account for
the ethical and social dimensions of governance.

 Incompatibility with Democracy: Austin’s concept of an indivisible, absolute sovereign

conflict with democratic principles like the division of powers and accountability.

 Oversimplification: Treats law and morality as entirely separate entities, overlooking their
interplay in promoting justice and fairness.
  Global Challenges: Modern issues like transnational crime and environmental degradation
transcend territorial boundaries, challenging Austin’s territorial view of sovereignty.

 Obsolescence: The theory does not address shared or delegated authority, which is common
in modern governance structures.

Implications of Austin’s Theory

Despite its limitations, Austin’s theory offers several valuable insights:

1. Foundation of Legal Positivism: It established a framework for analysing laws objectively,

separate from moral or ethical considerations.

2. Analysis of Sovereign Authority: Provides a basis for understanding the source of legal
authority in centralised states.

3. Critique of Natural Law: Challenges the notion that laws must be morally justifiable,
emphasising their functional and structural aspects instead.

Conclusion

John Austin’s theory of sovereignty is a landmark in legal and political theory, offering a systematic
approach to understanding the nature of law and governance. As the architect of the monistic
theory of sovereignty, Austin emphasised the indivisibility, absoluteness, and territoriality of
sovereign power. While his legal theory of sovereignty has been criticised for its rigidity and
detachment from modern political realities, it remains a foundational framework for legal positivism
and analytical jurisprudence.

Today, Austin’s theory is best understood as a historical artifact—valuable for its clarity and simplicity
but requiring significant adaptation to address the complexities of modern governance, globalisation,
and democratic pluralism. Ultimately, Austin’s contributions to the theory of sovereignty continue to
provoke debate and inspire new interpretations, ensuring their place in the ongoing evolution of
legal thought.

Meaning of Possession of Property

The dictionary meaning of the term ‘Possession’ implies that one has physical control over an object
or thing. Generally, it expresses the closest and immediate relation of the fact that can exist between
a thing and the person possessing it. However, in the legal terms, possession is not only limited to
physical control rather extends to include an intention to exercise that physical control. For
possession to exist, there must be an exclusion of other individuals from its enjoyment. [1]

Nature and Concept of Possession of Property

Possession is prime evidence of transferring ownership. The term ‘possession’ is ordinarily used in
both civil law and criminal law. In fact, both laws are based on the concept of possession, for
instance, under civil laws, possession is used in the form of trespassing in the law of torts, possession
of goods in contract laws and in the transfer of property in property law. Whereas, in criminal laws,
theft is the most common example of possession as it implies dishonestly taking away any movable
property out of the possession of any person without that person’s consent.

Elements of Possession: Corpus Possidendi and Animus Possidendi are two elements of possession
which have been recognized in English, Roman and Indian laws.
1) Corpus Possidendi: Physical control over the possessed object

2) Animus Possidendi: Intention or will to exercise the power.[2]

Theories of Possession of Property

In the words of Sir Fredrick Pollock, Possession is expressed as “In common speech a man is said to
possess or to be in possession of anything of which he has the apparent control or form the use of
which he has the apparent power of excluding others”.

John Salmond stated possession as “Possession is the continuing exercise of a claim to the exclusive
use of an object.” He totally rejected the two concepts of possession, i.e. possession in fact and
possession in law and reiterated one as ‘possession in truth and in fact’. Hence for Salmond,
possession is both corpus as well as animus.

Savigny’s theory was the first theory on the concept named possession. According to him, there are
two elements in possession that are corpus possessionis and animus domini, where the former
implies effective control and latter means the pure intention to hold as the owner. He further
classifies corpus possessionis into two parts, one being the initiation of possession and the other is
retention of possession. In the words of Savigny, “I must take him by bridal or ride upon him or have
him in my immediate presence, so that I can prevent all others from interfering with me. And since
detentor and possessor have same physical relation to the res, the difference between them must be
found in the mental element, i.e. animus domini. He clearly focuses physical control and intention for
the possession to constitute.

Holme’s theory: In the words of Holmes, “To gain possession, then a man must stand in a certain
physical relation to the object and to the rest of the world, and must have a certain intent. These
relations and this intent are the facts of which who are in search.” He further suggested that the
element namely, ‘animus domini’ is not required under the English law, and has the intent to exclude
others. [3]

Possession in Law and Possession in Fact

Possession in fact refers to physical or actual possession. It basically means a physical relation to a
thing and one has actual control of it. For the actual control to exist, there must be a relation of the
possessor with another person and simultaneously relation of the person to the thing so possessed.
Possession in fact is also known as De facto possession and in roman language, it is read as naturalis
possession.

One has to keep in mind the fact that there are certain things on which physical control is impossible
like sun, stars, moon, etc. Also, it is not necessary that the physical control over a thing will be
continuous which means even when an individual loses its actual control, the physical control will
not be put to an end.

Possession in law implies the possession in the eye of law. Possession in law is recognized and at the
same protected by law. Possession in law is also known as De Jure possession and in roman language,
it is read as possession civilic. The law mainly protects for two major reasons that are by conferring
legal rights on the possessor and by punishing the individuals interfering the possession. Three
causes between possession in fact and possession in law are as follows:

1. Possession in fact and Possession in law

2. Possession in fact but not in law

 3. Possession in law but not in fact

Kinds of Possession of Property

1) Corporeal Possession: Those things/objects that constitute physical or material existence and
have a direct relationship with that thing, are referred to as incorporeal possession. For eg. Pen, car,
house, book etc.

2) Incorporeal Possession: Those things/objects that does not constitute any physical or material
existence and cannot be felt by senses are referred to as incorporeal possession. For eg, Patent,
Goodwill, Trademark etc.

3) De facto Possession: It is also known as Possession in fact. Such possession exists whenever an
individual is in immediate possession of the object/thing and in the exclusion of others. This
possession is not lawfully recognized but it exists in reality.

4) De jure Possession: It is also known as Possession in law or Juridical Possession. Such possession
exists whenever an individual claims the object/thing to be his own through the legal way by
occupying it without having any argument as to his legal right of possessing that thing. This
possession is lawfully recognized irrespective of the fact of whether it exists in reality or not.

5) Mediate Possession:It is also called Indirect Possession. Mediate Possession is one where the
property/thing is possessed through a mediator which can be either friend, servant or any agent. In
this case, there is a lesser degree of physical control with the possessor as the possession over
object/ thing is with another person.

6) Immediate Possession:It is also called Direct Possession. Immediate Possession is one where the
property/thing is possessed by the possessor himself. In this case, there is a higher degree of physical
control with the possessor as the possession over object/ thing is with the same person.

7) Constructive Possession: Wright and Pollock defined Constructive Possession as the one which
arises only by construction of law. It is not possession in fact but it certainly is possession in law.

8) Adverse Possession: It refers to holding of the land/immovable property of any other party on his
own behalf. When Adverse Possession continues without any hindrance or obstruction for a certain
period of time, the person holding the property can claim for it thereby subsequently extinguishing
the true owners’ rights. [4]

Possession is the Ninth Point of the Law – Explained

The maxim "Possession is the ninth point of the law" suggests that possession is given significant
weight in legal systems—almost equivalent to ownership. The phrase originated in old English
common law, implying that if a person possesses something, they have a strong claim over it, and the
burden lies on others to disprove this claim.

Possession, in law, refers to the physical control or occupation of a thing with the intention to
exercise such control. It is not the same as ownership, which is the absolute legal right to a property
or object. However, possession often creates a presumption of ownership, especially in the absence
of a stronger title.

Why is Possession So Important in Law?

1. Presumption of Ownership: The law presumes that the person in possession is the owner
until proven otherwise.
 2. Protection by Law: Even a wrongful possessor (like a trespasser) is protected against anyone
except the true owner.

3. Ease of Proof: Possession is easier to prove than ownership, making it practically more
significant in disputes.

4. Basis for Legal Rights: Many rights (like the right to sue for trespass) arise from possession,
not ownership.

Salmond defines possession as "the continuing exercise of a claim to the exclusive use of an object."

Case Law Example:

Krishna Ram Mahale v. Shobha Venkat Rao (1989) – The Supreme Court of India held that even a
person in unlawful possession of premises is entitled to be protected from illegal dispossession.

Comparison Table: Possession vs Ownership

Basis Possession Ownership

Legal right and title over a property or

Meaning Physical control over a property or object
object

Strongly protected, even against owners

Legal Recognition Absolutely protected; gives full rights
(in some cases)

Easier to prove – through physical control Needs legal documentation, title

Proof Requirement
or use deeds

Absolute – right to use, sell, gift, or

Rights Conferred Limited – right to use, exclude others
destroy

Cannot be transferred alone, unless linked Can be fully transferred through legal
Transferability
to ownership modes

Creation of Rights Can create rights like tenancy, bailment Creates all forms of proprietary rights

Permanent unless transferred or

Duration Can be temporary or short-term
relinquished

Protection by Law Protected against third-party interference Protected against all interference

Possession Ownership doesn’t necessarily mean

May create presumption of ownership
Presumes possession

Conclusion

The legal maxim underscores that possession holds substantial value and protection in law, often
being almost as strong as ownership in practical situations. This strong emphasis ensures the
stability of property relations and reduces conflict by acknowledging visible control and use.
However, while possession gives rise to presumptions, only ownership gives full legal rights and
title. Thus, though possession is not ownership, it is nine-tenths of the law because of the immense
legal weight it carries.

Introduction

The maxim "Possession is the ninth point of the law" emphasizes that possession, while not
ownership in itself, carries strong legal presumptions and protections. Historically rooted in common
law, it suggests that possession is so significant that it can override ownership claims unless proven
otherwise.

In Indian law, Section 110 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 110, Indian
Evidence Act, 1872) solidifies this principle by creating a presumption in favor of the possessor.

Section 110 – Presumption of Ownership from Possession

Text of Section 110, Bharatiya Sakshya Adhiniyam, 2023:

“When a person is in possession of any property, the burden of proving that he is not the owner is on
the person who affirms that he is not the owner.”

Legal Implication:

This section implies that:

 The person in possession is presumed to be the owner.

 Anyone who disputes this must provide evidence to prove otherwise.

 This legal presumption supports the practical and evidentiary value of possession.

Case Example:
In Ismail v. Hanif (AIR 1972 All 158), the court held that mere possession without title gives rise to a
presumption of ownership unless rebutted.

Comparison Table: Possession vs Ownership

Basis Possession Ownership

Legal right and title over a property

Meaning Physical control over a property or object
or object

Strongly protected, especially under

Legal Recognition Absolutely protected; gives full rights
Section 110

Proof Needs legal documentation, title

Easier to prove – physical presence or use
Requirement deeds

Absolute – right to use, sell, gift, or

Rights Conferred Limited – right to use, exclude others
destroy

Cannot be transferred alone, unless linked Can be fully transferred through legal
Transferability
to ownership modes
Basis Possession Ownership

Creation of Rights Can create rights like tenancy, bailment Creates all forms of proprietary rights

Permanent unless transferred or

Duration Can be temporary or short-term
relinquished

Protection by Law Protected against third-party interference Protected against all interference

Presumption Rule Section 110 presumes possessor as owner Must be legally established

Conclusion

The legal maxim and Section 110 together reflect the practical necessity of upholding possession as
a strong legal claim, especially in the absence of contrary ownership evidence. This is essential for
maintaining public order, resolving property disputes efficiently, and providing protection even to
possessors without formal title.

Possession, while not absolute, serves as a gateway to ownership rights in the eyes of law, unless
successfully rebutted. Hence, “possession is the ninth point of the law” not just proverbially but
statutorily in Indian evidence law.

Introduction

The legal maxim “Possession is the ninth point of the law” is a profound expression highlighting the
immense value and weightage that legal systems assign to possession. It implies that possession
amounts to nine-tenths of the law, leaving only one-tenth for ownership and other legal aspects.
While ownership is an absolute right over property, possession reflects physical control combined
with the intention to hold, and the law presumes the possessor to be the owner unless contrary
evidence is presented. This principle is codified under Section 110 of the Bharatiya Sakshya
Adhiniyam, 2023, making possession not just a factual matter but a legally recognized state with its
own set of rights and protections.

Understanding the Concept of Possession

Possession refers to the physical control or occupation of a thing, coupled with the intention to
possess (animus possidendi). It has both factual and legal elements:

 Corpus Possessionis: Physical control over the object.

 Animus Possidendi: Intention to hold the object as one’s own.

According to jurist Salmond, possession is “the continuing exercise of a claim to the exclusive use of
an object.” It reflects the relationship between a person and an object which is recognized and
protected by law.

Ownership vs Possession
Ownership, on the other hand, is the ultimate legal title to a property. It includes the rights to
possess, use, enjoy, transfer, and dispose of the property. While ownership is superior in hierarchy,
possession often functions as a preliminary or presumptive proof of ownership.

In everyday practice and legal disputes, the person in possession enjoys substantial rights, often
more tangible and defensible than the abstract concept of ownership, especially where ownership is
contested or unproven.

Section 110 – Bharatiya Sakshya Adhiniyam, 2023

This statutory provision underlines the practical importance of possession:

“When a person is in possession of any property, the burden of proving that he is not the owner is
on the person who affirms that he is not the owner.”

Legal Implications:

 A person in peaceful possession is presumed to be the rightful owner.

 The person challenging possession must discharge the burden of proof.

 This protects the possessor from wrongful claims or illegal dispossession.

Thus, possession is not just a matter of fact but a source of evidentiary advantage and legal
presumptions, turning it into a formidable legal right in its own domain.

Judicial Interpretation and Case Laws

1. Krishna Ram Mahale v. Shobha Venkat Rao (1989)

The Supreme Court emphasized that even unlawful possession cannot be disturbed without
due process of law. This affirmed the legal protection offered to possession, irrespective of
the legitimacy of title.

2. Ismail v. Hanif (AIR 1972 All 158)

It was held that possession, even if without a title, gives rise to a presumption of ownership
under Section 110. The burden of proof lies on the person disputing such ownership.

3. M.C. Chockalingam v. Mangilal (1974 AIR 104)

The Court stated that possession in law is a substantive right and the owner cannot
dispossess a possessor without legal process.

4. K.K. Verma v. Union of India (1954)

The Court recognized that possession, even by a tenant or licensee, is protected by law and
can be defended even against the true owner if due process is not followed.

These judgments collectively demonstrate how the courts strongly uphold the principle that
possession is more than just physical control—it is legally enforceable and protected.

Philosophical and Jurisprudential Views

  Savigny’s Theory of Possession: Emphasized both physical power (corpus) and will (animus)
as essential.

 Ihering’s Theory: Focused on the legal protection and social function of possession.

 Austin: Distinguished between possession as a fact and ownership as a right, but

acknowledged possession’s legal value.

From these perspectives, it is evident that possession serves not only a protective function but also
aids in the administration of justice by ensuring stability and predictability in property relations.

Comparison Table: Possession vs Ownership

Basis Possession Ownership

Physical control over a property or Legal title and full right over the
Meaning
object property

Protected under Section 110; presumed

Legal Status Absolute and legally enforceable right
ownership

Proof Easier to prove – through physical

Requires title deeds or documents
Requirement control or use

Transferability Cannot be transferred independently Can be transferred by will, sale, gift, etc.

Usually permanent until legally

Duration May be temporary or periodic
transferred

Strong legal shield, even against owner Protected by law but requires legal
Legal Protection
(if unlawful) process

Gives rise to rights like bailment, Enables complete alienation and

Creation of Rights
tenancy, etc. proprietary rights

Section 110 presumes possessor as Does not automatically include

Presumption Rule
owner possession

Why is Possession Given Such Importance?

1. Preservation of Public Order: Prevents self-help and vigilante justice.

2. Judicial Economy: Resolving disputes based on possession reduces the burden of proving
ownership in every case.

3. Certainty and Security: People can rely on visible control as an indication of rights.

4. Encouragement of Productive Use: The law encourages people to make use of land/property
and rewards actual control.

Conclusion
The legal system upholds possession not merely as a fact but as a right in itself, deserving legal
recognition and protection. The maxim “Possession is the ninth point of the law” is not just a
rhetorical phrase—it represents a foundational legal doctrine that safeguards property interests and
ensures orderly dispute resolution.

By recognizing possession through Section 110, Indian law places significant burden on those who
challenge the rights of the possessor, thus making possession a strong presumptive title in itself.
While it may not be conclusive of ownership, its evidentiary and practical value cannot be
underestimated. Hence, possession remains a powerful legal claim—rightly called the “ninth point
of the law.”