JURISPRUDENCE NOTES

*JURISPRUDENCE – CONCEPT AND SCHOOLS OF LAW

1. Meaning and nature of ‘Jurisprudence’

2. Purpose and value of Jurisprudence
3. Schools of Jurisprudence: Natural law, Imperative
Theory,Legal Realism, Historical School,
Sociological School.

*Definition and Meaning of Jurisprudence:

Jurisprudence is the study of the Theory and Philosophy of
Law. This article focuses on information concerning the
subject. There are several ideas with regards to the
meaning of jurisprudence and its nature.
The term ‘jurisprudence’ has been derived from the Latin
term ‘jurisprudentia’ which literally translates to
‘knowledge of law’ or ‘skill in law’. The Roman
civilization, which is popularly known as the bedrock of all
human civilizations in the world, started to question the
meaning and nature of law. Ulpian defined law as the
“knowledge of things divine and human”. According to
him, the law is the science of right and wrong. Several
jurists in Europe began to deliberate upon the meaning of
the law. Jeremy Bentham, the Father of

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Jurisprudence, stated that the “science of jurisprudence”
has nothing to do with ideas of good and bad. His disciple,
Austin, defined jurisprudence in the following words,
“Science of Jurisprudence is concerned with Positive Laws
that is laws strictly so-called. It has nothing to do with the
goodness or badness of law.” According to him, laws are
commands made by the sovereign and their nonobedience
leads to imposition of sanctions. He termed such laws as
positive law and stated that the main subject matter of
jurisprudence is the study of positive laws. According to
Holland, “Jurisprudence means the formal science of
positive laws. It is an analytical science rather than a
material science.” Keeton defined jurisprudence as, “the
study and systematic arrangement of the general
principles of law.”
Jurisprudence is the study of the Theory and
Philosophy of Law. The subject, in its entirety, differs
from other social sciences. There are several ideas with
regards to the meaning of jurisprudence and its nature.
This makes it difficult to define. Each country has its own
idea of jurisprudence shaped by the social and political
conditions in which the development of law took place in
that region. Modern jurisprudence is tied to sociology on
one end and philosophy on the other. The ideas of
jurisprudence that are popular in major legal systems
throughout the world today have their origins in the West.

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*Evolution of Jurisprudence:
Jurisprudence originated in the Roman civilization with
the Romans questioning the meaning and nature of law. It
was quite limited since the concepts of law, morals and
justice were confused with each other. References are also
made to the works of ancient Greek philosophers such as
Homer, Socrates, Plato, and Aristotle. With the fall of the
Roman Empire, the ideas of Roman and Greek
jurisprudence disappeared, and the Christian State
emerged. Soon, the authority of the church over the state
was challenged by the reformist and ideas of secularism
emerged. Many theories were proposed with regards to
the evolution and nature of ‘state’ by philosophers th like
Hugo Grotius, John Locke, Rousseau, and Blackstone. The
Age of Reason in the 17 Century led to the formation of
ideas of collectivism and social welfare. Slowly, the idea of
positive law and positivistic approach gained popularity
whereby the boundaries of the law were demarcated, and
its scope was limited.

*Nature of Jurisprudence:
Law regulates significant aspects of human life. In simple
terms, law is a set of regulations which are formulated by
the state and are binding upon its subjects. Jurisprudence
is the science of law. It has been described as the
“grammar of law”. To effectively interpret the law, it is

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essential to understand its origin, nature and meaning. Not
only interpretation, but even the legislative process
requires legislators to keep several factors in mind to
ensure that the law that is made is effectively enforced and
followed by all. Jurisprudence studies the law to facilitate
better legislation as well as interpretation. In doing so, it
uses the wisdom provided by other social sciences.
According to Paton, modern jurisprudence is mostly based
on social sciences and philosophy since it examines the
historical aspects of law to address the chaos created by
conflicting legal systems.
Describing jurisprudence as a “lawyer’s extraversion”,
Julius Stone is of the opinion that the objective of
jurisprudence is to view and examine law from the eyes of
disciplines other than law. Roscoe Pound states that the
subjects of jurisprudence, ethics, economics, politics, and
sociology might be quite distinct at the core, however, at a
certain point they overlap with each other. He further
adds on that it is impossible to understand their respective
cores without studying this overlapping with other social
sciences. According to him, all social sciences must
especially cowork with jurisprudence.

*Purpose and Value of Jurisprudence:

The purpose of jurisprudence is to study the law and legal
concepts and analyze the same to facilitate better
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understanding of legal complexities. Therefore, the
theories of jurisprudence are quite useful in solving
complex legal problems in the practical world. The various
studies and analysis of the legal concepts help a legal
professional in sharpening his legal acumen. The subject
has immense academic value. One of the most important
features of jurisprudence is its relationship with other
social sciences such as sociology, political science, ethics,
etc. Therefore, research in the field of jurisprudence yields
great number of social benefits. Moreover, jurisprudential
concepts make way for sociological perspectives in law,
thereby preventing it from being reduced to rigid
formalism. Jurisprudence is known as the “grammar of
law”. It helps in the effective expression and application of
legal concepts to real-life legal problems. It greatly helps in
the interpretation of law and determination of legislative
intent. It stresses upon the importance of considering
present social needs over the ideas of the past while
dealing with legal problems.
Jurisprudence is also known as the “eye of law”. The
human eye senses the light reflected from objects to make
them visible. Similarly, jurisprudence throws light on
several fundamental legal concepts to facilitate their
effective application in deliberation of legal problems.
*Schools of Jurisprudence:
*Natural School of Law:

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Natural law thinking is an important tool in political and
legal ideology in modern times. The term ‘natural law’
essentially refers to the legal system laid down in nature
since the dawn of life on the planet. Unlike positive law,
natural law does not require a “politically superior”
authority to formulate laws. Natural rights are conferred
and protected by God himself.
Lord Llyod describes natural law as a mere law of
selfpreservation or an operative law of nature that
constrains a man to behave in a certain way.
Natural law has helped in the transformation of the old
civil law of Romans. It has validated the idea of
international law. It has been used as a weapon in the fight
against absolutism. At different times, the natural law
school has been put to different uses.
The Greeks are said to have laid the foundations of the
natural law school. Heraclitus observed a certain rhythm
in events and termed it as “destiny, order, and reason of
the world.” With this, he laid down the basis of natural
law. Nature, according to the Greeks, refers to a certain
order in things. They identified the relation between such
an order and law. This thinking formed the basis for the
Greek school of enlightenment in the 5th century B.C.
It went on to dominate the philosophical thinking of those
times. Socrates identified that particular element of
natural law which calls for adherence to positive law.

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However, he argued that natural law does not demand
blind adherence to positive law.
*Analytical school:
Analytical school is also known as the Austinian school
since this approach is established by John Austin. It is also
called as an imperative school because it treats law as
the command of the sovereign. Dias terms this approach
as “Positivism” as the subject-matter of the school is
positive law. Jeremy Bentham can be said to be the
founder of the Analytical school. Bentham’s concept of law
is an imperative one for which he himself preferred the
term “mandate.”
The analytical school gained prominence in the nineteenth
century. The distinctive feature of eighteenth-century
juristic thought was Reason. Individualism became the
manifestation of the cult of reason. Writers like Descartes,
Locke, Rousseau, Kant advocated Reason as the last guide
and judge in everything.
Austin built on the foundation of expository jurisprudence
laid by Bentham and did not concern himself with
extralegal norms. He distinguished between the science of
legislation and law from morals.
To Austin, jurisprudence meant the formal analysis of legal
conceptions. He divides jurisprudence into general
jurisprudence and particular jurisprudence. Austin took a

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legal system as it is that is positive law and resolved it into
its fundamental conception.
Allen has pointed out that Austin does not revolt against
18th-century individualism but seems to be quite
impervious to it. His approach was secular, positivistic,
and empirical. In fact, it was Austin who propounded the
theory of positive law, the foundation of which was laid by
Bentham.
Exponents of Analytical School
The prominent exponents of this school are Bentham,
Austin, Holland, Salmond, Kelsen, Gray, Hoffield and Hart.

*Tenets of analytical School

1. Difference between law as it is and law as ought to
be – This is a trait of all positivism thinkers for example,
Bentham’s Law and Morals have same course but different
circumference. Austin does not deny that moral factors
work in the creation of law, however, he does not allow
any place to morals in his theory. To him, positive law
carries its own standard itself. This approach has been
criticized by Dias, Hughes, Paton, Stone, Fuller, etc.
2. Concentration of positive law – Analytical jurists
look exclusively at the positive law. They prefer to be
concerned only with what is the pure fact of law.
Representing to themselves the whole body of legal
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precepts that obtain in each system as made at one stroke
on a logical plan to which they conform in every detail, the
analytical jurists set out to discover the plan by analysis.
3. Law in terms of and a product of State – Analytical
jurist regards law as something made consciously by
lawmakers, whether legislative or judicial. They
emphasize not the way in which the precepts originate
with respect to their content but the fact that they get the
conscious stamp of the authority of the state. Thus, the
most important fact is establishment or authoritative
recognition by the state, of a rule of law. In this sense law
is a product of conscious and increasingly determinate
human will.
4. Logic – For studying law, analytical jurist have mainly
taken resort of logic and rejected ethical elements. There
is no value of historical or social factors for jurists of
analytical school.
5. Statute – Law is that which is made consciously by
the state. Statute law is the main concern of the school.

*Kelson’s pure theory of law:

Kelson’s theory of law which is known as the pure theory
of law implies that law must remain free from Social
Sciences like psychology, sociology, or social history.
Kelson’s aim was to establish a science of law which will

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be pure in the sense that it will strictly eschew all
metaphysical, ethical, moral, psychological, and
sociological elements.
Kelson defines law as an order of human behaviour. His
sole object was to determine what can be theoretically
known about the law of any kind at any time under any
conditions.
The essential foundations of Kelson’s system may be
summarized as under:
1. The aim of theory of law as of any science is to reduce
chaos and multiplicity and to bring unity.
2. Legal theory is science not volition. It is knowledge of
what law is, not of what the law ought to be.
3. Law is a normative not a natural science.
4. Legal theory is a theory of norms. It is not concerned
with the effectiveness of legal order.
5. A theory of law is formal, of the way of ordering
changing contents in a specific way.
6. The relations of legal theory to a particular system of
positive law is that of possible to actual law.
Criticism
Kelson’s pure theory of law has been criticized by jurists.
The main criticisms are as follows:

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1. His conception of Grundnorm is vague. Friedman puts
it, it is a fiction incapable of being traced in legal
reality. Kelson seems to have given his thesis based
on the written constitution but even in the written
constitution Grundnorm is made up of many elements
and any one of these elements alone cannot have the
title of Grundnorm.

2. Every rule of law or norm derives its efficacy from

some other rule or norm standing behind it but the
grundnorm has no rule or norm behind it. A
grundnorm derives its efficacy from the fact of its
minimum effectiveness.

3. Writers like Friedman, Stone, Stammer have pointed

out that in whatever way the effectiveness is
measured, Kelson’s theory has ceased to be pure on
this. The minimum of effectiveness cannot be proved
except by an enquiry into political and social facts
whereas Kelson has altogether rejected political and
social facts.

*Historical School

Historical school of jurisprudence deals with the origin

and development of the general principles of law as well
as certain important legal principles which have been

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imbibed into legal philosophy. It primarily emerged as a
reaction against the natural law school. In fact, Prof. Dias
opines that its reaction against the natural law theories
can be said to be the basis of several important principles
of historical jurisprudence.

Some thinkers are also of the opinion that the Historical

School has emerged as a reaction against Analytical legal
positivism.

Montesquieu is regarded as the first jurist to follow the

“Historical Method”. He studied the laws of various
societies and concluded that “laws are the creation of
climate, local situations, accident or imposture”.

He did not go further to explain his observation. However,

this idea of law answering the needs of time and place has
been the basis of many notable ideas and theories.

Savigny is the founder of the Historical School in Europe.

He was academically inclined towards historical studies.
He believed reforms which go against the nation’s
continuity are doomed. Therefore, he cautioned legislators
to look before leaping into reforms.
He considered law to be “a product of times the germ of
which like the germ of State, exists in the nature of men as
being made for society and which develops from this germ
various forms, according to the environing influences
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which play upon it.” Savigny believed that the nature of
any legal system reflects the spirit of its people. This later
came to be known as Volksgeist.
Estimate of Historical School
Historical School has always maintained that law cannot
be studied in complete isolation of its social aspect. It is a
movement for facts against fancy. While it is recognized
that the Historical School primarily studies the “evolution”
of law, it is also noted by jurists that “evolution” does not
mean “progress”. It has been opined by some jurists that
the Historical School owes its existence as a juristic school
to the fact that it supplies the historical aspect of a
particular law or legal concept as an aid for interpretation.
The moment it fails to do so, it shall no longer be said to be
a juristic school.

*Comparison between Historical School and Analytical

School
1. The scope of the Analytical School is confined to
mature legal systems whereas that of Historical School
extends to primitive legal institutions of society.
2. Analytical School believes that law is a creation of
man whereas the Historical School believes that law is
selfexistent.

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3. The Analytical School believes that law has been
created by the State whereas the Historical School believes
that the concept of law existed even before that of State.
4. The Analytical School believes that the “hallmark of
law is its enforcement by the sovereign” whereas the
Historical School is of the opinion that law does not owe
its existence to its enforcement by a sovereign.
5. Unlike Analytical School, the Historical School regards
custom as a formal source of law.
6. While interpreting any law, the Historical School
emphasizes upon historical aspect whereas the Analytical
School is strictly concerned with its textual contents.

*Sociological School:
The sociological school of jurisprudence started
dominating over the other schools in the initial years of
the 20 Century. It aims to study the circumstances that led
to the emergence of legal institutions and those which
control their scope and applicability thereafter. It is
completely unconcerned with the ethical constituents of
law.
One of the most important aftermaths of the Industrial
Revolution was the increased tendency towards
socialization amongst the people. It was recognized that to
ensure justice, it is important to strike a balance between
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the overall welfare of the society and the protection of
individual liberties. Thus, it was opined that the society is
an important element in an individual’s life and vice-versa.
Approaches made from this perspective are known as
sociological approaches.
The works of Roscoe Pound have greatly contributed to
the school of sociological jurisprudence. His ideas are a
product of his constant confrontation with sociological
and philosophical problems as well as the working of the
American courts. Although some may describe him as
completely pragmatic or a utilitarian, he never really
denied the important part played by abstract legal
philosophy in the development of legal institutions.
However, he did approve of the various limitations that
have been imposed upon it by time and place. Pound is
credited for the growth of the functional attitude in
jurisprudence. Functional attitude refers to the attitude of
looking at the functional aspects and working of law
rather than its abstract contents. According to him, the
purpose of sociological jurisprudence is to ensure that
social facts are taken into consideration while formulating,
interpreting, and applying laws.

*Theory of Social Engineering:

Pound frequently stated that the task of a lawyer is
analogous to that of an engineer. Pound defined interests
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as wants or desires which are asserted by individuals in a
society. Law must attend to such assertions to create an
organized society. According to him, the purpose of social
engineering is to build a society in which maximum wants
are satisfied with minimum friction and waste. Thus, it
must balance competing interests. Pound classified
various interests as follows:
1. Private Interests- These are an individual’s
“interests of personality” such as physical integrity,
reputation, freedom of volition and freedom of conscience.
2. Public Interests- These are the interests asserted by
individuals either involved in politics or as viewed from
the standpoint of political life.
3. Social Interests- These are the interests pertaining
to the social life of an individual and generalized as the
interests of social groups. These may pertain to: • General
Security
• Security of social institutions
• General Morals
• Conservation of Social Resources
• General Progress
• Individual life

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One of the most important outcomes of sociological
jurisprudence is that it promoted field study to evaluate
the interrelation between law and society. Another
important outcome is that it evaluated abstracted ideas on
an empirical basis. Critics have argued that the sociological
school of jurisprudence teaches “a little of everything
except law.” They further state that a textbook of sociology
cannot be converted into that of jurisprudence by simply
changing the title. Nevertheless, it is difficult to deny the
importance of sociological school in the study of law for;
firstly, it helps us understand the evolution of law in a
better manner, secondly, the element of human interest
shall always play a prominent role in law and lastly, study
of social interest leads to a better understanding of the
legal system.

*Meaning and Nature of Law:

Law is the subject-matter of jurisprudence since the latter
deals with the study of law. In its most general and
comprehensive sense, it means any rule of action and
includes any standards or pattern to which actions are or
ought to be confirmed.
Blackstone defines law as “it signifies a rule of action and
is applied indiscriminately to all kinds of action whether
animate or inanimate or rational or irrational.” Bentham
said that law is a portion of discourse by which expression
is given to an extensively applying and permanently in
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during act or state of the will of a person or person in
relation to others and in relation to whom he is or they are
in the state of superiority.
The word law is in two main forms that is one is concrete
and the other is abstract. In its concrete form, the law
includes statutes, ordinances, decrees, and the act of
Legislature.
Law may be described as a normative science that is a
science which Lays down norms and Standards for human
behavior in a specified situation or situation enforceable
through the sanction of the state.
What distinguishes law from other Social Sciences is its
normative character. This fact along with the fact that at
stability and certainty of law are desirable goals and social
values to be pursued, make the law to be a primary
concern for the legal fraternity.
Roscoe Pound attributed four major functions of law,
namely:
(1) maintenance of law and order in society
(2) to maintain status quo in society
(3) to ensure maximum freedom of individuals
(4) to satisfy the basic needs of the people. He treats law
as a species of social engineering.

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*Purpose of Law
Salmond retains the emphasis on the judicial process but
considers that a reference to the purpose of the law is
essential. The law may be defined as the body of
principles recognized and applied by the state in the
administration of Justice. Justice is the end of law and it is
only fitting that an instrument should be defined by a
delineation of the purpose which is its raison d’être. This
raises the question of the relationship of law and Justice in
which one theory defines law in terms of justice but from
this, it follows that, and unjust law cannot exist for if it
could then on the promises there would be a fetal cells
contradiction.
Many writers have fallen into the simple trap. Earlier
theories of natural law put the emphasis on Justice and
denied the validity of law if it was opposed to natural
justice, but slavery condemned by natural law yet existed
in the legal systems of the time and thought the Romans
recognize this difficulty they never succeeded in solving it.
A second means of solving the problem of the relationship
of law and justice is to place all the emphasis on law and
regard justice as near conformity to law by then we are
depriving ourselves of a Criterion which may not be
wholly subjective by which we made test the operation of
a legal system. The purpose of law is essential to an
understanding of its real nature but the pursuit of justice
is not the only purpose of law the law of any period so

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many ants and doors and will vary as the decades roll by
and to seek a for one term which may be placed in a
definition as the only purpose of law leads to dogmatism
the end.

*Classification of Law:
Salmond has referred to eight kind of laws:
1. Imperative law – the command of the sovereign must
be general, and the observance of law must be enforced
by some authority.
2. Physical or scientific law – these are laws of science
which are the expression of the uniformities of nature.
3. Natural or moral law – Natural law is based on the
principles of right and wrong whereas Moral laws are
laws based on the principles of morality.
4. Conventional law – system of rules agreed upon by
persons for the regulation of their conduct towards
each other.
5. Customary law – any system of rules which are
observed by men as a custom and has been in practice
since time immemorial.

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6. Practical or technical law – rules meant for a
particular sphere by human activity.
7. International law – rules which regulate the relations
between various nations of the world.
8. Civil law – the law enforced by the State.

*SOURCES OF LAW:

1. Legislation
2. Precedent
3. Custom

1.Legislation as a source of law:

Legislation means the process of lawmaking. Legis means
law and Latum mean “making”, and it means lawmaking.
According to Austin, it means the making of law by a
supreme or a sovereign authority which must be followed
by people of every stratum of the society. Salmond defines
Legislation as the process of lawmaking by a competent
and able authority.
Legislation is the process of lawmaking where a
competent authority is given the task of drafting and
enacting the law in a state. It is also said to be a strict
concept of lawmaking because there is only one body
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which is entrusted with the work of lawmaking and also
there is no scope of any alteration as such because of
codified and watertight laws which leave a very minuscule
range of the amendment.
Legislation is therefore regarded as the most important
source of law in the prevalent times. Hence it is the
codified form of law which is commanded by the sovereign
to the common masses, and it becomes a predicament
situation to regard legislation as the authoritative source
of law.
Some main advantages of legislation are as follows:
1.Abrogative Power—It can change or annul old law;
which control isn’t controlled by different sources.
2. Effectiveness—It separates the elements of making law
and overseeing it between the Legislature and the legal
executive.
3.Declaration — it gives that principles of law will be
known before they are authorized.
4. Reliance on Accidental Legislation — Legislation is
independent and emerges out of as the authoritative
source of law it need not hold up until the original case of
legislation.
5.Unrivalled in Form — It is predominant in structure,
brief, clear, effectively available, and understandable as

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against case law, which is an increase of sense in a
considerable amount of pointless issue.

Types of Legislation
A.Supreme Legislation
The Supreme legislation is the legislation adopted by the
sovereign intensity of the state. In this manner, some other
authorities which are the organ of the state cannot control
or check it. There is no legitimate restriction on its
capacity. Indian parliament is likewise preeminent. Even
though there are different constitutional amendments
upon its capacity, it is not subject to any other
administrative authorities inside the state. Therefore, the
sovereign jurisdiction of the state can’t be revoked,
cancelled or constrained by some other authoritative
organ of the state.
B.Subordinate Legislation:
Subordinate legislation will be legislation by some other
authority than the Supreme specialist in the state. It is
made under the powers designated by the Supreme
authority. Such legislation owes its reality, legitimacy, and
continuation to the Supreme expert. It can be cancelled
and abrogated anytime by the power of the sovereign
authority and therefore, it must offer an approach to

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sovereign legislation. Subordinate legislation is liable to
parliamentary control.

2.Precedent as a source of law

Every developed legal system possesses a judicial organ.
The main function of the judicial organ is to adjudicate the
rights and obligations of the citizens. In the beginning, in
this adjudication, the courts are guided by customs and
their own sense of justice. As society progresses,
legislation becomes the main source of law and the judges
decide cases according to it. Even at this stage, the judges
perform some creative function. In the cases of the first
impression, in the matters of interpretation, or in filling up
any lacuna in the law made by legislation the judges, to
some extent, depend on their sense of right and wrong and
in doing so, they adopt the law to the changed conditions.
Authority of Precedents
The authority of a decision as a precedent lies in its Ratio
Decidendi.
*Ratio Decidendi and Obiter Dictum
There are cases which involve questions which admit of
being answered on principles. Such principles are deduced
by way of abstraction of the material facts of the case
eliminating the immaterial elements. The principle that
comes out because of such case is not applicable only to
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that case, but to cases also which are like the decided case
in their essential features. This principle is called Ratio
Decidendi. The issues which need the determination of no
general principles are answered on the circumstances of
the case and lay down no principles of general application.
These are called Obiter Dictum.
It is the Ratio Decidendi of a case that is binding and not
the Obiter Dictum that has a binding effect of a Precedent.
But it is for the judge to determine the Ratio Decidendi of
the decision and to apply it on the case which he is going
to decide. This gives an opportunity to him to mold the law
according to the changed conditions by laying emphasis on
one or the other point.
*Precedent and Legislation:
The legislation has its source in the process of law which is
basically enacted and enforced by the State while the
precedent has its origin in ancient and historic judicial
pronouncements.
Legislation has an authoritative force on courts by the
assembly. However, precedents are made by the courts
themselves.
Legislation signifies formal declaration of law by the
governing body though precedents are acknowledgement
and use of new standards of law by courts in the
administration of equity, justice and good conscience.

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Legislation is ordered before a case emerges. However, the
precedent appears simply after the case has developed
and taken for the choice of the court.
Legislation is basically of an exhaustive structure while the
extent of legal precedent is restricted to comparable cases
as it were.
Legislation is commonly and generally forthcoming while
precedent is retrospective in nature.
Legislation is announced or distributed before it is
brought into power, on the other hand, precedent comes
into power on the double, i.e., when the choice is
articulated.
Legislation is finished with the goal of the lawmaking
process, yet it is not so on account of the precedent. The
precedent which incorporates ratio decidendi and obiter
dicta are expected to settle a particular contest on the
purpose of law once for all.

3. Custom as a source of law:

Customs are the earliest sources of law and form the basis
of the English Common Law system as we see it today.
They can be described as cultural practices which have
become definite and backed by obligation or sanction just
by virtue of widespread practice and continue presence.
Requisites of a Valid Custom
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i. Reasonability
A custom must be in conformity with basic morality, the
prevailing understanding of justice, health and public
policy. If it is not reasonable in its origin or practice, it
cannot be considered a valid custom. For example, Sati
was an accepted custom once, but with the modern moral
understanding, it is reprehensible, and therefore it cannot
be considered a custom today.
ii. Conformity with Statute Law
No custom can be in contravention to the existing law of
the land. Any practice, however widespread and accepted,
if found in violation of any statute of a said territory
cannot be considered a custom.
iii. Certainty
It must be clear and unambiguous as to what the custom is
and how it is practiced. A custom can only hold up in a
court of law when it is not indefinite or uncertain. It needs
to be absolute and objective in theory and in action.
iv. Consistency
A custom must be consistent with the general principles of
Law which form the basis of every law or statue which
exists. These principles form the basis of ideas like Justice,
fairness and liberty, and every custom must be in
consonance with these.

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vi. Continuity
A custom must not be interrupted, or its practice must not
be sparse. It needs to be continuing for time immemorial
without any interruption.
vii. Must be peaceful in its practice
Any custom advocating or calling for violence, implicitly or
explicitly, `cannot be considered a custom.

viii.Must not be opposed to Public Policy

Whatever the public policy may be of the state the custom
is operating in, must be conformed to.

Types of Customs
There are two broad categories into which customs can be
divided. These are customs without binding obligation and
customs with legally binding obligations.
A.Customs without binding obligation
These customs are not enforceable by law but are still
prevalent in society and have societal sanctions attached
to them. For example, every society has some customs
about how to dress, how to address elders or how to
conduct marriages etc. These are not legally binding but

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can still have powerful sanctions attached to them. For
example, if a person comes to a funeral wearing colorful
clothes, he will be ostracized and alienated by others
around him.
These customs, although not binding, hold tremendous
importance in society and must be followed uniformly for
efficient functioning of society.
B.Customs with binding obligations
In this classification those customs are discussed which in
an objective and stringent sense are viewed as the
obligations and commitments of men. Such customs may
direct the commitment of marriage and the upbringing of
children, the transmission of property etc.
Customs under this category have sanctions which are
more stringent than the previous category. If these
customs gain widespread acceptance, they acquire legal
character. On violation of these customs, adequate penalty
is incurred by the violator as per the statute that governs
the custom.

*Legislation and Custom

The presence of legislation is basically by law, while
customary law is wholly accepted in a particular
boundary.

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Legislation is enacted out of hypothetical standards.
However, customary law becomes is adopted because of
its very well and long presence in history.
Legislation as a source is indeed a long-lasting nature of
law, as contrasted to the custom which is the most
established type of law and is followed by a particular sect.
The legislation is a fundamental characteristic for a
present-day society while the customary law was created
in a crude social order.
Legislation is finished, exact, written in the structure and
effectively open. However, customary law is generally
unwritten am non-scriptum and is hard to follow.
Legislation results out of the deliberations while custom
develops inside the public in the ordinary course.

*Rights:
A right is an interest recognised and protected by a rule of
right. It is any interest, respect for which is a duty, and the
disregard of which is a wrong. All that is right or wrong,
just or unjust, is so by reason of its effects upon the
interests of mankind, that is to say upon the various
elements of human well-being, such as life, liberty, health,
reputation, and the uses of material objects. If any act is

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right or just, it is so because and in so far as it promotes
some form of human interest. If any act is wrong or unjust,
it is because the interests of men are prejudicially affected
by it. Conduct which has no influence upon the interests of
anyone has no significance either in law or morals. Every
wrong, therefore, involves some interest attacked by it,
and every duty involves some interest to which it relates,
and for whose protection it exists. The converse, however,
is not true. Every attack upon an interest is not a wrong,
either in fact or in law, nor is respect for every interest a
duty, either legal or natural. Many interests exist de facto
and not also de jure; they receive no recognition or
protection from any rule of right. The violation of them is
no wrong, and respect for them is no duty. For the
interests of men conflict with each other, and it is
impossible for all to receive rightful recognition. The rule
of justice selects some for protection, and the others are
rejected. The interests which thus receive recognition and
protection from the rules of right are called rights. Every
man who has a right to any thing has an interest in it also,
but he may have an interest without having a right.
Whether his interest amounts to a right depends on
whether there exists with respect to it a duty imposed
upon any other person. In other words, a right is an
interest the violation of which is a wrong.

*Correlation between Rights and Duties:

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Rights and duties are necessarily correlative. There can be
no right without a corresponding duty, or duty without a
corresponding right. For every duty must be a duty
towards some person or persons, in whom, therefore, a
correlative right is vested. And conversely every right
must be a right against some person or persons, upon
whom, therefore, a correlative duty is imposed. Every right
or duty involves a vinculum juris or bond of legal
obligation, by which two or more persons are bound
together. There can be no duty unless there is someone to
whom it is due ; there can be no right unless there is
someone from whom it is claimed; and there can be no
wrong unless there is someone who is wronged, that is to
say, whose right has been violated.

*Elements of Legal Rights:

(1) A person in whom it is vested, and who may be
distinguished as the owner of the right, the subject of it, or
the person entitled.
(2) A person against whom the right avails, and upon
whom the correlative duty lies. He may be distinguished as
the person bound, or as the subject of the duty.
(3) An act or omission which is obligatory on the person
bound in favour of the person entitled. This may be
termed the content of the right.

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(4) Something to which the act or omission relates, and
which may be termed the object or subject matter of the
right.
(5) A title is to say, certain facts or events by reason of
which the right has become vested in its owner.

*Hoffield Analysis of Rights:

Hoffield was a professor of law and tried to simplify the
complicated concept of rights. He did so by classifying
rights into eight distinct concepts. He further grouped
them into jural correlatives and jural opposites. A jural
correlative is a pair where the existence of one implies the
existence of another i.e., they are mutually inclusive. Jural
opposite is a pair where existence of one implies absence
of another i.e. they areopposite to each other and mutually
exclusive.
1.Right (Claim)-No Right (no Claim):
My legal rights (in the strict sense) are the benefits which I
derive from legal duties imposed upon other persons.
These are the interests which is recognised and protected
by the law. Rights of this class are concerned with those
things which other persons ought to do for me.
2.Liberties/Privilege- Duty:

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Legal liberties are the benefits which I derive from the
absence of legal duties imposed upon myself. They are the
various forms assumed by the interest which I have in
doing as I please. They are the things which I may do
without being prevented by the law. The sphere of my
legal liberty is that sphere of activity within which the law
is content to leave me alone. The term right is often used
in a wide sense to include such liberty. I have a right (that
is to say, I am at liberty) to do as I please with my own; but
I have no right and am not at liberty to interfere with what
is another's. I have a right to express my opinions on
public affairs, but I have no right to publish a defamatory
or seditious libel. I have a right to defend myself against
violence, but I have no right to take revenge upon him who
has injured me.
3.Power-Disability:
A power may be defined as ability conferred upon a
person by the law to determine, by his own will directed to
that end, the rights, duties, liabilities, or other legal
relations, either of himself or of other persons. Powers are
either public or private. The former is those which are
vested in a person as an agent or instrument of the
functions of the state; they comprise the various forms of
legislative, judicial, and executive authority. Private
powers, on the other hand, are those which are vested in
persons to be exercised for their own purposes, and not as
agents of the state.

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4.Immunity-Liability:
When immunity i.e., protection is granted to one person,
they are shielded from any liability which might be
imposed on them because of the immunity being granted
by the law. For example: Wearing of helmets while driving
is mandatory. However, Sikhs wearing a turban are not
required to wear a helmet. This is an immunity granted to
them because of which they will not be subjected to any
liability under the law.

*Possession:
Possession, simply put, can be defined as the relationship
of an individual with an object/property. The concept of
possession is one of the most complicated concepts in law.
One of the questions which frequently arises is to why is
the possession of an individual protected even though
they are not the owners? The answer to this question can
be found in the writings of German philosophers. Kant and
Hegel start from freedom. The freedom of the will, Kant
said, is the essence of man. It is an end in itself; it is that
which needs no further explanation, which is absolutely to
be respected, and which it is the very end and object of all
government to realize and affirm. Possession is to be
protected because a man by taking possession of an object
has brought it within the sphere of his will. He has
extended his personality into or over that object. As Hegel
would have said, possession is the objective realization of
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free will. And by Kant's postulate, the will of any individual
thus manifested is entitled to absolute respect from every
other individual and can only be overcome or set aside by
the universal will, that is, by the state, acting through its
organs, the courts.
*Elements of Possession:
1.Animus Possidendi/ Domini: Refers to the intention of
the individual to hold on to the object. The intent
necessary to constitute possession is the intent to
appropriate to oneself the exclusive use of the thing
possessed. It is an exclusive claim to a material object. It is
a purpose of using the thing oneself and of excluding the
interference of other persons.
2. Corpus Possessionis: To constitute possession the
animus domini is not in itself sufficient but must be
embodied in a corpus. The claim of the possessor must be
effectively realised in the facts; that is to say, it must be
actually and continuously exercised. The will is sufficient
only when manifested in an appropriate environment of
fact.

*Modes of acquisition of possession:

The modes of acquisition are two in number, namely
Taking and Delivery. Taking is the acquisition of
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possession without the consent of the previous possessor.
The thing taken may or may not have been already in the
possession of someone else, and in either case the taking
of it may be either rightful or wrongful.
Delivery, on the other hand, is the acquisition of
possession with the consent and co-operation of the
previous possessor. It is of two kinds: actual and
constructive. Actual delivery is the transfer of immediate
possession; it is a physical dealing with the thing as it
transfers from the hands of one person to those of
another.
Constructive delivery, on the other hand, is all which is not
actual. There are three types of constructive delivery
a.The first is that which the Roman lawyers termed
traditio brevi manu. It consists in the surrender of the
mediate possession of a thing to him who is already in
immediate possession of it.
b. The second form of constructive delivery is termed as
constitutum possessorium that is to say, an agreement
touching possession. This is the converse of traditio brevi
manu. It is the transfer of mediate possession, while the
immediate possession re- mains in the transferor.
c. The third form of constructive delivery of possession
is known as attornment. This is the transfer of mediate
possession, while the immediate possession remains
outstanding in some third person.
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*Ownership:
Ownership, in its most comprehensive signification,
denotes the relation between a person and any right that
is vested in him. Ownership is often termed as the bundle
of rights.
Ownership is of various kinds, and the following
distinctions are of sufficient importance
1.Corporeal and Incorporeal Ownership: The
ownership of material objects is called corporeal
ownership whereas the ownership of right is called
incorporeal ownership. Thus, the ownership of a house,
table, land, machinery, etc., is corporeal ownership and the
copyright, patent, trademark, right of way, etc. is
incorporeal ownership. Corporeal things are those which
are tangible that is, which can be felt by the senses while
incorporeal things are intangible and cannot be felt by
senses.
2. Sole Ownership and Co-ownership: When the
ownership is vested in one person only, it is called the sole
ownership and when it is vested in more than one it is
called co-ownership, expartnership. ‘Tenants in common’
and ‘joint tenants’ (in English law) are co-owners of the
tenancy. In India, the coparcenary of Hindu is also a
coownership. Co-ownership is possible only so far as the
law makes provisions for harmonizing in some way the
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conflicting claims of the different owner inner se. There is
an existence of reciprocal obligation of restricted use and
enjoyment between co-owners.
3.Trust Ownership and Beneficial Ownership: The
institution of trust and beneficial ownership was not the
same as now, the institution of trust and the rights of the
trustee and the beneficiary are the special creation of
English ‘equity’. The relation in trust is that there are two
or more sets of owners- one set is under an obligation to
use its ownership for the benefit of another, the former is
called the ‘trustee’ and the letter is called the ‘beneficiary’,
and this is ‘beneficial ownership’.

4.Legal and Equitable Ownership: Certain rights which

were not recognized by the courts of common law in
England were afterwards recognized by the courts of
equity; and the distinction between legal and equitable
ownership is like the distinction between legal and
equitable rights. Ownership recognized by the Courts of
common law is called legal ownership, whereas ownership
recognized by courts of equity is called equitable
ownership. One person may be the legal and another, the
equitable owner of the same thing or right at the same
time.
5.Vested and Contingent Ownership: Ownership is said
to be vested when the owner’s title is already perfect. It is
called contingent when the owner’s title is as yet imperfect
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but is capable of becoming perfect in the future on the
fulfilment of some condition. It is vested ownership; the
property is owned absolutely. In contingent ownership,
the property is owned conditionally. It means that the
investitive facts are incomplete, but it may be completed
in the future. Till then the ownership is contingent and
when the required condition is fulfilled, it becomes
complete or vested.

*Difference between Ownership and Possession:

1. Ownership involves the absolute rights and legitimate
claim to an object. It means to own the object by the
owner.Possession is more the physical control of an object.
The possessor has a better claim to the title of the object
than anyone, except the owner himself.
2. Ownership is the right of the owner against the world
indefinite in point of the user, unrestricted in point of
disposition or destroying and unlimited in point of
duration over a thing. As per the definitions, it is the
continuous exercise of a claim to exclusively possess and
use the object/thing.
3. Ownership itself gives the owner the right to
possession. However, Possession does not indicate the
right to ownership.

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4. The transfer of ownership is a technical and long
process and involves conveyance. Transfer of possession
is fairly easier and less technical.
5. Ownership is essentially a bundle of rights, all rights in
rem. It is not a right, just a prima facie evidence of
ownership.

*Personality: (Concept of Person)

The concept of personality can be traced to attributes of
human behaviour/characteristics which is unique to the
mankind. This also involves power to reason and to make
a choice. The capacity to reason and make a choice is
unique to the human beings and animals do not possess
such attributes. Various corporations and entities are also
a part of the society and therefore they too need to be
subjected to laws and regulations. It is for this reason that
law vests them with personality and such corporations
and entities are persons in the eyes of law.
A person, then, may be defined, for the purposes of the
law, as any being to whom the law attributes a capability
of interests and therefore of rights, of acts and therefore of
duties. Persons are of two types:
Natural persons: Is an individual/ human being who has
a personality of its own.

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Legal persons: A legal person is any subject matter to
which the law attributes a merely legal or fictitious
personality. This extension, for good and sufficient
reasons, of the conception of personality beyond the limits
of fact—this recognition of persons who are not men—is
one of the most noteworthy feats of the legal imagination.

*Legal Status of Lower Animals:

The only natural persons are human beings. Beasts are not
persons. They are merely things—often the objects of legal
rights and duties, but never the subjects of them. Beasts,
like men, are capable of acts and possess interests. Yet
their acts are neither lawful nor unlawful; they are not
recognised by the law as the appropriate subject-matter
either of permission or of prohibition. A beast is as
incapable of legal rights as of legal duties, for its interests
receive no recognition from the law. The law is made for
men and allows no fellowship or bonds of obligation
between them and the lower animals.
There are, however, two cases in which beasts may be
thought to possess legal rights. In the first place, cruelty to
animals is a criminal offence, and in the second place, a
trust for the benefit of classes of animals, as opposed to
one for individual animals, is valid and enforceable as a
public and charitable trust; for example, a provision for

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the establishment and maintenance of a home for stray
dogs or sick animals.

*Legal Status of Dead Persons:

Dead men are no longer persons in the eye of the law.
They have laid down their legal personality with their
lives and are now as destitute of rights as of liabilities.
They have no rights because they have no interests. There
is nothing that concerns them any longer. However, there
are exceptions to this. The law These are a man's body, his
reputation, and his estate. It is an offence to defame a dead
person or to violate their graves. The estates of a dead
man have to be disposed in accordance with their will.
*The legal status of an unborn person:
The legal definition of a "person" or "personality"
revolves around the possession of rights and the ability to
carry out legal duties. The personality of a human being
comes into existence at birth and ceases to exist at his
death. Hence, dead men are not legal persons and do not
possess any legal personality. However, the case with
unborn persons is not the same. Nothing in the law
prevents an unborn from owning property before he is
born.
A child in the mother's womb is for many purposes
regarded by a legal fiction as already born, i.e., he is

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granted a certain legal personality based on the maxim
Nasciturus pro jam nato habetur. His ownership is
contingent as he may never be born at all.

*The legal status of a minor:

Humanism is one of the essential law concepts in modern
jurisprudence since a civilized society is a foundation for
the development of a person's rights. Minors are legal
subjects, and their position in a legal and social society
should be at the heart of the legal system. Their key
characteristic is that they are unable to perform legal
connections on their own thoroughly. This is due to their
lack of total capacity as they enter essential legal
relationships through their parents or someone who may
replace their place.
Minors are natural persons with a legal identity. They are,
however, deemed incapable of entering into a contract. In
India, minors are usually under the age of 18 because they
cannot comprehend the essence and implications of their
acts.

*Legal status of a lunatic person:

The word "person" is taken from the Latin word persona.
Which means a mask worn by artists for playing different
roles. According to the judicial system the legal definition
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of insanity is that a person who has been labelled insane is
incapable of distinguishing between right and wrong. The
status of a lunatic is different. They are natural persons
with legal identity, but they are incapable of contracting.
Suppose at the time of entering into a contract a lunatic
person is incapable of understanding the nature of a
contract. In that case, they are deemed incapable of
entering into a contract.

*Legal Status of Idol:-

It has been judicially decided that an idol is a juristic
person and as such, it can bear property. However, its
position is just like that of a minor because the priest, i.e.
Pujari acts as a guardian to look after the interest of the
idol/deity. In a historical case of Pramatha Nath Mullick
Vs. Pradyumna Kumar Mullick, (1925) the Privy
Council held that an idol/deity is a juristic person and its
will as to its location must be duly respected.

*Legal Status of Mosque:-

Regarding the legal personality of the Mosque, the courts
have expressed conflicting views. In the case of Maula
Bux Vs. Hafizudding AIR 1925 Lah 372 the High Court of
Lahore held that a Mosque was a juristic person capable of
being sued.

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But in the case of Masjid Shahid Ganj Vs. Shiromani
Gurudwara Prabandhak Committee, (1940), the Privy
Council held a contrary view and held that Mosques are
not artificial persons in the eyes of law and, therefore, no
suit can be brought by or against them. The Privy Council,
however, left the question open whether for any purpose,
a Mosque can be regarded as a juristic person.

*Conclusion
According to law, a legal person is one who is capable of
will. Or in simple words, a person is anyone who has
certain legal rights and duties. The concept of a dead
person and an unborn one is not the same. Where on one
hand personality ceases to exist at death, it begins with the
birth. A child in his mother's womb is regarded by legal
fiction as already born for different purposes. On the other
hand, minors are natural persons with a legal identity.
They are, however, deemed incapable of entering into a
contract due to their lack of full capacity, as they enter
essential legal relationships through their parents or
someone who may replace their place.

*The concept of Liability:

He who commits a wrong is said to be liable or responsible
for it. Liability or responsibility is the bond of necessity

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that exists between the wrongdoer and the remedy of the
wrong. This vinculum juris is not one of mere duty or
obligation; it pertains not to the sphere of ought but to
that of must. It has it source in the supreme will of the
state, vindicating its supremacy by physical force in the
last resort against the unconforming will of the individual.
A man's liability consists in those things which he must do
or suffer, because he has already failed in doing what he
ought. It is the ultimatum of the law. Liability is in the first
place either civil or criminal, and in the second place
either remedial or penal.
1.Remedial Liability:
The theory of remedial liability presents little difficulty. It
may be laid down as a general principle, that, whenever
the law creates a duty, it should enforce the specific
fulfilment of it. The sole condition of the existence of
remedial liability is the existence of a legal duty binding
upon the defendant and unfulfilled by him. What a man
ought to do by a rule of law, he ought to be made to do by
the force of law.
2.Penal (Criminal) Liability:
The general conditions of penal liability are indicated with
sufficient accuracy in the legal maxim. Actus non facit
reum, nisi mens sit rea-The act alone does not amount to
guilt; it must be accompanied by a guilty mind. There are
two conditions to be fulfilled before penal responsibility

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can rightly be imposed, and we may conveniently
distinguish these as the material and the formal conditions
of liability. The material condition is the doing of some act
by the person to be held liable. A man is to be accounted
responsible only for what he himself does, not for what
other persons do, or for events independent of human
activity altogether.
3. Civil liability :
Civil liability is the enforcement of the right of the plaintiff
against the dependent in civil proceedings. Civil liability
gives rise to Civil Procedure whose purpose is to the
enforcement of certain rights claimed by the plaintiff
against the defendant. Examples of civil proceedings are
an action for recovery of the Debt, Restoration of property,
the specific performance of a contract, recovery of
damages, the issuing of an injunction against the
threatened injury etc.
4.Vicarious liability -
Vicarious liability means a liability which is incurred for or
instead of another.Generally, a person becomes liable for a
tort committed by him. But there are certain
circumstances in which one person becomes liable for the
tort committed by another. Such liability is called vicarious
liability. There are three exceptions to the general rule
that man must be forced to do by the force of law what he
is bound to do by a rule of law. Ex- Master and servant

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5. Absolute or strict liability
Both in Civil and criminal law, mens rea or guilty mind is
considered necessary to hold a person responsible/liable.
However,there are some exceptions to the general rule. In
those cases, a person is held responsible irrespective of
the existence of either wrongful intent or negligence.
Such cases are known as the wrongs of absolute liability/
strict liability.
*Negligence:
Negligence is culpable carelessness. " It is- " the absence of
such care as it was the duty of the defendant to use." The
essence of negligence is not inadvertence but indifference.
Indifference is exceedingly apt to produce thoughtlessness
or inadvertence; but it is not the same thing. If I am
careless, indifferent, as to the results of my conduct, I shall
very probably fail to acquire adequate foresight and
consciousness of them; but I may, on the contrary, make a
perfectly accurate estimate of them, and yet remain
equally indifferent with respect to them, and therefore
equally negligent. Negligence, therefore, essentially
consists in the mental attitude of undue indifference both
respect to one's conduct and its consequences.
The term negligence has two uses, for it signifies
sometimes a particular state of mind, and at other times
conduct resulting therefrom. In the former or subjective
sense, negligence is opposed to wrongful intention, these
being the two forms assumed by that mens rea which is a
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condition of penal responsibility. In the latter or objective
sense, it is opposed not to wrongful intention, but to
intentional wrongdoing.

*Mens Rea:
The term ‘mens rea’ means the ‘guilty mind’, the criminal
or evil intent that is present in the mind of the wrongdoer
to commit an offence. In criminal jurisprudence, the guilty
state of mind is an essential and key element to fix the
criminal liability.
According to Kenny’s Outlines of Criminal Law, the
administration of criminal justice looks at mens rea in two
forms:
a. the conduct is wrong in itself (mala in se)
b. the conduct that is prohibited by law (mala prohibita)
The burden of proof lies on the prosecution to
prove the existence of mens rea in an offender’s
conduct causing an offence beyond reasonable doubt.
The Criminal jurisprudence predominantly relies on the
Latin maxim, ‘actus non facit reum
nisi mens sit rea’ which means that to constitute an act to
be illegal, the person should do it with a guilty mind i.e.

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mens rea. A criminal act has to be proved with the
existence of intention element.

*Intention
Intention is the basic element to hold a person liable for a
wrongful act, especially in criminal law. Intention is
measured by the mental state of a person to commit an act
or omission constituting an offence. The law tries to
perceive –
a. what was the state of mind of a person while
committing a crime,
b. whether the person had the knowledge of the
consequences of his conduct which is likely to cause a
crime,
c. despite the knowledge whether the person’s conduct in
furtherance (actus reus) resulted in such a crime,
d. to determine his liability
In IPC, the expression, ‘intentionally’, ‘voluntarily’,
‘wilfully’, ‘dishonestly’, describes the element of guilty
mind coupled with the knowledge of consequences.

*Wrongful act or omission:

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The first essential ingredient in constituting a tort is that a
person must have committed a wrongful act or omission
i.e., he must have committed a breach of that duty which
has been fixed by law itself. The question, therefore, arises
what then in law, a duty is. It may mean that there is some
legal limitation or restriction on the conduct of a person
that he should behave in such a manner as a reasonable
person would have behaved in like circumstances. If a
person does not observe that duty like a reasonable and
prudent person or breaks it intentionally, he is deemed to
have committed a wrongful act. A wrongful act may be a
positive ace or an omission which can be committed by a
person either negligently or intentionally or even by
committing a breach of strict duty. For example, if a person
drives his motor cycle at an excessive speed in violation of
law or fails to perform a duty as required by law, or beats a
person in order to take revenge or keeps a lion on his land
which escapes and injures a person on the road, he can be
made liable for positive wrongful act or omission in
negligence, battery or breach of strict duty, as the case
may be.
But it may be noted that, a breach of merely moral or
religious duty will not suffice; it must be a duty primarily
fixed by law. For example, once Miss A was seriously ill
and she was all alone in her house. She requested her
neighbour B to look-after her. B did this i.e., he brought
medicines, cooked food for her and served her also. She
became alright .After sometime B fell ill and by chance he
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was alone in his house. He then requested Miss A to look –
after him. But Miss a never acceded to his request with the
result B suffered a lot and became disabled. In this case
Mr. B cannot take any legal action against Miss A as the
duty is simply a moral duty and has not been fixed by the
law itself.

*Damnum Sine Injuria:

Damnum sine Injuria is a legal maxim which refers to as
damages without injury or damages in which there is no
infringement of any legal right which are vested with the
plaintiff. Since no legal right has been infringed so no
action lies in the cases of damnum sine injuria. The
general principle on which this maxim is based upon is
that if one exercises his common or ordinary rights, within
reasonable limits, and without infringing other’s legal
right; such an exercise does not give rise to an action in
tort in favour of that other person. Damages can be in any
form either in the form of any substantial harm or loss
suffered from respect to the money, comfort, health, etc.
It is an implied principle in law that there are no remedies
for any moral wrongs, unless and until any legal right has
been infringed. Even if the act or omission such done by
the defendant was intentional, the Court will not grant any
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damages to the plaintiff. As was cited in the case of Mayor
& Co. of Bradford vs. Pickles (1895) in which the
corporation of Bradford filed a suit against the defendant
alleging that the act of defendant by digging a well in the
adjoining land owned by the defendant has cut the
underground supply of water in the corporation’s well
hence causing them monetary losses since there was no
adequate supply of water to discharge for the people living
under the jurisdiction of the corporation. It was held that
the defendant is not liable since they had not violated any
legal right of the plaintiff.
*Injuria Sine Damno:
Injuria sine damno is a violation of a legal right without
causing any harm, loss or damage to the plaintiff and
whenever any legal right is infringed, the person in whom
the right is vested is entitled to bring an action. Every
person has an absolute right to his property, to the
immunity of his person, and to his liberty & infringement
of this right is actionable per se. A person against whom
the legal right has been infringed has a cause of action
such that even a violation of any legal right knowingly
brings the cause of action. The law even gives the liberty
that if a person merely has a threat of infringement of a
legal right even without the injury being completed, the
person whose right has been threatened can bring a suit
under the provisions of Specific Relief Act under
Declaration and injunction.

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As was cited in the case of Ashby Vs. White (1703)
wherein the plaintiff was a qualified voter at the
parliamentary elections which were held at that point of
time. The defendant, a returning officer wrongfully
refused to take the plaintiff’s vote. The plaintiff suffered no
damage since the candidate which he wished to vote
already won the elections but still, the defendants were
held liable. It was concluded that damage is not merely
pecuniary but injury imports a damage, so when a man is
hindered of his rights he is entitled to remedies.

*Law of Obligation:
Obligation in its popular sense is merely a synonym for
duty. Its legal sense, derived from Roman law, differs from
this in several respects. Firstly obligations are merely one
class of duties, namely those which are the correlatives of
rights in personam. An obligation is the vinculum juris, or
bond of legal necessity, which binds together two or more
determinate individuals. It includes, for example, the duty
to pay a debt, to perform a contract, or to pay damages for
a tort, but not the duty to refrain from interference with
the person, property, or reputation of others.
Secondly, the term obligation is in law the name not
merely of the duty, but also of the correlative right. It
denotes the legal relation or vinculum juris in its entirety,
including the right of the one party, no less than the
liability of the other. Looked at from the point of view of
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the person entitled, an obligation is a right; looked at from
the point of view of the person bound, it is a duty. An
obligation, therefore, may be defined as a proprietary right
in personam or a duty which corresponds to such a right.

*Administration of Justice:

justice and Administration of Justice. Without

administration of justice, it is possible keep the poplin
fear of punishment or compensation for violation of law
and in the process, people are kept disciplined and made
to obey the law. Force in all orderly societies in the
form of administration of justice has now become latent
by declaring the rights and duties of its subjects. !Justice is
precisely treating like cases alike and giving fair and
equal treatment to all persons, irrespective of status,
religion, caste, sex, race, place of origin, etc., In other
words, in rendering justice, there should not be singling
out persons for special treatment, unless there are
special circumstances for doing so. !!Justice is thus an ideal
concept. It is like truth.Law helps judges to pursue justice.
Justice is also the conscience of the while of society.
Justice includes individual liberty for achieving individual
and social welfare. At the same time, justice confines such
liberty within limits, consistent with the general welfare of
mankind. !!Salmond defines the administration of
justice as ‘the maintenance of right within a political
community by means of the physical force of the State’. It
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includes all the aspects connected with the administration
of justice, not merely with the filing of cases in a Court but
pronouncement of judgements and their execution. "One
of the essential functions of the State is the
administration of Justice. Law being the instrument of
justice, Courts of Justice are also Courts of law, because
justice has to be rendered according to law.!!Necessity of
Administration of Justice: In primitive days, man
redressed his grievances by taking revenge on is enemies
by his own hands. To quote Hobbes, “Kill whom you can
and take what you can was the slogan of those days.” In
order to live a decent and orderly life in society, the
State should have powers of force against wrong doers
and law violators. The administration of justice is the
modern and civilised substitute for the primitive practices
of private vengeance and self-help. !Meaning:
Administration of justice means justice according to law.
According to Salmond, it is the maintenance of rights
within a political community by means of the physical
force of the State. Physical force of the state is the sole
or exclusive factor for a sound administration which
also helps obedience to law. These factors are social
sanctions habits, convenience etc. Necessity of
Administration of Justice are as follows:
1. In determining a nations’s rank in a political
organisation, the test is how effective is its
administration of justice.

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2. A State may not be called a state, if it has failed to
discharge its functions concerning the administration of
justice.
3. Life becomes risky in a society in which there is no
preservation of the rights of men and no prevention of
injustice.
4.There may not be any necessity of the administration of
justice in a utopian form of society, but in the present
materialistic world, it is impossible to live without the
machinery of justice.
5. Administration of Justice, thus, must be regarded as a
permanent and necessary element of civilisation and as a
device that admits of no substitute.

*Sources of Obligation:
1. Contractual
2. Delietal
3. Quasi-contractual
4. Innominate.

1.Obligations arising out of a contract: The first and

most important class of obligations consists of those which
are created by contract. that it is that kind of agreement
which creates rights in personam between the parties to it.
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Rights in 'personal obligations are the most numerous and
important kind, and of those which are not obligations
comparatively few have their source in the agreement of
the parties.
2.Obligations arising from torts: The second class of
obligations consists of those which may be termed delictal,
or in the language of Roman law obligationes ex delicto. By
an obligation of this kind is meant the duty of making
pecuniary satisfaction for that species of wrong which is
known in English law as a tort.
3.Obligations arising from Quasi- Contract: Both in
Roman and in English law there are certain obligations
which are not in truth contractual, but which the law
treats as if they were. They are contractual in law, but not
in fact, being the subject-matter of a fictitious extension of
the sphere of contract to cover obligations which do not in
reality fall within it. The Romans called them obligationes
quasi ex contractu. English lawyers call them
quasicontracts or implied contracts, or often enough
contracts simply and without qualification.
4.Innominate: Contractual, delictal, or quasi-contractual,
is not exhaustive, for it is based on no logical scheme of
division but proceeds by simple enumeration only.
Consequently, it is necessary to recognise a final and
residuary class which we may term innominate, as having
no comprehensive and distinctive title.

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To keep the poplin fear of punishment or compensation
for violation of law and in the process, people are kept
disciplined and made to obey the law. Force in all
orderly societies in the form of administration of justice
has now become latent by declaring the rights and duties
of its subjects. Justice is precisely treating like cases
alike and giving fair and equal treatment to all
persons, irrespective of status, religion, caste, sex, race,
place of origin, etc., In other words, in rendering justice,
there should not be singling out persons for special
treatment, unless there are special circumstances for
doing so. !Justice is thus an ideal concept. It is like
truth.Law helps judges to pursue justice. Justice is also the
conscience of the while of society. Justice includes
individual liberty for achieving individual and social
welfare. At the same time, justice confines such liberty
within limits, consistent with the general welfare of
mankind. Salmond defines the administration of justice
as ‘the maintenance of right within a political
community by means of the physical force of the State’. It
includes all the aspects connected with the administration
of justice, not merely with the filing of cases in a Court but
pronouncement of judgements and their execution. "One
of the essential functions of the State is the
administration of Justice. Law being the instrument of
justice, Courts of Justice are also Courts of law, because
justice has to be rendered according to law. There may not
be any necessity of the administration of justice in a
utopian form of society, but in the present materialistic
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world, it is impossible to live without the machinery of
justice. Administration of Justice, thus, must be regarded
as a permanent and necessary element of civilisation and
as a device that admits of no substitute
*Kinds of obligations -
(a) Sole Obligation - Sole obligation is one in which there
is one creditor and one debtor. e.g. A promise to B to pay
$100. In this example, there is only one creditor and one
debtor.
(b)Solidary Obligation - In case of Solidary Obligation
there are two or more debtors owe the same thing to the
same creditor. In solitary obligation, there are two or more
debtors owe the same thing to the same creditor. that
means there are two or more creditors entitled to the
same obligation or two or more debtors under the same
liability.
Kinds of solidary obligations -
In English law, solitary obligations are three distinct kinds
which are:
(a) Several solidary obligations -
Solidary obligations are several when, Although the thing
owed in the same in each case, there are as many distinct
obligations and causes of action as there are debtors.

(b) Joint solidary obligation -

Solidary obligations are joint when though there are two
or more debtors, there is only one debt or other cause of
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action, as well as only one thing owed. The creditor must
sue all of them and release of one operates as a release of
others. For example when a Firm contracts a Debt all the
partners are jointly liable. In English law, the liability of
joint debtors is joint while in India it is joint and several

(c) Joint and several solidary obligations -

Certain solidary obligations are both joint andn several.
These obligations stand Midway between the above two.
In this the creditor can sue one, some or all of them and
release of one will not operate as a release of all other
feasors. for example liability of joint tort committing the
Tort jointly or two or more trustees jointly committing the
same breach of Trust or joint debtors under Indian law.

*The law of Procedure:

Although the distinction between substantive law and
procedure is sharply drawn in theory, there are many
rules of procedure which in their practical operation are
wholly or substantially equivalent to rules of substantive
law. In such cases the difference between these two
branches of the law is one of form rather than of
substance. A rule belonging to one department may by a
change of form pass over into the other without materially
affecting the practical issue. In legal history such

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transitions are frequent, and in legal theory they are not
without interest and importance.
Law can be further divided into two broad categories –
1. Substantive laws
2. Procedural laws.
They form the two major branches of law.
Substantive laws are the statutory laws passed by the
legislature. Whereas, procedural laws comprise the rules
and processes which any court follows for hearing and
determining the cases.
Procedural laws are also known as ‘Adjective laws’. In
absence of substantive laws, procedural laws cannot be
framed. Similarly, without procedural laws, substantive
laws cannot be applied fairly and properly. Both the laws
are equally important and one could not be applied
effectively in absence of the other law.
In the case of Commissioner of Wealth Tax, Meerut v.
Sharvan Kumar Swarup and Sons (1994), the Supreme
Court of India made the distinction between substantive
and procedural laws clear.
The Court defined substantive laws as the laws which fix
duties and establish rights and responsibilities among and
for natural or artificial persons, while procedural laws are
those which prescribe the methods in which such rights

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and responsibilities may be exercised and enforced
respectively.
Substantive laws
Substantive laws define the rights and responsibilities in
civil law and crimes and punishments in criminal law.
Substantive laws are codified in legislated statutes or may
be practised or modified through precedent, especially in
the common law system. These laws can also be enacted
through the initiative process. Substantive laws refer to
the actual claims and defences to refer to in any particular
case. Eg- The Indian Succession Act, 1925 is an Act
dealing with the substantive laws of testamentary and
intestate succession concerning the persons who follow
any forms of Christianity in India.
Nature of substantive laws
1) Substantive laws deal with those areas of law which
establish the rights and obligations of the individuals
and what individuals may or may not do.
2) These laws have independent power to decide any
case.
3) Substantive laws dictate the legal context of any
crime such as how the case will be handled and what
specific punishments to be given for any crime.
4) Statutory laws or precedents in the common law
system are substantive laws.
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5) Substantive laws deal with the legal relationship
between individuals or the legal relationship between
an individual and the State.

Sources of substantive laws

1. the principles in Common laws which already exist,
codified statutory laws
2. Constitution
3. judicial precedents in cases with similar facts and
circumstances.

*Procedural laws:
In contrast to substantive laws, procedural laws, also
known as Adjective Laws, are the laws which act as the
‘machinery’ for enforcing rights and duties. Procedural
laws comprise the rules by which a court hears and
determines what happens in civil, criminal or
administrative proceedings, as well as the methods by
which substantive laws are made and administered. The
rules are designed to ensure a fair and consistent
application of due process and fundamental justice to all
cases before any particular court.
The validity of the substantive laws is tried and tested
through the procedures of the procedural law. In the
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context of procedural laws, the rights may not
exhaustively refer to the rights to information, rights to
justice, rights to participate and general civil and political
rights. Procedural laws are made to ensure the best
distribution of judicial resources. All procedural laws are
made following the due process of the law.
Nature of procedural laws
1) Procedural laws lay down the ways and means
substantive laws can be enforced.
2) They do not carry any independent powers to decide
any case.
3) These laws are applied in the legal procedure which
sometimes may be used in non-legal contexts, such as
filing any suits or the manner any case will proceed.
4) These laws are enforced by the Acts of Parliament or
implemented by the government.

Sources of Procedural Laws:

The primary source of procedural laws is the Constitution.
Other sources of procedural laws include:
1. Statutes enacted by the legislature;

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2. Written regulations for employees of various law
enforcement agencies. These regulations cannot be
considered as laws but violating them results in
taking internal actions.
3. Various rules, procedural guidelines and rulings of
cases laid down by the Supreme Court.

*Evidence:
It is an important aspect of any case in a court of law
because every allegation or demand in court has to be
supported by some evidence otherwise it will be
considered baseless. The word ‘Evidence’ has derived
from the Latin expression ‘Evidens Evidere’ which means
the state of evidence being plain, apparent, or notorious.
In Indian law, evidence has been given a more definite
meaning and is used only in its first sense. Thus going by
the act, it can be concluded to say that the word ‘evidence’
means only those instruments through which suitable and
appropriate facts are brought before the Court and by the
help of which the Court is convinced of these facts.
Therefore, even matters other than the statements of
witnesses and documents provided for the inspection of
the Court like any confession or statement of any accused
person in the course of a trial.

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Also, it should be noted that statements given by parties
when examined otherwise than as witnesses, the
demeanour of the witnesses, consequences of the local
investigation or inspection, and material objects other
than documents such as weapons, tools, stolen property,
etc, will not be considered evidence according to the
definition of evidence given under Indian law.
*Types of Evidence
According to the definition given in the Indian Evidence
Act, evidence can be divided into two categories:
A.Oral Evidence: Oral evidence renders to the evidence
that is mainly words spoken by mouth. It is adequate to be
proved without the support of any documentary evidence,
provided it has credibility. Primary oral evidence is the
evidence that has been personally heard or seen or
gathered by the senses of a witness. It is called direct
evidence as defined by Section 60 of the Indian Evidence
Act. Oral and documentary evidence can be divided into
two categories:
1) Direct or primary;

2) Indirect or hearsay or secondary.

1)Direct or primary evidence

Direct Evidence is acknowledged as the most important
evidence required for deciding the matter in issue. Direct
evidence directly proves a fact or disapproves of the fact
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by its virtue. In the case of direct evidence, a particular fact
is accepted directly without giving any reason to relate to
the fact. One does not even need to point out the
illustration provided as the evidence given by the witness
in the court of law is the direct evidence which is sufficient
enough to prove the matter as against the testimony to a
fact proposing guilt.

2) Indirect evidence

Indirect evidence is that evidence which proves the facts

in question by giving other facts that are indirect evidence
and afterwards, proving their relevance to the issue. The
deduction that can be drawn is from such evidence by
connecting a series of other facts to the facts in question.
These indirect facts must have been related to the facts in
question and have a cause and effect connection.

B.Documentary Evidence:
Documentary evidence is the evidence that mentions any
issue described or expressed upon any material by way of
letters, figures or marks or by more than one of the ways
which can be used for recording the issue. Such evidence is
presented in the form of a document to prove a disputed
fact in court.

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