English Jurisprudence

English jurisprudence Q1. Define Jurisprudence? Explain practical value of jurisprudence. 1. Introduction: The study of jurisprudence started with the Romans. The definitions gives by the Roman jurists are vague and inadequate but they put forth the idea of a legal science. Every jurist has its own notion of the subject matter and the proper limits of jurisprudence depends upon his ideology and the nature of society. The world jurisprudence used is different languages in different senses. In French it refers “case law”. These has been a shift during the last one century and jurisprudence today is envisaged in more broader sense than it had understood in Australia age. 2. Meaning Of Jurisprudence: The term jurisprudence is derived from the Latin word “Jurisprudentia” which means either “Knowledge of law” or “skill in law” . 3. Definition Of Jurisprudence: It is definition to give a universal and uniform definition of jurisprudence. Following definitions have been givens by the leading jurists. I. Austin’ s Definition: Austin defines jurisprudence as “ the philosophy of positive law” positive law laid down by a political superior for controlling the conduct of those subjects to his authority. A. Divisions Of Jurisprudence By Austin: Austin divided the jurisprudence into following: (i) General Jurisprudence (ii) Particular Jurisprudence (i) General Jurisprudence: General Jurisprudence includes such subject or ends of law as are common to all systems. (ii) Particular Jurisprudence: Particular Jurisprudence is the science of any actual system of law or any portion of it. B. Criticism On Austin’ s Definition: Salmond’ s criticism: The error in Austin’ s idea of general jurisprudence lies in the fact that he assumes that unless a legal principal is common to many legal systems, it cannot be dealt within general jurisprudence. There may be many schools of jurisprudence but not different kinds of it. Holland’ s Criticism Holland’ s points out that it is only the material which is particular and not the science itself. II. Holland’ s Definition Of Jurisprudence: Sir Thomas Erskine Holland defines Jurisprudence as “The formal science of positive law”. A. Analysis Of Holland’ s Definition: According to Holland, Jurisprudence is not a material science. Holland follows the Austin’s definition but he adds the term “formal” which means “that which concerns only the form and not its essence”. He says that jurisprudence is only a formal science i.e., a science which describes only the form or the external side of the subject and not its internal contents. B. Criticism: By Gray: The real relation of jurisprudence to law is treated but how law is treated By Dr.Jenks: He observed that jurist can only recognize a law by its form, for it is the form which causes the manifold matter of the phenomena to be perceived but having got the form as it were,

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English jurisprudence on the operating table, has to dissect it and ascertain its meaning Jurisprudence is concerned with means rather than with ends, though some of its means are ends in themselves. III. Salmond’ s Definition: Salmond defines Jurisprudence as “The Science of Law”. By law he means the “law of the land” Or “civil”. Salmond uses the term Jurisprudence is two senses. (i) Generic sense: Generic jurisprudence includes the entire body of legal doctrines. In that sense, jurisprudence is of 3 kinds. (a) Expository or Systematic Jurisprudence: It deals with the contents of an actual legal system as existing law at any time, whether in past or in presents. (b) Legal History: It deals with the history of development of law. (c) Science of legislation: The purpose of the science of legislation is to set forth law as it be. It deals with the ideal of the legal system and the purpose for which it exists. (ii) Specific Sense: Specific jurisprudence deals with a particular department of legal doctrines. In this sense, it is also called theoretical or general jurisprudence . it is also defined as “the science of the first principal of the Civil Law.” In this sense, he divides the subject into 3 branches: (a) Analytical Jurisprudence (b) Historical Jurisprudence (c) Ethical Jurisprudence A. Criticism: It is submitted that Salmond had failed to give an accurate and scientific and also the divisions made by him of jurisprudence into general and particular raises a great deal of criticism as the Holland observes that these expressions should be discarded, as the science should be treated as incapable of being divided into these two branches. IV. Definition Of Jurisprudence At Present Juncture: The term jurisprudence may tentatively be described as any thought or writing about law and its relation to other disciplines such as philosophy, economics, anthropology and money others. 4. Scope Of Jurisprudence: There is no unanimity of opinion regarding the scope of jurisprudence. It may be discussed under the following three heads. I. Early Period: In the early period, jurisprudence has been so defined as to cover moral and religious percepts also and that has created confusion. II. Austinian Period: It was the Austin, who distinguished law form morality and theology and restricted the term to the body of rules set and enforced by the sovereign or supreme law-making authority within the realm. So the scope of jurisprudence was limited to the study of the concept of positive law only. III. Modern Period:

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English jurisprudence At present, there is a tendency to widen the scope of jurisprudence. The present view is that the limited. It includes all concepts human order and human conduct is state and society. View of P.B Mukherji : Jurisprudence includes political social, economic and cultural ideas. It covers the study of man in relation to state and society. View of Lord Redcliffe: Jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a philosophy of life. 5. Importance And Utility Of Jurisprudence: Jurisprudence in basically a theoretical subject but it also has a practical and educational value. The enumerated as under. (i) Remove the complexities of law: One of the task of jurisprudence is to construct concepts and make law more manageable and rational. (ii) Answers the new problems: Jurisprudence can teach people to look around them and realize that answers to new legal problems must be found by a consideration of the present social needs and not in the wisdom of the past. (iii) Grammar of Mind: Jurisprudence is the grammar of law. It throws light on the basic ideas and the fundamental principles of law e.g., negligence, liability etc. (iv) Training of Mind: Jurisprudence trains the mind to solve the difficult legal provisions in legal way. (v) Grasp on the subject: It helps is knowing and grasping the language, grammar, the basis of treatment and assumption upon which subject rests. (vi) Useful in Art of pleading and legislation: It helps legislators and the lawyer the proper use of legal terminology. It relieves them of the botheration creation of defining again and again certain expressions e.g., right, duty etc. (vii) To Interpret law: It helps the judges and the lawyers in ascertaining the true meanings of the law passed by the legislatures by providing the rules of interpretation. (viii) To study foreign law. It enable a lawyer to study foreign law because the fundamental principal are generally common to all systems of law. (ix) Importance under the light of different jurists: By Dr. M.J Sethna: The value of jurisprudence lies in examining the consequences of law and its administration on social welfare and suggesting changes for the betterment of the superstructure of laws. By M. Dias: The study of jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existence.

6. Conclusion: To conclude, I can say, that jurisprudence is the science of law and there are different methods of approach to it. The true purpose of the study of jurisprudence should not be

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English jurisprudence confined to the study of positive law alone but must include normative study, that deal with the improvement of law in the context of prevailing, socio-economic and political philosophies of time, place and circumstances. Q2. what is jurisprudence? Discus the scope of analytical, historical and ethical jurisprudence . Q. Define jurisprudence. What are its various kinds? Discuss the scope of analytical jurisprudence. 1. Introduction: The word jurisprudence is derived form the latin word “ jurisprudential” which means knowledge of law or skill in the law. Jurisprudence is a study of the fundamental legal principles. It may described as any thought or writing about law. Jurisprudence is been classified into different branches according to their approaches. 2. Definition Of Jurisprudence: I. According To Austin ‘’Jurisprudence is a philosophy of positive law’’ II.. According To Salmond: “ Jurisprudence is the science of civil law. By law he means the law of the land.” III. According To Keeton: “ Jurisprudence is the study and systematic arrangement of the general principles of law.” 3. Kinds Of Jurisprudence: Salmond divides jurisprudence into three kinds: I. Analytical II. Historical III. Ethical I. Analytical Jurisprudence: Analytical jurisprudence deals with the analysis of basic principles of law. It is not concerned with the past stages of its evolution. It is also not concerned with its goodness or badness. The purpose is to analyse and dissect the law of the land as it exists today. (i) Jurists Related with Analytical School: Jeremy bentham was the real founder of the English Analytical School. Later on Austin took over the analytical method. Other chief exponents are Sir William Markby. Amos, Holland, Salmond and prof. Hart. (ii) Scope of Analyatical Jurisprudence: According to salmond, scope of analytical Jurisprudence lies as follows: (i) Analysis of the concept of law. (ii) An examination of the relation between civil law and other forms of law. (iii) An analysis of the ideas of state, sovereignty and administration of justice. (iv) Study of sources of law. (v) Investigation of the theory of legislation, judicial precedents and customary law. (vi) An inquiry into the scientific arrangement of law into distinct departments along with an analysis of distinctions on which the division is based. (vii) An analysis of the concept of legal right. (viii) An investigation of the theory of legal liability in civil and criminal cases. (ix) An examination of other relevant legal concepts. (iii) Importance of Analytical Jurisprudence: The analytical jurisprudence brought about precision in legal thinking. It provided us with

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English jurisprudence clear, definite and scientific terminology. It delirberately excluded all external considerations which fall outside the scope of law. II. Historical Jurisprudence: Historical jurisprudence desls with the scientific study of evolution and development of principle of law. Historical jurisprudence is the history of the legal principles and conceptions of legal system. (i) Jurists related with Historical jurisprudence: Historical school was headed by savigny, montesqieu, rousseau etc.. (ii) Scope of Historical Jurisprudence: The scope of historical jurisprudence is as under: (a) It deals with law as it appears in its various form at its several stages of development. (b) It deals with the origin and development of those legal conceptions and principles which are so essential in their nature as to deserve a place in the philosophy of law. (c) It seeks to show the conditions that gave rise to the legal conceptions, to trace their spread and development, and to point out those conditions and influences which modifying them in the varying course of their existence. (iii) Importance of historical jurisprudence: The contribution of historical school is that law cannot be understood without an appreciation of the Historical jurisprudence is a movement for fact against fancy, a call for a return form myth to reality. III. Ethical jurisprudence: Ethical jurisprudence deals with the law as it ought to be in an ideal state. It investigates the purpose of law and the measure and manner in which that purpose is fulfilled. It concerns itself with the relation of law to certain ideals which law is meant to achieve. (i) Jurists related with Ethical Jurisprudence: The chief exponents of ethical jurisprudence are bentham, Hobbes Kant etc. (ii) Scope of Ethical Jurisprudence: According to salmond, a book of ethical jurisprudence may concern itself with all or any of the following matters: (a) The concept of law (b) The relation between law and justice (c) The manner in which law fulfills its purpose of maintaining justice. (d) The distinction between the sphere of justice as the subject-matter of law the other branches of right with which law is not concerned and which pertain to morals exclusively. (e) The ethical significance and validity of those legal concept and principles which are so fundamental in their nature as to be the proper subject-matter of analytical jurisprudence. 4. Qther Kinds Of Jurisprudence: At present time, following are also regarded as different kinds of jurisprudence: At present time, following are also regarded as different kinds of jurisprudence: I. Sociological jurisprudence II. American Realism III. Comparative realism IV. Comparative jurisprudence V. Synthetic Jurisprudence I. Sociological Jurisprudence: The sociological school devotes its attention not to the ethical content and of law but to the actual circumstances which give rise to legal institutions and which condition their scope and operation.

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English jurisprudence (i) Jurists related with sociological jurisprudence: The chief exponents of sociological school are monstesqieu, comte, spencer , duguit etc. (ii) Scope of sociological jurisprudence: The scope of sociological jurisprudence lies as under: (a) It was attempted to study to study law as seeking social origin of law and legal institutions. (b) Testing law as a given social phenomenon. (c) Judging law by its social utility. II. American Realism: The realist movement is a part of the sociological approach. It differs form the sociological school as it is a little concerned with the ends if law. It concentrates on a scientific observation of law in its making and working. The American realist movement is a combination of the analytical positivist and sociological approaches. The advocates of the realist movement concentrate on the decisions gives by law Courts. They not only study the judgments gives by the judges but the human factor in the judges and lawyers. They study the forces which influence judges in reaching their decision. III. Scandinavian Realists: The Scandinavian realists have played a vital but important part in the total rejection of natural law philosophy. They deny that rules of conduct can be compellingly deduced form immutable and inalienable principles of justice. IV. Comparative Jurisprudence: The comparative method considers the development of two or systems of law. By comparing the notions and ideas prevailing in any one system with those in another, it discovers those rules which are common to the legal system studied. V. Synthetic Jurisprudence: Knowledge is a synthetic whole and cannot be divided into water tight compartments. The necessity for synthetic jurisprudence arises form the fact that it is necessary to determine the truth form all aspects and form different angles. According to Dr. Sethna jurisprudence is the study of fundamental legal principles including their philosophical, historical and sociological basis and an analysis of legal concept. Prof. hall, Julius stone and dennis Liyod are great advocates of synthetic jurisprudence. 5. Conclusion: To conclude, I can say that there are many approaches of studying jurisprudence. Jurisprudence is a part of history, economics, sociology ethics and a philosophy of life. It has been classified into different kinds by various jurists. Apart form traditional approaches the new approaches are empirical and priori. The former proceeds form facts to generalization and the letter starts with a generalization in the light of which facts are examined. Q.3 Explain the theory of imperative law. Is moral law imperative? Discuss. 1. introduction: In the words of Prof. Dias, the positivist represented a reaction against the priori methods of thinking which turned away from the realities of actual law in order to discover in nature or reason the principal of universal validity. Positivist law and therefore they knows as positivist or analysts, and opposed to the theory of law. The idea that law as the command of sovereign was advanced firstly by Hobbes and then Bodin and Bentham etc. but found its chief expression in Austin, whose theory of law was contained in “The province of Jurisprudence” first published in 1832, and it is therefore also called as “Austin’ s of law”. 2. imperative Or Austin’ s Theory Of Law:

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English jurisprudence Austin says that law is a command which obliges a person to a course of conduct. It is laid down by a political sovereign, and enforceable by a sanction. 3. Features Of Imperative Theory: According to Austin, positive law has three main features: I. Command II. Sovereign III. Sanction I. Command: The first features of law is that it is a type of command. According to Austin: Commands are expressions of desire given by superiors to inferiors. (i) Laws are general commands: There are commands which are not. Austin distinguishes law from other commands by their generality. Laws are general commands, unlike commands given on parade grounds and obeyed there then troops. II. Sovereign: According to Austin, a sovereign is any person or body of persons, whom the bulk of a political society habitually obeys and who does not himself habitually obeys some other persons or persons. Characteristics of Sovereign: (i) Source of Laws: Sovereign is the source of law. Every law is set, by a sovereign persons or body of persons. (ii) Source of Power: Prof. Laski says that there are there implications of the definition of sovereignty given by Austin. The state is a legal order in which there is a determinate authority acting as the ultimate source of power. (iii) Indivisible Power: The power of sovereign is indivisible. It cannot be divided. Accordingly to Austin, there can only be one sovereign in the state. The totality of sovereign is vested in one person or a body of persons. (iv) Habitual obedient by People: The chief characteristic of sovereign lies in the power to exact habitual obedience from the bulk of the member of the society. III. Sanction: The term sanction is derived from Roman Law. According to Salmond “Sanction is the instrument of coercion by which any system of imperative law is enforced Physical force is the sanction applied by the state in the administration. 4. Criticism: Austin’ s theory of law has been criticized on many grounds. (i) Laws Before State: According to Historical School, law is prior to and independent of political authority and enforcement. A state enforced it becomes law because the state enforces it. (ii) Gunman Law: Some have criticized the positivist theory of law as a theory of gunman, as t makes no real distinction between a law and the command of bank-robber who points his gun at the bank clerk and orders him to give him money. Reply; This criticism over looks Austin’ s second requirement of law which requires that only that

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English jurisprudence command is law which is given by political superior or sovereign. (iii) Generality of Law: According to Austin, law is a general rule of conduct, but that is not practicable in every sphere of law. A law in the sense of Act of the legislature may be particular in the fullest sense of the word. A Divorce Act is law even if it does not apply to all persons. (iv) Promulgation: According to Austin, law is a command and that has to be communicated to the people by whom it is meant to be obeyed or followed but this is not essential for the validity of a rule f law. (v) Law as Command: According to Austin, law is a command of the sovereign but the greater part of a legal system consists of laws which neither command nor forbid things to be done e. g right to vote. (vi) Existence of Personal Commander: The term command suggests the existence of a personal commander. In modern legal systems, it is impossible to identify any commander in the personal sense. (vii) Refusal of Precedents as Laws: The bulk of the English law has been created by the decision of the Court. To describe the judges as delegates by the positivists is misleading. (viii) Sanction: The concept of sanction is also misleading as in modern democratic country, the sanction behind law is not the force of the state but the willingness of the people to obey the same. (ix) Sanction is not essential elements: Sanction is not an essential of law, as in civil law no such sanction is to be found. (x) Disregard of ethical elements: According to salmond, Austin’ s theory of law is one-sided and inadequatic. It disregards the moral or ethical elements in law. (xi) Not applicable to International Law: Austin’ s definition of law cannot be applied to international law that is to say that international Law is not an imperative law. The international law is not the command of any sovereign, yet it is considered to be law by all concerned. (xii) Not Applicable to constitutional law: Austin’ s definition of law does not apply to constitutional law which cannot to called commands of any sovereign. Constitutional law of a country defines the powers of various organs of the state. 5. Is Moral Law Imperative: Moral law has also been called the divine law, the law of reason, the universal or common law or eternal law. It is called the command of God imposed upon men. Natural law appeals to the reason of man. It dose not possess physical compulsion. It embodies the principles of morality. Natural or moral law exists only in an ideal state and differs from positive law of state. In Austin view of law morality altogether ignores therefore moral law is not an imperative law. 6. Conclusion: To conclude, I can says, that Inspite of criticism of Austin’ s theory of law, it cannot be denied that Austin rendered a great service by giving a clear and simple definition of law. He makers a distinction between what law is and what it ought to be. It seeks to define law not

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English jurisprudence be reference to its contents but according to the formed criteria which differentiate legal rules from other rules such as those of morals, etiquette etc. Q4. What is meant by the term general law and special law? 1iiusration the kinds of special law that stand outside the domain of the General law. 1. Introduction: In the words of Thurman Arnold “obviously law can never be defined with equal obviousness, however it should be said that the adherents of the institution must never up the struggle to define law.” According to salmond, the whole body of law can be divided into two parts, general and special law. General law consists of the general or ordinary law of the land. Special law consists of certain other bodies of legal rules which are so special and exceptional in their nature, or application that it is convenient to treat them as standing outside the general and ordinary law. 2. Division Or Classification Of Civil Law: Sir Johr Salmond classified the civil law into two parts: (a) General Law (b) Special Law I. General Law: The general law of a country is its territorial law, the which applies to all person, things, act legal rules which are taken judicial notice of the Courts whenever there is any occasion for their application. (i) Shapes of General law: General law is of three shapes : (a) Statute law (b) Equity (c) Common law (ii) Examples: Examples of general law are the law of contract or the Pakistan penal Code. II. Special Law: That part of the law which has no general application throughout country, but which is also enforced by the Courts is the special law. It consists of those legal rules which Court will not recognize of apply them as a matter of course but which must be specially proved and brought notice of the Courts by the parties interested in their recognition. (i) Illustration: The Court may not and ordinarily it does not Know, what a `particular custom is. The parties have to prove such a custom if they rely upon. 3. Kinds Of Special Law: Saimond refers to six kinds of special laws which falls outside the general law. (i) Local law: Local law is the law of the locality and not the general law of the country. It is of two types: (a) Local customary law (b) Enacted law (a) Local Customary Law: It is that law, which is derived form immemorial customs prevails in the particular locality of the state. (b) Enacted law: It means such law proceeding form local legislative authorities. (ii) The conflict of laws:

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English jurisprudence The conflict of laws is also known as Foreign law or private international law. Justice and expediency require sometimes that the municipal Courts apply a rule of foreign law to determine the right and liabilities of the litigants before it. (iii) Conventional law: Conventional law arises out of agreement between the parties who are subject to it e.g., rules of a club or Articles of Association of Company. (iv) Autonomic law: By autonomic law is that species of law which has its source in various form of subordinate legislative authority possessed by private persons and bodies of person. Such form of law is enforced in the Court but it is not general application e.g., law of universities, railway companies etc. (v) Martial law: Martial law is the law administered in the Courts maintained by military authorities. It is of three kinds: (a) It is the law for the discipline and control of the army itself and is commonly knows as military law. (b) The law by which the army governs in times governs times of war occupied territory, outside the realm. (c) The law which in times of war or other emergency, the army governs the realm itself in derogation of the civil law. (vi) International law as administrated in prize Courts: It is a special kind of law which is dealt by the prize Courts in the times of war. Prize law is that part of law which regulates the practice of the capture of the ships and cargoes at sea in times of war. Prize law is the branch of civil law. It has two characters. (a) It is international law because it prevails between nations. (b) It is civil law as it is administered in civil Courts. (vii) Mercantile Customs: Another kind of special law consist of the body of mercantile wage knows as the law merchant. The law relating to Hundis derives its origin form mercantile customs. 4. Conclusion: To conclude, I can say, that both general and special law are the parts of the law or corpus juris. According to Salomond, the test of distinction is judicial notice. By judicial notice is meant by knowledge which any Court possesses and acts upon as contrasted with any knowledge which a Court is bound to acquire on the strength of evidence produced for the purpose. In General law Gourt is bound to take a judicial notice while in special law it is not necessary. Q5. Bring out clearly points of distinction between question of law and question of fact. 1. Introduction: It is commonly said that all questions which arise for consideration in a Court of justice are of two kinds. They are either questions of law or of fact. It has been found to be very difficult to define the exact difference between law and fact. Law consists of the abstract rules and facts are the raw materials on the basis of which the law creates certain rights and duties. 2. Question Of Law: According to salmond, the term question of law is used in three distinct, thought related senses. I. In The First Sense

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English jurisprudence Questions Authoritatively Answered By Law: In first sense, it means a question, which the Court is bound to answer in accordance with a rule of law which has already been authoritatively answered by the Court. All other are questions of fact. It excludes the right of the Court to answer the question as he thinks fit. Illustration: Whether the holder of a bill of exchange has been guilty of unreasonable delay in giving notice of dishonor is a question of law to be determined in accordance with certain fixed principles laid down in the bills of Exchange Act. II. In The Second Sense Interpretation Of Statutory Provision: In the second sense, it means a question as to what the law is on a particular point. This arises in cases where a rule of law is ambiguous and requires determination. Transformation Of Second Sense Into First Sense: Once the provision has been authoritatively interpreted by the judge. It becomes a judicial precedent and a settled question of law. The question as to meaning of that provision is thus transformed from the second into first sense. III. In The Third Sense Questions To Be Answered By Judges: In the third sense, all question whose answers given by the judges and not the jury are questions of law. (i) General Rule: There is general rule that questions of law are for the judges and questions of fact are for the jury to decide. (ii) Exceptions: There are numerous exceptions to the general rule many questions of fact are withdrawn from the cognizance of the jury and answered by the judges. The interpretation of a document, though often a pure question of fact is within the province of the judge. 3. Question Of Fact: The term question of fact is also two different senses: I. Wider sense II. Narrow sense I. Wider Sense: In a Wider or general sense, all questions which are not questions which are not questions of law are questions of fact. According to Salmond: A question of fact means any question (i) Which is not previously determined by a rule of law. (ii) Other than question as to what the law is. (iii) Which is to be answered by the jury and not the judge. II. Narrow Sense: In a narrow sense, question of fact means only those questions which are not subject to judicial discretion. Judicial determines what is right, just and equitable. Illustration: The question as to whether the accused has committed the criminal act with which he is charged is a question of fact. 4. Mixed Question Of Law And Fact: Some questions are partly of law and partly of fact. Such questions are called mixed

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English jurisprudence questions of law and fact. If there is a dispute whether a partnership exists among certain parties or not. i) It is question of fact as to what is to what is the basic relationship between the parties. ii) It is a question of law whether the basic relationship between the parties constitute partnership in the eyes of law or not. 5. Transformation Of Questions Of Fact Into Law: As more and more cases are decided, identical decisions are given by the judges in those cases which have similar facts. Old case law is quoted in fresh cases so to a lesser extent, even question of fact are converted into questions of law. 6. Difference Between Question Of Law And Fact: According to Paton, however difficult it may be to define exact difference between law and fact, the distinction itself is fundamental for any legal system. (i) Relation: Question of law is purely related with the law. Question of fact is not related with the law. (ii)As to Proof: There is no need to prove question of law. Question of fact is needed to prove. (iii)As to conversion: Question of law cannot be converted into question of fact. Question of fact may be converted into question of law. (iv) Duty of Judge: In a question of law, is the duty of the Court to ascertain the law and decide to case accordingly. In a question of fact, it is the duty of the Court to weigh the evidence and then come to its conclusion. (v) As to Authoritatively Answered: Every question which has been authoritatively answered by the law is a question of law. Every question which has not been determined before and authoritatively answered by the law is a question of fact. (vi) Nature: Law consists of abstract rules which attempt to reduce to order the teeming facts of life. Facts are the raw materials on the basis of which the law creates certain rights and duties. 7. Conclusion: The sum up, I can say, that all matters and questions which come before a Court of justice are either of law or fact or judicial discretion. As the legal system grows, there is a tendency to transform question of fact, into those of questions of law. Even in questions of pure fact, there are already pre-determined and authoritative answers. Q6. Define legal rights. Rights in rem and rights in Personam (2001) Q. Explain the kinds of legal rights as classified by Salmond. 1. Introduction: There can be on duty without a right and According to Hibbert “a right is one person’ capacity of obliging others to do or forbear by means not of his own strength but by the strength of a third party. If such third parts is God, the right is Divine. If such third parts is the public generally acting though opinion, the right is moral. If such third parts is the stale acting directly or indirectly, the right is legal.”

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English jurisprudence 2. Definition Of Legal Right: The term legal right has been used in two senses: I. Restricted Or Popular Sense: (i) According to Gray: “A legal is that powers which a man has to take a person or person do or refrain form doing a certain act or certain acts, so far as the power arises form society imposing a legal duty upon a person or persons.” II. Wider Sense: In a wide sense, legal right include any legally recognized interest whether it corresponds to a legal duty or not. It is an addition or benefit conferred upon a person by a rule of law. 3. Kinds Of Legal Rights: Following are the kinds of legal rights: I. Perfect And Imperfect Rights: (i) Perfect right: According to salmond, a perfect right is one which corresponds to a perfect duty I .e., which is enforced by law. Example: A contract specically enforceable through the Court of law is an example of perfect right. (ii) Imperfect right: An imperfect right is that which is recognized by law but cannot be enforced by law due to some impediment. These may be turn into perfect rights. (i) Positive right: A positive right corresponds positive duty and the person subject to the duty is bound to do something. Example: ‘A’ borrows money to ‘B’. it is the right of ‘B’ that ‘A’ gave money back to ‘B’. (ii) Negative right: Negative right corresponds to negative duties. The enjoyment of negative rights is complete unless such interference takes place. Example: If I have some money in may pocket. I have a negative right against all others not to disturb it. III. Real And Personal Rights: (i) Real right: According to salomond, a real right corresponds to a duty imposed upon persons in general. It available against whole word. Real rights are generally a negative rights as the duties which can be expected form the whole world are of a negative character. Example: I have a right to be deprived of my life is a real right as it is available against the whole world. (ii) Personal right: A personal right corresponds to a duty imposed upon determinate individuals. It against a particular person. Personal rights are generally positive right as it imposes a duty on a particular person to do something. Example: I have a personal right to receive compensation form any individual who is any harms me. IV. Rights In Rem And Rights In Personam:

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English jurisprudence (i) Rights in Rem: It is derived form the Roman term action in Rem” . It is available the whole world Examples are rights of ownership and possession. My right of possession and ownership is protected by law against all those who those may interfere with the same. (ii) Rights in Personam: It is derived form the Roman term “ action in personam,” Right in personam corresponds to duty imposed upon determinate persons. Example: Rights under a contract are right in Personam as the parties to the contract alone are bound by it. V. Proprietary And Personal Rights: (i) Proprietary Right: The proprietary rights of a person include his estate, his assets and his property in many forms. They have some economic or monetary value. They possess both judicial and economic importance. Example: The right to debt, the right to goodwill etc. (ii) Personal right: Personal right pertain to man, s status or standing in the law. They promote the man, s well being. Personal rights possess merely judicial importance. Example: Right to life, reputation etc are personal rights. VI. Inheritable And Uninheritable Rights: (i) Inheritable Rights: Inheritable rights are those which survives its owners. Example: ‘A’ dies leaves his property him ‘B’ his legal heir becomes owner of such property. This is an inheritable right. (ii) Uninheritable right: A right is uninheritable if it dies with its owners e. g. personal rights die with its owner and cannot be inherit. VII. Rights In Repropria And Rights In Re Aliena: (i) Rights in Re Propria: Rights in Re propria are rights in one, s own property. These are complete rights to which other right can be attached. Example: The owner of a chattel has a right in re propria over it. (ii) Right in Re aliena: Rights is Re aliena are rights over the property of another person. These rights derogate form the rights of another person and add to the rights of their holder. Example: My right of way across the land another person is a right re aliena. VIII. Principal And Accessory Rights: Principal rights exist independently of other rights. Accessory rights are appurtenant to other rights and they have a beneficial on the principal rights. Example: ‘X’ owes money to ‘Y’ and he executes a mortgage deed in favour of ‘Y’. the debt is the principal right and the security in the form of mortgage is the accessory right.

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English jurisprudence IX. Legal And Equitable Rights: (i) Legal And Equitable Rights: Legal rights are those which were recognized by common Law Court e. g., right to vote etc. (ii) Equitable Rights: Equitable rights are those which were recognized by the Court of chancery. Example: The right of the mortgagor to redeem the property is regarded as a creation of the Courts of equity and is an equitable right knows as the equity of redemption. X. Primary And Secondary Rights: (i) Primary Rights: Primary rights are also called antecedent, sanctioned or enjoyment rights. These are those rights which are independent of a wrong having been committed. They exist for own sake. They are antecedent to be wrongful act or omission. Example: Right of reputation, Right to life etc. (ii) Secondary Rights: Secondary rights are also called sanctioning, restitutory or remedial rights. Secondary rights are a part of the machinery provided by the state of the redress of injury done to the primary rights. Their necessity arises on account of the fact that primary rights are very often violated by the persons. Example: Rights to obtain compensation for defamation to person. XI. Public And Private Rights: Public rights: (i) Public rights: A public right is possessed by every member of the public. It is between a state and the private individual e. g. , right to vote etc. (ii) Private right: A private right is concerned only with the individuals. Both the parties connected with the right are private persons e.g., contract entered into by two individuals. XI. Vested And Contingent Rights: (i) Vested right: A vested is a right in right in respect of which all events necessary to vest it completely in the owner have happened. No other conditions remains to be satisfied. Example: If a valid deed of transfer is executed by ;A; in favour of ‘B’, ‘B’ acquires a vested right. (ii) Contingent right:’ According to paton when part of the in vestitive acts have occurred, the right is contingent until the appening of all the facts on which the title depends.” Example: ‘A’ executes a deed in favour of ‘B’ according to which he entitles to the possession of certain property when attains the age of 21, the right is contingent right and it will be vested only when he attains the age of 21.s XII. Servient And Dominant Rights: A servient right is one which is subject to an encumbrance. The encumbrance which derogates form it may be contrasted as dominant. Example: “X” as the owner of certain house a right of way over the land of ‘Y’ , his neighbor. The house

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English jurisprudence of ‘X’ is the dominant heritage and ‘X’ is the dominant owner. The house of ‘Y’ is the servient heritage and ‘Y’ is the servient owner. XIII. Municipal And International Rights: (i) Municipal rights: Municipal right are conferred by the law of a country, it is enjoyed by the individuals living in a country. (ii) International rights: International rights are conferred by international law. The subject of the International rights are the persons recognized as such by International law. XIV. Rights At Rest And Rights In Motion: According to Holland, when a right is stated with reference to its ‘orbit’ and its “ infringement’, it is a right at rest. “Orbit’ means the extent of advantages conferred by such right and infringement means an act which interference with the enjoyment of those advantages. Causes by which rights are either connected or disconnected with persons are discussed under rights in motion. XV. Ordinary And Fundamental Rights: Some rights are ordinary and some are fundamental rights. The distinction between the two lies that fundamental rights are often guaranteed by the constitution i. e., right to life, liberty etc. XVI. Jus Ad Rem: A jus ad rem is a right to right. It is always a right in personam. Example: If ‘A’ sell his house to ‘B’. ‘B’ acquires a right against ‘A’ to have the house transferred to himself. 4. Conclusion: To conclude, I can say, that legal rights are those which are conferred by the state on certain individuals and imposes corresponding duties on others. It is enforced by the physical force of the state. It is been classified into different kinds according to their scope by various authors Q7. Explain the advantages and disadvantages of administration of justice. Q. What is the necessity of administration of justice? How would you distinguish between civil and criminal justice. 1. Introduction: “Administration of Justice is the firmest pillar of the Government. It is sovereign and cannot be violated with impunity.” (George Washington) The most essential functions of a state are primarily two, war and administration of justice. If a state is not capable of performing either or both of these functions, it cannot be called a state. The most important and primary purpose of law is to achieve justice and justice can be achieved through administration. 2. Definition Of Administration of Justice: (i) By Salmond: “The administration of justice implies the maintenance of right within a political community by means of the physical force of the stats.” 3. Necessity Of Administration Of Justice: In primitive times might was the sole right. Every man was his own judge. A person wronged would seek revenge by his own hands. To stop this loot it appears necessary that some strong tribunal should hold administration and now a state perform this function.

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English jurisprudence According to Jeremy Taylor: “A herd of wolves is quieter and more at one than. So many men, unless they all have one reason in them or have one power over them.” According to Hobbes: “Without a common power to keep them all in awe, it is not possible for individuals to live in society.” I. Reasons for Administration of Justice: Following are the reasons for the necessity of administration of justice. (i) No common reason among men:’ According to salmond, men do not have one reason in them and each is moved by his own interests and passions. The only alternative is one power over men. (ii) Man is fighting animal: Man is by nature a fighting animal and force is the ultima ratio of all mankind. (iii) To stop criminal minority: Force is necessary to stop the criminal minority and prevent them from gaining an unfair advantage over the law-abiding majority in the state: (iv) Check Injustice; Without physical force, injustice is unchecked, and the life of the people is solitary, poor nasty and short. (v) Man is a social animal: The social nature of the man demands that he must live in society. While living so, man must have experienced a conflict of interests and that created the necessary for providing the administration of justice. 4. Origin Administration Of Justice: The origin and growth of administration of justice is identical with origin and growth of man. The social nature of man demands that he must live in society. While living so, he must have experienced a conflict of interests and that created the necessary for providing for the administration of justice may be divided into three stages. I. First Stage: At the first stage personal vengeance was allowed every man carried his life in his hands. He was liable to be attacked at any time and he could resist by overpowering his opponent. At the stage, every man was the sole measure of right. II. Second Stage: The second stage started with the rise of political states. However those states were not strong enough to regulate crime and inflict punishment on the criminals. The state merely regulated private vengeance and violent self-help. The state enforced the concept of “a tooth for a tooth”, “an eye for an eye” , “a life for life”. The state provided that a life shall not be taken for a tooth or for an eye. III. Third Stage: With the growth of the power of the state, the state began to act as a judge to assess liability and impose penalty. It provided punishment for private vengeance. The civil law and administration of civil justice helped the wronged and became a substitute for the violent self-help of the primitive days. At present administration of justice is a natural corollary to the growth in power of political state. 5. Classification Of Administration Of Justice: Administration of civil justice is divided into two parts: I. Administration of civil justice II. Administration of criminal justice

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English jurisprudence I. Administration Of Civil Justice: Administration of civil justice is dealt within civil proceedings. The object of civil justice is to enforce rights. Kinds of rights: There are two rights connected with the civil justice: (i) Primary (ii) Secondary (i) Primary Rights: Primary rights are those rights which exist as such. It arises our of a conduct. All fundamental rights are primary rights. A primary right may be enforced by specific enforcement. (ii) Sanctioning or secondary rights: Sanctioning rights are those which come into begin after the violation of primary right. Sanctioning rights are: The right to the compensated by damages by the wrong-doer. The right to exact the imposition of pecuniary penalty on the wrong doer by penal action. Illustration: ‘A’ enters into a contract his right if contract is broken, his right to damages for the loss caused to him for the breach of contract is sanctioning right. II. Administration of Criminal Justice: Administration of criminal justice is dealt within criminal proceedings. The object of criminal justice is to punish the wrong-doer. From very ancient time, a number of theories have been given concerning the purpose of punishment which may be broadly divided into two classes. The view of one class is that, the end of criminal justice is to protect and add to welfare of the state and society. The view of other class is that the purpose of punishment is retribution. 5. Distinction Between Civil And Criminal Justice: The difference between criminal justice and civil justice cannot be considered in terms of natural acts or the physical consequences of the fact. Following are the differences between civil and criminal justice. (i) As to Administration : Civil justice is administration according to one set of forms. Criminal justice according to another set of forms. (ii) Place of Administration: Civil justice is administered in one set of Courts i.e., civil Courts. Criminal justice is administered in different set of Courts i.e., criminal Courts. (iii) As to object: The object of civil justice is to enforce rights, The object of criminal justice is to punish the wrong. (iv) Proceedings: Civil justice is dealt within civil proceedings. Criminal justice is dealt within criminal proceedings. (v) Dealing: Civil justice deals with private wrongs. Criminal justice deals with public wrongs i. e, crimes against society. (vi) As to Parties: In civil proceedings, private individuals are parties i. se, plaintiff vs. defendant. In criminal proceedings state constitutes itself as a party i. e, state vs. accused.

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English jurisprudence (vii) Consequences: Civil wrong are less harmful. Criminal are more harmful. (viii) As to outcome: Civil proceeding result in judgment for damages etc. Criminal proceedings result in one or a number of punishment. (ix) As to Institution of Proceedings: In a civil wrong, the injured person need sue the wrong-doer. In a crime, the person injured cannot prevent proceeding begin taken to punish the wrongdoer for the state controls the procedure. 6. Advantages And Disadvantages Of Legal Justice: The legal justice has many advantages as well as disadvantages. I. Advantages: (i) Legal justice ensures uniformity and certainty in the administration of justice. (ii) Everyone knows what the law is and there is no scope of arbitrary action. (iii) The judges have to give decisions according to the declared law of the country. (iv) There is a impartiality in administration of justice. (v) Impartiality is secured in the administration of justice. (vi) Judges are required to give their decisions according to the per-determined legal principles and they cannot go beyond them. (vii) Law is already laid down and judges have to act accordingly. (viii) Legal justice represents the collective wisdom of the community and that is always to be preferred to the wisdom of any one individual II. Disadvantages: (i) One disadvantage is that it is rigid. (ii) Law has already been laid down in precedents. (iii) It is not always possible to adjust it to the changing needs of society. (iv) Society may change more rapidly than legal justice and may result in hardship and injustice. (v) Another defects of legal justice is its formalism or technicalities. (vi) Judges attach more importance to legal technicalities than they deserve. (vii) The legal justice is complex. Modern society is becoming more and more complicated if law is to serve its needs it has to be complicated. 7. Conclusion: To conclude, I can say, in the words of Prof. Sidgwick “In determining a nation’ s rank in political civilization, no test is more decisive than the degree in which justice as defined by the law is actually realized in its judicial administration.” The modern administration of justice is a natural corollary to the growth in power of political state, which began to act as a judge to assess liability and impose penalty. Q8 . What are the secondary functions of Court. Q . What are primary functions of Civil Courts. 1. Introduction: In a sphere of law. Court of law haw to perform two fold functions primary and secondary. The primary function of a Court of law is the administration of justice. It has to enforce rights and punish wrongs. But in addition to this , other functions are also performed by Court of law, which are known as secondary functions. 2. Function Of Courts Of Law:

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English jurisprudence The functions of Court of law may be classified into two categories. I. Primary Functions II. Secondary Functions 3. Primary Functions: The primary function of Court of law is the administration of Justice. I. Meaning Of Administration Of Justice: (i) According to prof. Salmond: “The administration of justice implies the maintenance of right within a political community by means of the physical force of the state.” (ii) According to George Washington: “Administration of justice is the firmest pillar of Govt. Law exists to bind together the community. It is sovereign and cannot be violated with impurity. II. Classification Of Administration Of Justice: Administration of justice is divided into two parts. (i) Administration of Civil Justice: Administration of Civil Justice is death with civil proceedings. The object of civil justice is to enforce rights. Kinds of rights: There are two rights connected with the civil justice (a) Primary (b) Secondary (a) Primary Rights: Primary rights are those rights which exist as such. It arises out of a conduct. All fundamental rights are primary rights. A primary rights may be enforced by specific enforcement. Illustration: If ‘A’ enters into a contract, his right to have the contract performed is primary right. (b) Sanctioning or Secondary Rights: Sanctioning rights are those, which come into being after the violation of a right sanctioning rights are The right to be compensated by damages by the wrong-doer. The right to exact the imposition of pecuniary penalty on the wrong-doer by penal action Illustration: ‘A’ enters into a contract, his right to have the contract performed is primary right. If contract is broke, his right to damages for the loss caused to him for the breach of contract is sanctioning right. (ii) Administration of Criminal Justice: Administration of criminal justice is dealt within criminal proceedings. The object of criminal justice is to punish the wrong-doer. Form very ancient time, a number of theories have been give concerning the purpose of theories have been given concerning the purpose of punishment, which may be broadly divided into two classes. The view of one class is that the end of criminal justice is to protect and add to the welfare of the state and society. The view of other class is that the purpose of punishment is retribution. 4. Secondary Functions: Courts are primarily established to perform the essential or primary functions, but once they established, they are also to perfrom secondary functions. These are miscellaneous and indeterminate in character and number and tend to increase with the advancing complexity of modern civilization. They fall chiefly into four groups.

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English jurisprudence I. Actions Against The State: The Courts of law can exercise adjudication, upon claims made by citizens against the state itself. A suit can be brought against the state for contractual liability etc. in England the crown Proceedings Act, 1947 provides that where a person has a claim against the crown, that claim can be enforced. In Pakistan claims may be put up against the state through the process of writ petitions , by virtue of Article 199 of the constitution of pak 1973. II. Declaration Of Rights: Another function of the Courts is the declaration of the rights of individuals. This is done where the rights of the parties are uncertain. A litigant may claim the assistance of a Court of law because his rights have been violated, but because they are uncertain. Examples: Examples of declaratory proceedings are the declaration of legitimacy and authoritative interpretation of wills. III. Administrations: In certain cases, Courts of justice undertake the management and distribution of the property of a deceased person and also of minors whose property is put under the Court of wards. Other examples are the administration of a trust, liquidation of a company by the Court etc. IV. Titles Of Right: In certain cases, judicial decrees are employed as the means of creating, extinguishing and transferring rights. Example of such functions are decree of divorce appointment of removal of trustees etc. in such cases, the judgments of the Courts operate not as the remedy of a wrong but as a title of right. 5. Conclusion: To conclude, I can say, that as the Lord Bryce writs “There is no better test of the test if the excellence of a Gov t then the efficiency of its judicial system “and judicial system is run through the Court of law. They have to perform primary and secondary functions, but the object of both these functions is the welfare of the citizen. Q9.punishment theory 1. Introduction: The most essential functions of a state are primarily two war and administration of justice administration of justice is classified into two parts, civil justice and criminal justice. The purpose of criminal justice is to punish the wrong-doer, who is punished by the state. On the question whether the purpose of punishment is the desire to make men better or to protect society, certain theories have been given by different jurists. 2. Meaning Of Punishment: Punishment may be regarded as a method of protecting society by reducing the occurrence of criminal behavior or we can consider it as an and itself. 3. Theories Of Punishment: There are certain theories behind the concept of punishment. I. Deterrent Theory: According to this theory, the object of criminal justice in awarding punishment is to deter the people from committing crimes again. According to Prof. Salmond: “Punishment is before all things deterrent and the chief end of the law of crime is to make

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English jurisprudence the evil-doer an example and a warning to all that are like minded with him.” According to Locke: The aim of punishment is not revenge but terror. An exemplary punishment should be given to the criminals so that the others may learn a lesson from him. Manu States: “Penalty keeps the people under control.” Criticism: There is a lot criticism of the deterrent theory of punishment in modern times: (a) Excessive harshness of punishment tends to defeat its own purpose by arousing the sympathy of the public towards those who are given cruel punishment. (b) Deterrent punishment is likely to harden the criminal instead of creating in him the fear of law. (c) Punishment loses its horror once the criminal is punished. II. Preventive Theory: In preventive theory, the offenders are disabled from repeating the offences by such punishment. Such as imprisonment, death, exile etc. this theory dose not act so much on the motive of the wrong-doer but disables his physical power to commit the offence. Prof. Paton States: The preventive theory concentrates on the prisoner but seeks to prevent him from offending again in the future. Example: An example of preventive punishment is the cancellation of the driving license of a person. Criticism: This theory has been criticized on following. (a) It hardens the first offender by putting him in constant association with the habitual offenders. (b) When offender puts in jail, it breeds more crime. III. Reformative Theory: According to this theory, the object of punishment should be the reform of the offender. Even if he commits a crime, he does not cease to be a human being. He must be educated and taught some art of industry during the period of his imprisonment so that he may be able to state his life agains after his release from jail. Prof. Jennings States: “Punishment not the revenge but to reform the offender.” Criticism: The view of Salmond on the reformation theory is that if criminals are to be sent to prison to be transformed into good citizens, prisons must be turned into comfortable dwelling places. The theory of reformative punishment alone is not sufficient and there should be a compromise between the deterrent theory and the reformative theory and the deterrent theory must have the last word. IV. Retributive Theory: In primitive times, punishment was mainly retributive. The person wronged was allowed to have his revenge against the wrong-doer. The principal of “an eye for an eye” a “tooth for a tooth” was recognized and following. The plato was a was a supporter of the retributive theory. Prof. Kant States: “Judicial punishment can never serve merely as a means to further another good, whether for the offender himself or for society, but must always be inflicted on him for the sole

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English jurisprudence reason that he has committed a crime.” Criticism: Critics points out to punishment in itself is not a remedy for the mischief. Punishment in itself is an evil and can be justified only on the ground that it is going to yield better result. V. Expiative Theory: This theory is similar to the idea of retribution. Expiation means the suffering or punishment for an offence. To suffer punishment is to pay a debt due to the law that is been violated. Lilly states: “The wrong whereby he has transgressed the law of right, has incurred a debt. Justice requires that the debt be paid that wrong be expiated.” Criticism: Justice Holmes writes “This passion of vengeance is not one which we encourage, either as private individuals or as law makers.” VI. Compensatory Theory: According to this theory, the object of punishment must be not merely to prevent further crimes but also to compensate the victim of the crime. The contention is that mainspring of criminality is greed and if the offender is made to return the ill-gotten benefits of the crime, the spring of criminality would dry up. Criticism: This theory has been criticized on the following points. (a) It tends to over simply the motives of crime. The motive of crime is not always economic. (b) Even in case of offences actuated by economic motives the economic position of the poor offender may be such that compensation may not be available. (c) If the offender is a rich person the payment of any amount may be not punishment for him. VII. Denunciatory Theory: This theory examines the crime from a moral points of view. View of Lord Dennings: The punishment to criminal adequately reflect the revulsion, hatred and condemnation must be felt by a majority of citizens. VIII. Utilitarian Theory: This theory does not highlight or support any particular theory, but is one of the biggest theories for basis of punitive measure. They believe that punishment is an instrument for reducing crimes no matter from what approach they are adopted. There is no restriction to which theory be applied, the purpose is to achieve good consequences. 4. Conclusion: To conclude, I can say, that a perfect system of criminal justice cannot be based on any one theory of punishment. Every theory has its own merits and every effort must be made to take the good points of all. The deterrent aspect of punishment must not be ignored, likewise the reformative aspect be given its due place. Q.10 Discuss custom as a source of law what are the requirements of a valid local custom as a source of law. Q. Explain briefly essentials of a valid custom as a source of law 1. Introduction : A study of ancient shows that law-making was not the business of the kings. Law of the country was to be found in the customs of the people which developed spontaneously according to circumstances. It was felt that a particular way of doing things was more

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English jurisprudence convenient then others when the same things was done again and again in a particular way, it assumed the of custom. According to salmond custom is the legal source of law. 2. Meaning Of Custom: (i) According to Salmond: “Custom is the embodiment of those principles which have commended themselves to the national and national conscience as the principles of justice and public utility.” (ii) According to Austin: :Custom is a rule of conduct which the governed observed spontaneously and not in pursuance of law set by political superior.” (iii) According to Holland: “Custom is .a generally observed course of conduct.” 3. Kinds Of Custom: Custom are of two kinds: I. Legal Custom II. Conventional Custom I. Legal Custom: According to Salmond, a legal custom is one whose legal authority is absolute, one which in itself and propria vigore possesses the force of law: (i) Kinds of legal Custom: Legal Custom is of the following kinds: (a) General Custom (b) Local Custom (a) General Custom: General customs are those which have force of law throughout the territory. The common law of England is based upon general customs of the realm. (a) Local Custom: The local custom are those which operate have the force of law in a particular locality. The authority of a local custom is higher than that of general custom. II. Conventional Custom: A Conventional custom is one whose authority is conditional on its acceptance in the agreement between the parties to be bound by it. There is a process by which conventional usage comes to have the force of law. Conditions to treat usage as custom: Certain conditions must be satisfied before a court is entitled to incorporate the usages into contracts. (i) The usage must be so well-established as to be notorious (ii) The usage must be reasonable (iii) Usage cannot alter general law of and land. (iv) A usage should not nullify or very the express term of the contract. Example: The law of negotiable instruments before it was embodied in the statute, was a part of the Law Merchant, which is conventional custom. 4. Requrement Of Valid Custom: Following are the requisites for a valid custom, treated are a law. I. Immemorial : A Custom to be valid must be proved to be immemorial. According to Blackstone:

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English jurisprudence “A custom in order that in may be legal and binding, must have been used so long that the memory of man runneth not to the contrary, so that if anyone can show the beginning of it, it is good custom.” II. Reasonable: Another essential of a valid custom is that it must be reasonable. The unreasonableness of custom must be so great that its enforcement results in greater harm than if there were no custom at all. According to Port. Allen : The unreasonableness of custom must be proved and not its reasonableness. III. Continuous: A custom must not continuously observed and if it has not been continuously and uninterruptedly observed, the presumption is that it existed at all. IV. Peaceable Enjoyment: The enjoyment of a custom must be a peaceable one. V. Certainty: A valid custom must be certain and definite, if there is any ambiguities in it or it keeps change, it is not a valid custom. VI. Compulsory Observance: A custom is valid if its observance is compulsory. An optical observance is ineffective. According to Blackstone: “A custom that all the inhabitants shall be rated towards the maintenance of a bridge, will be good, but a custom that every man is to contribute thereto at his own pleasure is idle and indeed no custom at all.” VII. General Or Universal: The custom must be general or universal. According to custom: “In the absence of unanimity of opinion, custom becomes powerless or rather dose not exist.” VIII. Not Opposed To Public Policy: A valid custom must not be opposed to public policy or the principles of morality. IX. Not Opposed With Statute Law: A valid custom must be conflict with the statute law of the country. According to Coke: “No custom or prescription can take away the force of an Act of parliament.” X. Consistent With Each Other: According to Blackstone customs must be consistent with each other , one custom cannot be set up in opposition to another. 5. Binding Force Of Custom: When the custom is given the force if law, it becomes binding. I. Theories Regarding Transformation of Custom Into Law: There are two theories regarding the question as to when a question is transformed into law: (i) Historical theory (ii) Analytical theory (i) Historical theory: According to the historical theory , the growth of law dose not depend upon the arbitrary will of any individual. It dose not depend upon any accident. It grows as a result of the intelligence of the people. Custom is derived form the common consciousness of the people.

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English jurisprudence According to puchta: Custom is not only self-sufficient and independent of state imprimatur but is a condition to all sound legislation. Criticism: According to paton: The growth of most of the customs is not the result of any conscious thought but of tentative practice. According to Allen: “All customs cannot be attributed to the common consciousness of the people. In many cases, customs have arisen on account of the convenience of the ruling class.” (ii) Analytical theory: Austin , Holland, and Gray are the advocates of analytical theory. According to Austin: Customs is a source of law and not law itself. Customs are not positive laws until their existence is recognized by the decisions of the Courts. According to Holland: Customs are not laws when they arise but they are largely adopted into laws by state recognition. Criticism: By Allen: Custom grows by conduct and it is therefore a mistake to measure its validity solely by the elements of express sanction, accorded by Courts of law of by other determinate authority. II. Reasons For Custom Is Given The Force Law: Following are the reasons, why custom is given the force of law. (i) Principles of national conscience: Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of truth, justice and public policy. According to Salmond: “Custom is to society what laws is to the state. Each is the expression and realization of the measure of man , s insight and ability, of the principles of right and justice.” (ii) Expectation of continuance: Another reason for the binding force of custom is the expectation of its continuance is the future. Justice demands that this expectation should be fulfilled and not frustrated. (iii) Observance by a large number of people: Sometimes a custom is observed by a large number of persons in society and in course of time the same come to have the force of law. Example: In every bill of exchange there is custom of giving three days of grace. (iv) Interests of Society: Custom rests on the popular conviction that it is in the interests of society. This conviction is so strong that it dose not found desirable to go against it. (v) Useful to the law giver: According to paton: Custom is useful to the law-giver and codifier is two ways. It provides that material out of which the law can be fashioned. There is a tendency to adopt the maxim whatever has been authority in the past is a safe guide for the future. 6. Conclusion:

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English jurisprudence To conclude, I can say, that custom is an important source of law. It lie in the foundation of all legal systems. They come into existence with the existence of society. Howere with the passage of time, the importance of custom began decline, the judgments of the Courts began to cove some of the fields previously occupied by custom. Modern looks to legislature for enacting at a speed which is demanded by the atomic age. Q11. what do you understand by subordinate legislation. Discuss its chief forms. Q. Define legislation. Distinguish between supreme and subordinate legislation. 1. Introduction: The term legislation is derived from Latin words “legis” meaning law and “latum” meaning “to make”. Legislation means the making or setting of law. In wider sense, the term legislation is used to include all methods of law-making but in a restricted sense, it includes every expression of the legislation whether the same is directed to the making of law or not. The law that has its source in legislation is called enacted law, statute law or written law. 2. Definition Of Legislation: I. According To Salmoned: “Legislation is that source of law which consists in the declaration of legal rules by the competent authority.” II. According To Gray: “Legislation means the formal utterance of the legislative organs of the society.” III. According To Holland: “The making of general orders by our judges is as true legislation as is carried on by the crown.” 3. Legislation As Source Of Law: Legislation as a source of law many be discussed by analyzing the following approach. I. Analytical Approach: The view of the analytical school is that typical law is a statute and legislation is the normal process of law making. They neither approve of the usurpation of the legislative functions by the judiciary, nor considered custom as a source of law. II. Historical Approach: The view of the Historical school is that legislation is the least creative of the sources of law. It has no independent creative role at all. Its only legitimate purpose is to give better from and made more effective the custom. Criticism: Both analytical and Historical school go to extremes. The mistake by the analytical school is that, it regards legislation as a sole source of law and does not attach any importance to the custom and precedent. The mistake of the Historical school is that, it does not regard legislation as a source of law. According to Dean Pound: Legislation is of two types, organizing and creative. The existence of the creative cannot be doubted in modern times when there is abnormal legislative activity. 4. Kinds Of Legislation: According to Prof. Salmond, Legislation is of two kinds: I. Supreme legislation II. Subordinate Legislation I. Supreme Legislation: Supreme legislation is that which proceed from sovereign power in the state. It cannot be repealed, annulled or controlled by any other legislative authority.

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English jurisprudence According to Austinian Theory: It is logically impossible for there to be any legal limitations on the sovereign authority. Sovereign on Austin’ s definition owes obedience to on one. Example: In England, Parliament is the supreme legislation authority. An Act of parliament cannot be held void for unreasonableness or it seems upon any other ground. II. Subordinate Legislation: Subordinate legislation is that which proceed from any authority other than the sovereign power and is therefore dependant for its continued existence and validity on some superior authority. Example: Legislation made by the Municipal corporation is the subordinate legislation. A. Kinds Of Subordinate Legislation: Salmond mentions five chief forms of subordinate legislation. (i) Colonial legislation: The laws made by the colonies and other dependencies of crown subject to the control of imperial parliament. However it is be noted, that after passing of the statute of West Minster of 1931, the dominion legislation have been powers to make may any law they please. (ii) Executive legislation: The laws made by the executive body in order to regulate the administrative functions of the state. The executive may also frame detailed rules and legislation as supplementing the statutory provisions of the legislature. There are certain checks or control on executive legislation vir. (a) Parliamentary control which can modify, amend or refuse altogether the powers. (b) Parliamentary supervision (c) Judicial control (d) Power must be handed over to trustworthy persons. (e) Public opinion (f) Experts opinion (iii) Judicial legislation: The superior Court are given limited powers to make general rules for the regulation of their own procedure. It is true legislation in the true sense to the term e. g., High Court rules and regulations. (iv) Municipal legislation: Municipal authorities are also allowed to make bye-laws for limited purpose within their areas. These are binding upon the people generally and offences against these by-laws are punishable. (v) Autonomous Legislation: These are the formal utterances of private persons or groups of them who are given a limited legislation authority to make laws touching matters which concerns themselves e. g, laws made by universities etc. Both salmond and Gary have held that autonomous legislation it not properly speaking statutory law of the state at all, although it is law within the community which has imposed it. 5. Conclusion: To conclude, I can say, that legislation consist in the declaration of legal rules by a competent authority conferring upon such rules, the force of law. It is either supreme or subordinate and difference between these two lies in a fact that the supreme legislation

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English jurisprudence proceeds from the sovereign in the state while the subordinate legislation is dependent for its existence and validity on such sovereign authority. Q12 . Discuss different kinds of precedents. 1. Introduction: Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. A judicial precedent is one precedents contains I itself a principle of law. Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries . the common law of England has been built up the decisions of England judges. There are so many reasons why precedents operates as an authoritative source of law and it also has many kinds according to its probative force. 2. Definition Of Precedent: I. According To Prof .Osborn: “Precedent is a judgment or decision of a Court of law cited as an authority for deciding a similar set of facts.” II. According To Prof. keeton: “A judicial precedent in a judicial decision to which authority has in some measure been attached.” 3. Nature Of Precedents: A precedent is purely constitutive and in no degree abrogative. This means that a judicial decision can make a law but cannot alter it. Where there is a settled rule of law, it is the duty of the judges to follow the same. 4. Binding Authority Of precedents : The binding authority of precedent is based on the principle of stare decisis, which means (i) To abide by the law already decided (ii) To follow the law already decided 5. Reasons For Binding Authority Of Judicial Precedents: Following are the reasons why precedents have been given the binding authority: (i) Justice is administered by a body of judges. (ii) The judges being legal experts are pre-eminently fixed to lay down the law of the bar. (iii) A case once decided in presumed to be correct so long as it not reversed by the higher Court. (iv) The rule that the law as laid down in previous case must be followed induces confidence in the minds of litigants. (v) That which is delivered in judgment must be taken for established truth. (vi) Law becomes certain and known. (vii) It is conducive to social development administration of justice becomes fair. (viii) Precedents is proof of custom. (ix) It promotes uniformity and certainty of legal administration. (x) It shows respect for the opinions and decisions of one , s predecessors. (xi) That convenience demands once a question is decided it should not be reargued every time it arises. 6. Kinds Of Precedents: Following are the different kinds of precedents: I. Authoritative and persuasive II. Declaratory and original I. Authoritative And Persuasive: (i) Authoritative precedents:

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English jurisprudence According to Salmond an authoritative precedent is one which judges must follow whether they approver of it or not. These are the legal sources of law and establish law in pursuance of definite rule of law which confers upon them that effect. Kinds of Authoritative precedents: Authoritative Precedents are of two kinds: (a) Absolute Authoritative precedents (b) Conditional Authoritative precedents. (a) Absolute Authoritative precedents: Absolute authoritative precedents are those which have to be followed by the judges even if they do not approve of them. Example: The decisions of the House of Lords are absolutely binding on all the Courts in England. (b) Conditional Authoritative precedents: A conditional authoritative precedent is one which though ordinarily binding on the Court to which it is cited, but is liable to be disregarded in certain circumstances. Example: The decision of the single judge of a High Court is absolutely authoritative for the subordinate judiciary but is only conditionally authoritative, if cited before the Division bench of the High Court. (ii) Persuasive precedents: A persuasive precedent is one which the judges are under no obligation to follow but which they will take into consideration. It is a historical source of law and will be followed only if its reasoning is sound flawless. Example: The decisions of superior of other countries I .e, India, England etc. II. Declaratory And Original Precedent: (i) Declaratory precedent: According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. The rule is applied because it is already law. (ii) Original Precedent: An original precedent is one which creates and applies a new law. It is law for the future because it is now applied. They along develop the law of the country. 7. Circumstances Which Destroy Or Weaken The Binding Force Of Precedents: There are certain exceptions to the rule that precedents are binding, which are as under: (i) Abrogated Decision: A decision ceases to be binding if a statute statutory rule inconsistent with it is subsequently enacted or if it is reversed or over-ruled by a higher Court. (ii) Affirmation or reversal on a different ground: A decision which affirmed or reversed on another point is deprived of any absolute binding force which it night otherwise have had. Example: A case is decided in High Court on ground ‘A’ and then goes on a appeal to the supreme Court which decided it on ground ‘B’ nothing being said upon ’A’ . it loses its binding force as far as the ground ‘A’ concerned. (iii) Ignorance of statute: A precedent is not binding if it was rendered in ignorance of statute or a rule having the force of statute i.e., delegated legislation.

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English jurisprudence (iv) Inconsistency with earlier decisions of higher Court: A precedent loses its binding force if it is inconsistent with the decision of higher Court. Example: If the high Court decides a case in ignorance of a decision of Supreme Court, the decision of High Court is not binding on any lower Court. (v) Inconsistency between earlier decisions same rank: Where authorities of equal standing are in conflict, a lower Court has the freedom to pick and choose between them. It loses its binding force. (vi) Precedents not fully argued: When a particular point involved in a decision is not taken notice of and is not argued by a counsel, the Court may decide in favour of one party, whereas if all the points had been put forth, the decision may have been in favour of the other party. Such a rule is not an authority on the point which had not been argued. K. Balkrishna Rao Vs. Haji Abdullah Sait: “It was observed that the binding force of the precedents dose not depend on whether a particular argument was considered therein or not provided the point with reference to which an argument was subsequently advanced was actually decided by the supreme Court.” (vii) Decisions of equally divided Courts: Where an appellate Court is equally divided, the practice is to dismiss the appeal and holds that decision appealed form is the correct one. (viii) Erroneous decisions: Decisions which are founded on wrong principles loses its binding force may be over-ruled by higher Courts; (ix) Decisions not followed for a long time: If a precedent is not following for a long time, its authority starts deteriorating. (x) Ex-parte decision: Decisions made in the absence of other party is an ex-parts decisions and such decisions weakens its binding force. (xi) Decisions criticized by lawyers etc.: Decisions which are criticized by the lawyers, judges etc., they tends to be weaken. 8. Conclusion: To conclude, I can say, that the precedents are an important source of law. The operation of precedents are an important is based on the presumption that judicial decisions are correct. Only that precedent is binding on the Court which is on all fours with the case before it. If the facts in both the cases are the same, the decision is said to be on authority. If the facts of the case are different and the judges merely acts on the analogy pervious rule, he expounds a new principle of law and his decision is said to be on principle. Q.13 What do you understand by Ratio Decidendi? Explain the factors that destroy or diminish its application. 1. Introduction : Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. It is an important source of law. A judicial precedent is one which contains in itself a principal of law. That underlying principal is termed as Ratio Decideni while other things which are said by the Court by the way or the statements of law and which are beyond the requirement of the particular case are termed as obiter Dictum. 2. Definition Of Precedent:

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English jurisprudence I. According To Prof. Osborn: “Precedent is a judgment or decision of a Court of law cites as an authority for deciding a similar set of facts.” II. According To Prof. Keeton: “A judicial precedent is a judicial decision to which authority has in some measure been attached.” 3. Ratio Decidendi: Ratio decidendi is a reason of which the judge decide the case. It describes the principal of the case. I. Definition: (i) According to Prof. Salmond: “A precedent is a judicial decision which contains in itself a principal. The underlying principal which turns from its authoritative element is often termed the ratio decidendi.” (ii) According to Repert cross: “A ratio decidendi is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.” II. Effect Of Ratio Decidendi: According to Salmond, the concrete decision is binding between the parties to it but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. The Court while deciding questions on principal have either to follow an already existing rule of law or if there is not authority to formulate some general rule and act upon it. III. Must Relevant To Case: In so formulating the rule judges must continue themselves to the requirements of the requirements of the case in hand. Prof. Salmond stated: “The only judicial principles which are authoritative are those which are thus relevant in their subject matter and limited in these scope.” IV. Rules Determining Ratio Decidendi: In Section 29 of Salmond on jurisprudence, rules determining ratio decidendi have been indicated. The material observations contained in the section 27 are as below. (i) Case decides Generally: What a case decides generally and as all the would is the ratio decidendi or rule of law for which it is authority. (ii) As between the Parties: What it decides between the parties includes for more than this. The law provides that once a case has been heard and all appeals have been taken, all parties to the dispute and their successors are bound by it and these matters are become “res judicata” between them and cannot be the subject of further dispute. (iii) As against persons not parties to suit: As against persons not parties to the suit, the only part of a case which is conclusive (with the exception of cases relating to status) is the general rule of law for which it is authority. This rule or preposition may be described roughly as the rule which the Court regarded as government the case. V. Methods Of Determining Ratio Decidendi: Different jurists have advanced different tests ascertaining the ratio decidendi. (i) Reversal Test: The Reversal test of Professor Wambaugh suggested that the ratio decidendi can be

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English jurisprudence discovered by reversing the preposition of law put forward by the Court and inquiring whether the decision would be the same notwithstanding the reversal. If it is the same then the preposition of law is no part of the ratio. The ratio is a general rule without which the case would have been decided otherwise. Criticism: Lord Simonds has pointed out defects in the Suggestion. In cases where a judge has given two alternative grounds for a decision. The test of Prof. Wambaugh would compel us to deny the case any ratio decidendi because whichever preposition was revealed the decision will stand on the other. (ii) Goodhart’ s Theory: According to Prof. Goodhart ratio decidendi is not the reason for the decision, for the reason may be bad and yet the case may come to be an authority. According to him the ratio decidendi is the conclusion reached by the judges on the basis of the material facts and on the exclusion of the immaterial once. He strictly falls in line with the views of the American professor. Oliphant who suggested that we should confine ourselves to only the decision and disregard what the judge has said in giving his decision Goodhart’ s theory implies that it is the deciding judge who decides what are the material facts and that these can be discovered by a perusal of the judgment. Criticism: It overlooks two points: (i) It is within the function of judges in subsequent cases to say what they choose to regard as the material facts of the earlier case. (ii) Two persons may agree as to a collection of individual facts and yet from different impressions of the group of them as a unit. 4. Obiter Dictum: All that is said by the Court by the way or the statements of law which go beyond the requirements of the particular case and which lay down a rule that is irrelevant or unnecessary for the purpose in hand are called obiter dictum. I. Definition Of Obiter Dicta: (i) Prof. Patterson Stated: Obiter dictum is a statement of law in the opinion which could not logically be a major premise of the selected factors of the decision.” (ii) Dr. Goodhart; s stated: “A conclusion based on a fact the existence of which has not been determined by the Court.” II. Force of Persuasive Precedents: The obiter dicta have the force of persuasive precedents only. In the course of his judgment a judge may let fall various observation not precisely relevant to the issue before him. The judges are not bound to follow them. They can take advantage of them but they are not bound to follow them. III. Advantages Of Obiter Dictum:’ Following are the advantages of obiter dictum: (i) Obiter dictum help in the growth of law. (ii) These sometimes help the cause of the reform of law. (iii) The judges are expected to know the law and their observations are bound to carry weight with the government. (iv) The defects in the legal system can be pointed out in the obiter dictum. (v) They serve to suggest solutions to problems not yet decided by the Courts. IV. Kinds Of Dicta:

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English jurisprudence According to Lord Sterndale Dicta are of different kinds and varying degrees of Weight. (i) Causal expressions of opinion: Sometimes they may be called almost casual expressions of opinion upon a point which has not been raised in the case and is not really present to the judge’ s mind. Such dicta though entitled to the respect due to the speaker, may fairly be disregarded by judges before whom the point has been raised and argued in a way to bring it under much fuller consideration. (ii) Deliberate expressions of opinion: Deliberate expressions of opinion given after consideration upon a point clearly brought and argued before the Court. It is open to other judges to give decisions contrary to such dicta but much greater weight attaches to them than to the former class. 5. Conclusion: To conclusion, I can say, that the decision given by the judges contains ratio decidendi i. e., the reasoning and sometimes the obiter dictum which are nothing but the observations of the judges on a particular point which is not strictly relevant to the point in-issue but which is helpful for the growth of law. Q14.Define legislation how it is

to precedent

1. Introduction: Law may be found to proceed form many legal sources. One of which is enacted law having its source in legislation and the other is case law having its source in precedent. As regards legislation, it has its source in the law making will of the state on the other hand, precedent has its source in the ratio decidendi and obiter dicta of the judicial decision. Both legislation and precedent has advantages over each other. 2. Definition Of Legislation: I. According To Salmond: “Legislation in that source of law which consists in the declaration of legal rules by the competent authority.” II. According To Gray: “Legislation means the formal utterances of the legislative organs of the society.” 3. Definition Of Precedent: I. According To Prof. Osborn: “Precedent is a judgment or decision of a Court of law cited as an authority for deciding a similar set of facts.” II. According To Prof. keeton: “A judicial precedent is a judicial decision to which authority has in some measure been attached.” 4. Advantages Of Legislation Over Precedents: Following are the advantages which legislation has over precedent. (i) Abrogative power: Legislation has abrogative power. It can abolish the existing law, which necessary for legal reform. Precedent dose not enjoy the abrogative power and it cannot reverse the existing law. (ii) Advantage of efficiency: In legislation, the doctrine of separation of power results in increased efficiency. The duty of making laws is reserved for the legislature, while that of interpreting it for the judiciary so in case of precedents, the functions of legislation and interpretation are combined and that is hardly desirable.

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English jurisprudence (iii) Satisfaction of principle of natural justice: Legislation satisfies the requirement of natural justice that laws shall be knows before they are enforced. Law is formally declared to the proper and will be subject to punishment if they violate the same. In case of precedent, it is created and declared in the very act of applying and enforcing it. (iv) Law for future cases: Legislation making rules for cases that have not yet arisen, but precedent must wait until the actual concrete incident comes before the Courts for decision. (v) Power to make anticipatory rules: New points may be arisen in both a statute and case law. There may be an omission which has to be made good or a doubt to be settled or a defect cured. Legislature can settle this in on time, when is existence is brought to its notice. But precedent must wait, until by chance, the very case arises or the decision is challenged in a superior Court. (vi) Superior in form: Legislation is superior in form to precedent. It is brief, clear easily accessible and knowable while the quest for the principle of law in a judicial decision entails a long search through multitudinous reports. (vii) General Supremacy over precedent: Legislation is a superior over precedent as law can be made against some precedent but the precedent cannot exist opposed to statute law. (viii) Suitable for fact changes: Legislation is some suitable for fast changes which time needed. According to prof Friedman “It will be difficult to deny that in modern circumstances development of law through precedent is slow, costly, cumbrous and often reactionary. It is therefore less suitable for a time of fast changes and restlessness. 5. Conclusion: To conclude I can say, that both legislation and precedent are equally important and one cannot achieve its object without the other. For a planned progress legislation is necessary. To interpret it and to apply and to adapt it to particular case, case , law is equally necessary. Both these sources contribute equally to the development of law.

Q15. Define person? Who is a person? Explain kinds of person Introduction: The word “Person” is derived from the Latin word “Persona”. To begin with, it simply meant mask then it was used to denote the part played by a man in life and then in the sense of a man who played the part. But now under a legal theory, a person is any being who is capable of sustaining rights and duties. At common law persons are divided into different kinds and different attributes given to them. 2. Definition Of Person: I. According To Salmond: “A person is any being whom the law regards as capable of rights or duties. Any being that is so capable is a person whether a human being or not so capable is a person even though he is a men.” II. According To Gray: “Person is an entity to which rights and duties may be attributed.” 3. Kinds Of Person: Following are the kinds of person as recognized by law:

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English jurisprudence I. Natural Person II. Legal Person I. Natural Person: According to Holland “A natural person is such a human begin as is regarded by the law as capable of rights and duties.” Natural persons are living human beings recognized as persons by the state. (i) Requisites of human being: Following are the requisites of normal human being: (a) He must be recognized as possessing a sufficient states to enable him to possess rights and duties. (b) He must be born alive. (c) He must possess essentially human characteristics. II. Legal Person: Legal persons are also knows as artificial, juristic or fictitious person. They are real or imaginary beings to whom personality is attributed by law by way of fiction, where is dose not exist in fact. They are also defined as those things, mass of property, group of human beings or an institution upon whom the law has conferred a legal status and who are in the eye of law capable of having rights and duties as natural persons. A. Essentials Of Legal Person: Following are the essentials of legal person: (a) Corpus: The corpus is the body into which the law infuses the “animus”, will or intention of a fictitious personality. (b) Animus: The animus which is the personality or the will of the person. B. Double Fiction: There is a double fiction in a juristic person: (a) By one fiction, the legal person is created or made an entity. (b) By second fiction, it is clothes with the will of a living being. C. Kinds Of Legal Person: There are three of legal persons: (i) Corporation (ii) Institution (iii) Fund or estate (i) Corporation: A corporation is an artificial or fictitious person. The individuals forming the corpus of the corporation are called its members. Conditions for the existence of corporation: Following conditions are necessary for the existence of a corporation: (a) There must be a group or body of human beings associated for certain purposes. (b) There must be organs through which the body or the group acts. (c) A will is attributed to a corporation by a legal fiction. Kinds of corporation: There are two kinds of corporation: (a) Corporation Aggregate (b) Corporation Sole (a) Corporation Aggregate: According to Halsbury’ s Laws of England

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English jurisprudence “A corporation aggregate is a collection of individuals untied into one body, under a special domination, having perpetual succession under an artificial from and vested by the policy of the law with the capacity of acting in several respects.” The number of corporation aggregate is very lager and they are of various kinds. For wxample registered company. Slamond vs. Salmond and Co. (1897): “In this case it was held that the company was a separate distinct entity.” (b) Sole corporation: Corporation sole is an incorporated series of successive persons. It is a corporation which has one member at a time. According to Dias and Hughes the main purpose of corporation sole is to ensure continuity. Moreover, the occupant of the office can acquire property for the benefit of his successor. A corporation sole in an example of dual personality. Example: Example of corporation sole are the offices of the post-master General, Auditor General and President of the Country. (ii) Institution: In some cases, the corpus or the object personified is not a group or succession of individuals but an institution itself. Example: College, Church, Laibrary, Mosque etc. (iii) Fund or estate: In some cases, the corpus or the object personified is some fund or reserved for a particular purpose. Example: Examples of this kind of legal persons are the property of a dead man, the estate of an insolvent, an estate under a trust etc. 4. Double Personality: Law recognized many different capacities in which a man may act. If a single human being has in one capacity, there arises a case of dual personality. The natural person may owe a duty to the legal person or he may have rights against him. The trustee as an individual may owe money to or enter into contract with himself in his capacity as a trustee. Example: A corporation sole is an example of dual personality. 5. Conclusion: To conclusion, I can say, that according to legal theory, only that being is designated as person who is capable of holding rights and duties irrespective of the fact whether he is human being or not. At common law persons are divided in two kinds by way of their existence by fiction or by fact. Q 16. What is the legal status of dead person?

1. Introduction: The word “Person” is derived form the Latin word “Persona” . to begin with, it simply meant a mask, than it was used to denote the part played by a man in life and then in the sense of a man who played the part. But now under a legal theory, a person is any being who is capable of sustaining rights and duties. Any being that is so capable is a person whether he

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English jurisprudence is a human being or not. 2. Definition Of Person: I. According To Prof. salmond: “A person is any being whom the law regards as capable of rights or duties. Any being that is so capable is a person, whether a human being or not and no being capable is a person, even though he is a man.” II. According To Gray: “Person is an entity to which rights and duties may be attributed.” 3. Legal Status Of Dead Person: The personality of human being commences its existence on birth and ceases to exist at death. Dead men are no longer persons in the eye of law. They have no rights because they have no interests. All that the law does is, it to some degree recognizes and takes into account after a man, s death his desires and interests when alive. I. Rights Of Dead Person: There are three things in respect of which the anxieties of living men extend even after their death. Those are his body his reputation and his estate. (i) Body: A living men is interested in the treatment to be given to his own dead-body. A corpse is the property of on one. It cannot be disposed of by will or any other instrument criminal law secures a decent burial for all dead men and the violation of a grave is a criminal offence. (ii) Reputation: The reputation of a person receives some degree of protection form criminal law. A libel upon a dead man is punished as a misdemeanor when its publication is an attack on the interests of living person. As a matter of fact this right is in reality not that of the dead person but of his living descendents. (iii) Property: A dead man continue to determine the enjoyment of the property, which he owned, while he was alive. The law of succession permits the desires of the dead person to regulate the actions of the living persons. In addition to this, whatever he has left behind to distributed as gifts or given in charity will be respect by law and enforced according to his wishes laid down is a proper document i.e., will deed. 4. Legal Status Of Unborn Person: Before discussing the status of unborn person, we must distinguish a child who is living in womb of its mother and an unborn child in the sense of future generations i.e., who is not conceived in the womb of its mother. The law given a statue of person to a child who is not yet been born but conceived in its mother’ s womb. According to coke: “The law in many cases hath consideration of him in respect of the apparent expectation of his birth,: I. Contingency Of Rights Of Unborn Person: The rights of unborn person whether proprietary or personal are all contingent on his birth as a living human being. II. Rights Of Unborn Person: Following are the rights of a unborn person. (i) Rights to Compensation: An unborn child is entitled to compensation for the death of his father, willful or negligent injury inflicted on a child in the womb. (ii) Rights to be born:

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English jurisprudence An unborn person has a right to be born and abortion and child destruction are declared as crimes to protect his right of him. A pregnant woman condemned to death is respited as of right until she has been delivered of her child. (iii) Right to Inherit: In unborn child may inherit, but if he dies in the womb or is still-born, his inheritance fails to take effect and on one claim thought him. (iv) Beneficiary of trust: An unborn child may be made beneficiary of the trust and such trust cannot be varied without obtaining the consent of the Court on their behalf. (v) Right to own: There is nothing in law to prevent a man form owing property before he is born. His ownership is contingent on his born alive and once born alive, his contingent ownership will become vested. (vi) Right to gift: A direct gift may be made to the child in womb. (vii) Right to Partition: In Hindu Law , if a partition is made, a share should be allotter to a child in the womb which is contingent on his as a living human being. 5. Legal Status Of Animals: I. Primitive View: Beasts were regarded as persons in the old days. There are examples in Greek law where they tried and punished for offences to human beings. II. Modern View: In modern law animals are not regarded as person, they are things. The only natural person are human beings and beasts are not person either natural or legal. They are merely things. III. Reasons For Incapability: Following are the reasons for incapability of animals as person. (i) Not subjects of rights: They are often the object of legal rights and duties but never the subject of them. (ii) Acts: Their acts are neither lawful nor unlawful. (iii) Subject-matter: They are not recognized by law as the appropriate subject-matter either of permission or prohibition. (iv) Incapability: A beast in incapable of legal rights as of legal duties. (v) Recognition: His interests are not recognized by law. (vi) Moral rights: They possess moral rights but those are not recognized by any legal system. (vii) Cannot be the owner: No animal can be owner of any property even through the medium of a human trustee. IV. Exceptions: There are two cases in which beasts may be thought to possess legal rights. (i) Cruelty to animals is a criminal offence. (ii) A trustee for the benefit of particular class of animals is made like broken down horses. Criticism: (i) Cruelty to animals is an offence not because of any love animals but because of the ill

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English jurisprudence effects produced in society by perpetuation of cruelty. (ii) The trust is crated for the protection and benefit not an individual animal but for a group as it is charitable and public trust. All these duties are contemplated by law not towards the animals but towards society. 6. Conclusion: To conclude, I can say, that according to the legal theory, only that being is designated as person who is capable of holding rights and duties, irrespective of the fact whether he is human being or not, existed or not. i.e., corporations, idols, dead and unborn child are the best examples of his concept of personality.

Q17. Distinguish between corporation and a firm. Introduction: The outstanding feature of a corporation is its independent corporate existence. A corporation is in law a person. It is a distinct legal persona existing independent of its members. By fiction of law, a corporation is a distinct entity, yet in reality it is an association of persons who are the beneficial owners of all the corporate property so a corporation on its own is liable to its acts. A corporation is different from the firm as the firm is not considered to be a legal person. 2. Definition Of Corporation: A corporation is an artificial or fictitious person constituted by the personification of a group or a series of individuals. 3. Meaning Of Firm: A firm is the relation between the person who have agreed to share the profits of a business carried on by all of them acting for all. 4. Difference Between Corporation And Firm: Following are the differences between corporation and firm. I. Legal Entity: Corporation is a separate legal entity apart from its members. A firm does not have corporate personality, so it is not a separate personality from its members. II. Liability: In corporation, liability of corporation and its members are different. In firm, partners are jointly liable. III. Legal Status: A corporation can sue and be sued. A firm cannot sue of its own name. IV. Duration: A corporation has a perpetual succession even if a member of it dies it continues. A firm has not perpetual succession. A firm can be extinguished by the extinction of any of its two members. V. Existence: A corporation can exist even with one member. This is not possible in the case of partnership firm. There must be more than one member of a partnership firm. VI. Contract With Members:

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English jurisprudence It is possible for a corporation to enter into a contract with its members. No firm can enter into a contract with its members. VII. Rights And Duties: A corporation can have rights and duties different from its members. This is not possible with the firm. VIII. Possession Of Property: A corporation can possess the property different from its members. The property of the firm is the property of the members. IX. Base Of Formation” The base of corporation is voluntary. Base of formation of a firm is based on the maxim “Consensus Of Idem”, which means consent of both the parties. If both the parties are consenter, they can from a firm. 5. Liability Of Corporation: A corporation is a separate distinct entity and this fact was firmly established in the leading case. “Salomon vs. Salomon and Co. Ltd (1897) A. C 22 “It was held that the company is at law a different person altogether from the subscribers of the memorandum.” The law provides that a corporation owns both civil and criminal liability, for the acts done by its agents within the scope of their employment. I. Civil Liability Of A Corporation: (i) As regards tortuous Act: A corporation is liable for the tortuous acts of its servants or agents if the act was done within the scope and course of employment and act was within the powers of corporation. This is the rule of vicarious liability. Citizens life Assurance Co vs. Brown (1904) A. C 423 “It was held that the corporation was liable for the tort of defamation on the ground that it was liable for the torts of its servants committed in the course of the employment.” (ii) As regards contractual liability: General Rule: Generally a corporation contracts under a seal and the presence of the seal is an evidence of the assents of the corporation. Exceptions: (a) An agent is bound to act within the scope of his authority if he wishes the act to bind the corporation. (b) The capacity of a corporation to act may be limited by the terms of its charter or by the statute creating it. In these cases, any attempt to perform an act beyond those powers would be ultra vires and would have of no legal effect. II. Criminal Liability Of A Corporation: Corporation cannot have a guilty intention necessary for a crime as a corporation has no mind of its own. But a corporation can be punished for the offences. This is so when a statutory duty is not performed by corporation or the same is performed badly in these cases punishment is usually by way of fine. (i) Elements necessary for criminal liability of corporation: According to Keeton “In crime, the occurrence of three elements is necessary before liability can be property attributed to the corporation.

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English jurisprudence (a) The crime must be one in which it is not necessary to prove a guilty state of mind in the person charged. (b) The act must be of a kind that the act or omission of the agent may also be said to be the act or omission of the corporation. (c) The punishment must be a fine at least as an alternative or some other punishment which may be inflicted on the corporation. 6. Conclusion: To conclusion, I can say, that corporation is a legal person and its liabilities are different from its members. A corporation is held responsible on the ground that it should not have selected careless and dishonest agents.

Q.18 Explain with illustration the object of legal right. Q . Define legal right. Explain its essential characteristics. I. Introduction: There can be no duty without a right and according to Hibbert “a right is one person ‘s capacity of obliging others to be or forbear by means not of his own strength but by the strength of a third party. If such third parts is God, the right is Divine. If such third party is the public generally acting through opinion, the right is moral. If such third party is the state acting directly or indirectly, the right is legal.” According to salmond, every legal has some essential to qualify as legal right. 2. Definition Of Legal Right: The term legal has been used in two senses: I. Restricted Or Popular Senses: (i) According to Gray: “A legal right is that power which a man has to take a person or persons do or refrain doing a certain act or certain acts. So far as the power arises form society imposing a legal duty upon a person or persons. (ii) According to Justice Holmes: “A legal right is nothing but a permission to exercise certain natural power and upon certain conditions to obtain protection, or compensation by the aid public force.” II. Wider Sense: In a wider sense, legal right include any legally recognized interest, whether it corresponds to legal duty or not. It is a addition on benefit conferred upon a person by a rule of law. 3. Essential Characteristics Of Legal Right: According to salmond, there are five characteristics or essential elements of legal right, though according to others, such as Keeton and Holland, there are only four characteristics, as for a title to them is only a source of a right and so not characteristic. (i) Vested in person: It is vested in person who is the owner of the right. He is the subject of the legal right and in sometimes described as the person of inheritance. The owner of a right need not be a determinate or fixed person. If an individual owes a duty towards society at legal, an indeterminate body is the subject of inherence. (ii) Available against person: It is available against a person who is bound by the correlative duty to respect that right. Such a person is called the person of incidence or the subject of the duty.

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English jurisprudence (iii) Content of right: Another essential element of a legal right is its content or substance. It may be an ‘act which a person bound by the duty has to do or it may be ‘forbearance’ on his part in favour of the person entitled to the right. (iv) Object of the right: The act or forbearance relates to something which is designated the object or subject matter of the right. (v) Title to the right: Another essential elements of a legal is the title to the right. Facts must how the right vested in the owner of the right. That may be by purchase, gift, inheritance etc. Illustration: A man buys a house form another. The buyer will be the person of inherence i.e., the owner of right and the seller and the other person generally the persons of incidence i.e., persons who are under a corresponding duty. The object of the right will be the house. The contents of the right is forbearance, non-interference with the exclusive use of the house. The title to the right is the fact of the sale the of the house. 4. Objects Of The Right: A right being a legally protected interest, the object of the right is the thing in which has his interest which he desires to take or obtain by means of the duty which the law imposes on other person. I. Views Regarding Nature Of Object: There is no unanimity of opinion as to whether every right must have an object or not. (i) According to one view: There are some writers who are of the view that there are some rights without objects. According to her the object of a right means some material thing to which it relates. In this sense, an object is not an essential element in the conception of right, and that rights can exist without and object e.g., a right to reputation. II. Classification Of Rights According To Their Objects: Slalomed refers to seven kinds of rights by reference to their objects. (i) Rights over material things. These are the most important legal rights in respect of their number and variety. Examples are one’ s right to own his car, house etc. (ii) Right in respect of one, s own person: A right to life, health, personal liberty and reputation fall within this class. Here the object is something immaterial. (iii) Right of reputation: There is also the right of reputation. By reputation we mean the good opinion that other person have about a person. A person has right not to be libeled. Such a right has obtained legal recognition and protection. (iv) Right in respect of domestic relation: There are rights in respect of domestic relation. Every person has an interest and in the society, affections and security of his wife and children. Here the object of the right is the affection and society of the other or by stretching the argument, the object can be the person to whose affection the owner of a right has a right to. (v) Right in respect of other rights: A right may have another right as its subject-matter. A Jus ad rem. There are writers like Gray who distinguish between rights to rights which can be specifically enforced and rights

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English jurisprudence or rights the violation of which gives rise only to some lesser remedy. Example: By a promise of marriage, a woman acquires a right to be married. She acquires the right of a wife on being actually married. (vi) Rights over immaterial property: There are rights over immaterial property and examples of such right are the patent rights, copy-rights, trade marks etc. the object of patent rights it an invention and the copy-right is the form of expression used by the another etc. (vii) Right to Services: There are right to services. There rights are created by the contract between two person. Such as master and servant, physician and patient, advocate and client etc. here the object of the right is the skill-knowledge, strength, time etc. Example: If a physician is hired, the hirer gets a right to the use and benefit of his skill and knowledge. 5. Conclusion: To conclude, I can say, that to qualify a legal right as a legal right, it must possess some characteristics or essential out of which one is the object of right. An object is an essential in the idea of a right. A right without an object in respect of which it exists is as impossible as a right without a subject to whom it belongs.

Q19. Discuss various principals of interpretation of enacted law. Introduction: A statute has to take effect through the interpretation of the Courts. So one of the most important functions of the Court is the construction of statute. In statute law the words Litera Scripta forms the law and hence meaning to the words are important. There are certain rules of interpretation of statute, which Courts follows while interpreting it. 2. Meaning Of Interpretation: I. According To Salmond: “By interpreting or construction is meant the process by which the Courts seek to ascertain the meaning of legislation through the medium of authoritative forms in which it is expressed.” 3. Rules Of Interpretation: I. Grammatical Interpretation: In grammatical interpretation only the verbal expression of law is taken into consideration and the Courts do not go beyond the literal egis. “Sussex Peerage Case” It was observed that “if the words of statute are in themselves precise and unambiguous, then the words themselves alone can best declare the intention of the law-giver.” (i) Defects in Grammatical Interpretation: Prof. Salmond refers to three logical defects by which grammatical interpretation may be affected. (a) The language of the statute may be ambiguous. (b) The language may be inconsistent with each other and thereby destroy and nullify their meaning. (c) The law may be incomplete so the grammatical interpretation may not be possible.

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English jurisprudence II. Golden Rule: The literal interpretation is a means to ascertain the general purport of the statute or ratio legis. In difficult cases, the Court may go beyond the words of the statue and take help from other sources. This rule is called the Golden Rule. III. Mischief Rule: It is maintained that when the true intention of the legislature cannot be determined by the language of the statute in question, the judges may look at the law before the Act and the mischief in the law which the statue was intended to remedy. The Act is to be construed in such a manner as to suppress the mischief and advance remedy. This rule of interpretation is knows as mischief rule. “Heydon’ s Case” This mischief rule takes its origin from the above cited case in which four things were observer. (i) What was the common law before the making of the Act. (ii) What was the mischief and defect for which the common law did not provide. (iii) What remedy the parliament hath resolved and appointed to cure the disease. (iv) The true reason of the remedy and judges shall suppress the mischief and advance the remedy. IV. Logical Interpretation: In logical interpretation, the Courts are allowed to depart from the letter of the law and try to find out the true intention of the legislation. It only applies when grammatical is not possible. (i) According to Gary: “Logical interpretation calls for the comparison of the statute with other statutes and with the whole system of law and for the consideration of the term and circumstances in which statute was passes.” V. Strict And Equitable Interpretation: When to possible meanings could be given to statute because of its ambiguity and the adoption of a meaning which is more obvious and consonant with the popular use of the language the interpretation will be strict. Equitable: When Court rejects the natural and most knows interpretation in favour of another which conforms better too the intention of the legislation, though it may not fit for the ordinary us of language, the interpretation is equitable interpretation. VI. Restrictive And Extensive Interpretation: Equitable interpretation is either restrictive of extensive. The rule of restrictive interpretation is applied to penal and fiscal statutes. In such cases, Courts applied a construction which imposes a lesser penalty on the subject. In extensive interpretation judge may stretch the word from narrower to the wider sense of which it is inherently capable of. VII. Historical Interpretation: The method of historical interpretation is adopted when language of a statute gives no clue to the intention of the legislation however the Courts cannot travel out of the language used in the statute. VIII. Sociological Interpretation: The jurists of the sociological school are prepared to give a lot of freedom to the judges while interpreting a statute. The view of the Kohler is that for the determination of the correct interpretation, Court can properly refer to the history of social movements and require into the social needs, objects and purposes which were agitating the society at the

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English jurisprudence time of legislation and which the statute had in view. IX. Equity Of A Statute: The principle of a equity of a statute is defined by coke in these words. “Equity is a construction made by the judges that cases out of the letter of a statute yet being within the same mischief or causes of making the same, shall be within the same remedy that the statute provideth; and the reason therefore is for that the law makes could not possibly set down all cases in express terms.” “Riggs Vs Palmer: “It was held that a murdered could not be permitted to take under the will of his victim and transmit rights to his own heirs, although the statute did not benefiting by the testamentary disposition of his victim.” X. Rule Of Cases Omissus: It is not the business of the Court to fill up the gaps in a statute. That is the function of a legislation. According to Lord Wright: “It may be that there is a Cases Omissus, but if so, that omission can only be supplied by a statutory action. That would be the work of legislation, not of construction, and outside the provide of the Court.” XI. Whole Construction: The statute must be read as a whole and construction should be put on all parts of the statute every clause of the statute should be construed with reference to the context and other clauses of the Act. XII. In According With Policy Of Statute: The interpretation of a statute be in accordance with the policy and object of the statute in question. XIII. Plain Construction: If the language of the statute is clear, it must be enforced although the result may seem harsh or unfair or inconvenient XIV. Rule Of Ejusdem Generis: It is the genera rule of construction that where a broad class is spoken of and general words follow, the class first mentioned is to be taken as the most comprehensive and the general words treated as referring to matters ejusdem generis with such class. It implies the exclusion of other persons or things of the same class which are not mentioned. XV. No Retrospective Effect: The general rule of interpretation is that no law is to have retrospective effect i. e., not deal with the past events, unless a specific intention to that effect is given in the statute itself. Xvi. Rules Of Presumptions: While interpreting a statute, certain presumptions have to be taken into consideration by the Courts. (i) Legislation not make mistaken: It is always to be presumed that the legislature dose not make mistaken, and if it dose make a mistaken, it is not for a Court to correct the same. (ii) Legislation knows the practices: Another presumption is that legislation knows the practice. (iii) Legislation not intended inconvenience: Another presumption is that the legislation does not intend what is intend what is inconvenient or unreasonable. If an enactment is such that by reading in its ordinary sense, it produce injustice whereas by reading in a sense which is not ordinary, but does not

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English jurisprudence produce injustice then it must be assumed that the legislation intended that it should be so read as to produced no injustice. (iv) Legislation not intend alteration in existing law: Another presumption is that the legislation dose not intend any alteration in the existing law except what is expressly declares. A statute should not be interpreted as affecting a fundamental alteration in the general law unless it uses words which point to that conclusion. (v) Legislation not interfere with vested rights. It is a proper rule of construction not to construe an Act of Parliament as interfering with or injuring persons rights without compensation unless one is obliged to so construe it. (vi) Statute not violate International law: Another presumption is that statutes d not violate the Principles of International law. The judges may not pronounce an Act ultravires as contravening International Law. XVI. Technicalities To Be Deprecated: The Courts must look at the substance and not the form and techincalities must be deprecated. XVIII. In Favour Of Accused: All penal statutes must be construed in favour of the accused. 4. Conclusion: To conclude, I can say, that it is the duty of the legislation to enact and make laws and it is the duty of the Courts to interpret it and apply it, according to certain well knows rules of interpretation. Where once certain words in an Act of Parliament have received a judicial construction in one of the superior Courts, it uses in the same meaning unless the legislation alter it in the subsequent statute.

Q20. Possession is considered to the prima facie evidence of ownership. Explain the logic behind the idea. Q. Define Possession. Explain in the concept of Animus Possidendi. How possidendi is realized. 1. Introduction: Possession is one the most important concept in the whole range of legal history. It is mere fact, which has an enormous legal significance, to which legal rights are attached and legal consequences flow. Possession is prima facie evidence of ownership and anyone desiring to disturb it must show either a title or a better possessor right. Possession is 9/10th of ownership. 2. Definition Of Possession: I. According To Salomnd: “The possession of the material object is the continuing exercise of a claim to the exclusive use of it” II. According To Pollock: “In common speech, a man is said to possess or to be in possession of anything which he has the apparent control or form the use of which he has the apparent power of excluding others.” 3. Possession As Evidence Of Ownership: According To Ihering: Possession is ownership on the defensive. It is the evidence of ownership. Possession is the

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English jurisprudence nine points of law and hence protection should be given to possession. I. Illustrations: To support the above statement, following illustration or cases may be put. (i) A finder of goods becomes its owner against the whole world except the true owner. [Hannah vs. peel, 1945] (ii) If a person is in adverse possession of a property for 12 or more years, he becomes the legal owner of that property and the tight of the original owner is extinguished. (iii) In many legal systems , possession is provisional or temporary title even against the true owner. Even a wrongful possessor who is deprived of his possession can recover if form any of whatsoever, or the ground of his possession. (iv) Even the true owner who retakes his own, must first restore possession to the wrongdoer and then proceed to secure possession on the ground of his ownership. Example: In Pakistan, under section 145 Cr .p . c, a magistrate can restore possession back to the person forcibly dispossessed form an immoveable property, which is likely to cause breach of public pace. (v) First possession of a thing which as yet belongs to on one is good title of right. (vi) Prior possession is prima facie proof of it. (vii) He who is in possession first in time has a better title than the one who has no possession. II. Possessory Remedies: Possessory remedies are those which exist for the protection of possession even against ownership. One of the main reason for the possessory remedies is that the possession is the prima facie evidence of ownership III. Doctrine Of Jus TertII: Thought possession is a prime facie proof of ownership, A defendant is at liable to rebut that presumption by providing that he has a better title but a defendant who has violated the possession of the plaintiff is not allowed to setup the defence of jus Tertii which means that he cannot that neither the plaintiff nor he has title, but some third person has. Example: English law considers jus tertii as a good defence under the following circumstances. (i) When the defendant defends the action on behalf of and by the authority of the owner. (ii) When he committed the complained of by the authority of the true owner. (iii) When he has already made satisfaction of the true owner by retuning property to him. 4. Categories Of Possession: Possession is divided into two categories: I. Possession in fact II. Possession in law I. Possession In Fact: Possession in fact is actual or physical possession. It is a physical relation to a person who had the things within his control deal with it as he liked to the exclusion of everyone else. Example: When a servant hold certain things in his custody on behalf of the master, he has the possession in fact and not in law. II. Possession In Law: Possession in law means possession un the eye of law. It means a possession which is

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English jurisprudence recognized and protected by law. Law wanted to give possession, or the right to exercise a claim to the exclusive control of a things, and along with it all the other advantages and rights which were closely associated with the idea of possession or physical control to a person, who had no actual physical control over it. Example: When a servant holds certain good on behalf of his master, a master still holds possession in law thought not in fact. A. Fundamental Element In Possession In Fact And Possession In Law: There is sometimes a discrepancy between possession in fact and possession in law, although usually possession exists both in fact and in law in the same person. A person who is in defacto possession of a thing also come to have dejure possession. The fundamental element both in possession in fact and possession in law is the same viz. possibility of excluding every person other than the possessor form the use or control of the thing. 5. Elements Of Possession: There are two elements of possession. I. Corpus possession (physical element) II. Animus possidendi (mental element) I. Corpus Possession: It meant that there exists such physical power or physical contract of the possessor in relation to the thing possessed. So as to give rise to the reasonable assumption the other people will not interfere with it. A. Essentials Of Corpus Possession: To constitute the corpus possession is: (i) There must be a guarantee of control between the person in possession and the thing possessed. (ii) So long as there is a guarantee of control, physical contact is not necessary. (iii) The control may be exercised by a servant or an agent. B. Consideration Of Corpus Of Possession: Salmond considers corpus possession under two headings: (i) Relation of the possession to things possessed. (ii) Relation of the possessor to the other person. (i) Relation of the possessor to the things possessed: All that is necessary is that the possessor must have the physical power of dealing with the things exclusively as his own. According to Savigny: “The physical power of dealing with the subject immediately and of excluding any foreign agency over it is factum which must exist in every acquisition of possession.” (ii) Relation of the possessor to the other person: When I possess a thing, it means that others shall not interfere with the use of the thing. Salmond points out that this measure of security tat a person will not be interfered with can be derived form several sources. (a) Physical Power of the possessor: By physical power of the possessor to exclude alien interference. (b) Personal Presence of the [Possessor: By the personal presence the possessor e.g., A dying man may retain or acquire possession by his personal presence but not by any physical power left in him. (c) Secrecy: Another source of security may be secrecy. By hiding the thing the possessor can always exclude alien interference.

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English jurisprudence (d) Custom: Another measure of security custom e.g., if a man has ploughed and sown and reaped the harvest year after year, he can reasonably expect to do it again the next year without interference. (e) Respect for rightful claim: Another measure of security claim as against a wrongful one, will be accepted and respected by the community at large. It depends upon opinion of the community. (f) Manifestation of Animus domini: Another means of security is the manifestation of the animus domini i.e., the visibility of the claim. The animus can be manifested only by an avert act. (g) Protection afforded by possession of other things: Another measure of security is the protection afforded by the possession of other things. The possession of a house consider possession of chattels situated upon it. II. Animus Possidendi: Animus possidendi is the intent to appropriate to oneself the exclusive use of the things possessed. It is the conscious intention of the individual to exclude others form the control of an object. According to Savigny: “Every case of possession is formed on the state of consciousness of unlimited physical power. A. Different Aspects Of Animus Possidendi: There are certain aspects of animus possidiendi which have to be considered. (i) Not necessarily a claim of right: The animus possidendi is not necessarily a claim of right. It may consciously wrongful. The thief has a possession no less real than that of the true owner. (ii) Exclusive claim: The claim of the possessor must be exclusive. He must intend to exclude other person form the use of the things possessed. A mere intent or claim of use cannot amount to the possession of the material thing itself. (iii) Need not claim of thing: The animus possidendi need not be a claim to the use of the things at all as in the case of a pledge or a beailee with a line. (iv) Need not claim on one, s own behalf: The animus possidendi need not be a claim on one, s own behalf. As servant, agent of trustee may have true possession though he claim the exclusive use or control of the thing on behalf of another. (v) Need not be specified: The animus Possidendi need not be specified but may be merely general’. A general intent with respect to a class of thongs is sufficient to confer possession of the individual object belonging to they class even of the their individual exercise is unknown e. g., I possess all the books in my library even though I may have forgotten the existence of many of them. 6. Conclusion: To conclude, I can say, that many legal consequences flow form the acquisition and loss of possession. It is the prima facie title of the ownership. The possession may be in fact or in law and two elements corpus and animus must be present in the case of possession and neither of them alone is sufficient to constitute it. Q21. Define possession. What are various kinds of possession? Q. Discuss the difference between possession and ownership

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English jurisprudence 1. Introduction: Possession is one of the most important concept in the whole range of legal history. It is a mere fact which has an enormous legal significance to which legal rights are attached and legal consequences flow from the loss and acquisition of possession. So that topic of acquisition of possession is very important in the study of possession. Possession is also divided into eight different kinds. 2. Definition Of Possession: I. According To Salmond: “The possession of the material object to the continuing exercise of a claim is the exclusive use of it.” II. According To Pollock: “In common speech, a man is said to possess or to be in possession of anything which has the apparent control or from the use of which he has the apparent power of excluding others.” 3. Modes Of Acquisition Of Possession: Possession is acquired whenever the animus and corpus united. So there are there modes of acquiring possession. I. Taking II. Delivery III. Operation of the law I. Taking: Possession is acquired by taking with the requisite animus, and it is done without the consent of the owner. It may be done in the following ways: (i) Rightful taking of possession: A shopkeeper is entitled to get some money from a customer and the shopkeeper takes possession of the things of the customer. This is an example of the rightful taking of possession. (ii) Wrongfully taking of possession: If a thief steals something from an individual, his acquisition of possession is wrongful. (iii) Original taking of possession: If a person captures a wild animal which does not belong to anybody, the possession is called original. II. Delivery: Another way of acquisition of possession is by delivery. In this case, a thing is acquired with the consent and co-operation of the previous possessor. A. Kinds Of Delivery: It is of two Kinds: (i) Actual (ii) Constructive (i) Actual delivery: In Actual delivery, the union of the corpus and animus is brought about for the first time in the transferee, as a result of the delivery by the transferor. The transferor may or may not retain mediate possession depending on the nature of the transaction. Example: ‘A’ lend his book to ‘B’ ‘A’ retain the mediate possession of the book but if ‘A’ sells this Book to him, he lose mediate possession.

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English jurisprudence (ii) Constructive Delivery: To salmond, constructive delivery is that which is not actual, that is to say there are no physical dealings with the thing but mere change of animus intention possession is secured. Forms of constructive delivery: It may take may of 3 forms or kinds. (a) Traditio brevi manu: In this case, possession is surrendered to one who has already in possession of it e. g., I lend you a book, afterwards make a presents of it to you. (b) Constitutum Possessorium: In this case, mediate possession is transferred to the transferee and transferor to the transferee and and transferor still holds the immediate possession. Example: I buy books from the shop. The shopkeeper agrees to holds books on my account, it is a constructive delivery. (c) Attornment: In this case, there is transfer of mediate possession from the transferor to the transferee while the immediate possession remains outstanding in some third person. Example: ‘A’ sells land to ‘B’ C is in possession as a tenant ‘C’ agree with the ‘B’ to hold for the future on his account of ‘A’ Here ‘B’ secures mediate possession by constructive delivery by way of attornment. III. Operation Of Law: The law removes goods from the control of one person to the control of another e. g., If a person dies, the possession of his property is transferred to successors and legal representative. Resnullius: According to this principal, the first finder of a thing has a good title to that thing against all but the true owner. Exceptions: This rule is subject to the following exceptions: (a) The rule does not apply if the owner of the property on which the thing itself and the property. (b) If the finder finds the thing as the servant or agent of another person. (c) If the possession of the thing was got through trespass or other wrongful, act. I. Immediate And Mediate: (i) Immediate possession: Immediate possession is also called direct possession. If the relation between the possessor and the thing possessed is a direct one it is a case of immediate possession. Example: If ‘A’ go to the bazaar and buy thing personally, it is a case of immediate possession. (ii) Mediate possession: Mediate possession is also knows as indirect possession. When the relation between the possessors and the thing is through the intervention or agency of some other person, it is called mediate possession. Example: If ‘A’ send his agent to the bazaar to buy something and he does make the purchase, the possession of ‘A’ is mediate. Categories of Mediate Possession:

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English jurisprudence There are three categories of mediate possession. (a) First category: In it, the owner has possession through an agent or servant who acquires and retails possession of a thing entirely on behalf of the owner without claiming any interest for himself e. g., buying a book on behalf of owner. Criticism: It is pointed out that in case of an agent or servant, he dose not possess the thing but has merely the custody of the thing. The animus possidendi is lacking. (b) Second category: In the second category, the immediate possession is whit a person who holds the thing on his behalf and the behalf of some other person and who is bound to hand over the thing whenever that other person desire e. g., where someone borrows a book from someone. Criticism: It is pointed out that two persons cannot be in possession of the same thing at the same time adversely to each other. The reason is that if one person has both the corpus of possession and the animus possidendi he has full possession of the thing. (c) Third category: In the case of third category, the immediate possession is with one person but he is bound to return the same after a certain period or on the fulfillment of certain conditions. Example: If ‘A’ owe some money to ‘B’ and pledge certain things to him ‘B’ has immediate possession of the thing pledged but is bound to return the same to the ‘A’ on payment of the debt. II. Corporeal And Incorporeal Possession: (i) Corporeal Possession: Corporeal possession is the possession of a material object e. g., possession of a car, books etc. (ii) Incorporeal Possession: Incorporeal possession is the possession of anything other than material object. It is the possession of a right e. g., possession of a copyright etc. III. Representative Possession: Representative possession is that in which the owner has possession of a thing through an agent or servant. The essence lies in a fact that the master has the animus (intent) to exercise control over the thing in the hands of his servant or agent. IV. Concurrent Possession: In the case of concurrent possession, the possession of a thing may be in the hands of two or more persons at the same time but heir claims are to adverse or destructive to each other. Example: I am possess a piece of land and another person may have the right of way on the same land. V. Derivative Possession: In derivative possession, the holder of the thing combines in himself both the physical and mental elements which constitute legal possession e. g., creditor has derivative possession of the thing pledged to him. VI. Constructive Possession: It is not an actual possession. It is a possession in law and not in fact. Example: Giving of key of a building is the giving constructive possession of the building.

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English jurisprudence VII. Adverse Possession: The possession of property by a person is adverse to every other person, having or claiming to have right to the possession of the same, by virtue of a different title when adverse possession is established, it extinguishes the title of true owner. Condition for Adverse Possession: (a) Possession must be an invasion of the ownership of another i. e., ownership must belong to some other person. (b) Possession should be actual exclusive and adequate in continuity and publicity. (c) Possession must be exercised without violence. (d) It should be exercised openly i. e., without stealth. (e) The act of possession must be without permission. VIII. Duplicate Possession: Claims to possession which admit of concurrent realization give rise to duplicate possession. 5. Difference Between Possession And Ownership: Ownership and possession have the same subject-matter. The two things stand mutually to coincide ownership strives to realize itself in possession endeavours to justify itself as ownership. Following are the differences between these two term. (i) Nature: Possession is the de facto exercise of a claim while ownership is the de jure recognition of that claim. (ii) As to Guarantee: Possession is the guarantee of the facts while ownership is the guarantee of law. (iii) As to spirit. Possession without ownership is the body of fact uninformed by the spirit of right. While ownership without possession is right unaccompanied by that environment of fact in which it normally realizes itself. (iv) Effect: Possession is a evidence of ownership while the ownership is not the evidence of possession. (v) Effect of Time: Through the influence of time, possession without title ripens into ownership and ownership without possession withers away and dies. (vi) As to conception: Ownership is concrete is the absolute while possession is the concrete realization of that concept. (vii) As to Alienation or destruction of a thing: The owner may alienate a thing or even destroy it is such a manner that he does not disturb the rights of other people. While a possession has no such rights as regards to the thing possessed. (viii) Acquisition: The transfer of possession is comparatively easier and less technical but the transfer of ownership is most cases involves a technical process of conveyance. (ix) Remedies: For the protection of ownership, proprietary remedies are available while for the protection of possession, possessory remedies are available. 6. Conclusion: To conclusion, I can say that possession is an essential concept in legal system. It is a prime facie evidence of ownership. It is classified into different kinds and different ways are provided for the acquisition of it.

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English jurisprudence Q22.What is ownership? Q. Define ownership. Give explanation of its various kinds. 1. Introduction: The concept of ownership is one of the fundamental justice concepts common to all system of law. This concept began to grow when people started plating trees, cultivating lands and building their homes. They began to think in term of “Mine” and “Thire”. The idea ownership following the idea of possession. 2. Idea Of Ownership: According to Keeton: The right of ownership is a conception clearly easy to understand but difficult to define with exactitude there are two main theories with regard to the idea of ownership. The great exponents of two views are “Austin” and “Salmond”. I. Austin’s View Of Ownership: According to Austin ownership means a right which avails everyone who is subject to the law conferring the right to put thing to user of indefinite nature.” 3. Kinds Of Ownership: Following are the different kinds of ownership: I. Corporeal And Incorporeal: (i) Corporeal: Corporeal ownership is the ownership of a material object. It is connected with the corporeal things. Corporeal things are those which can be perceived and felt by the senses e. g., ownership of a house, car etc. is corporeal ownership. (ii) Incorporeal: Incorporeal ownership is the ownership of a right. It is connected with the incorporeal things are those which cannot be perceived by the senses and which are intangible. Incorporeal ownership includes ownership over intellectual objects and encumbrances e. g., ownership of a copy right or trademark etc. is incorporeal ownership. II. Trust And Beneficial Ownership: (i) Trust ownership: Trust ownership is an instance of duplicate ownership. Trust property is that which is owned by two person at the some time. The ownership is only a matter of from and not real. His ownership is only a matter of from and not of substance. He is under an obligation to use his ownership for the benefit of other. (ii) Beneficial ownership: In a trust, the relationship between the two owner is such that one of them is under an obligation to use ownership for the benefit of other. That other person for whose benefit the ownership of the formed is used is called the beneficial ownership. Example: If property is given to ‘X’ on trust ‘Y’ ‘X’ would be the trustee and his ownership would be trust ownership and ‘Y’ would be the beneficiary and his ownership would be beneficiary ownership. III. Legal And Equitable Ownership: (i) Legal ownership: It is that which has its origin in the rules of common law and legal owner is one who is recognized as owner by common law. (ii) Equitable ownership: It is that which proceeds from the rules of equity. In many cases equity recognize ownership where law does not recognize owing to some legal defect. Equitable ownership always

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English jurisprudence implied legal ownership. Illustration: If ‘A’ has entered into an agreement for sale of some land with ‘B’ and ‘B’ refuses to execute the agreement, the remedy open to ‘A’ in a Court of common law is to sue for damages but under equity ‘A’ can obtain the specific performance of a contract and equity would grant ‘A’ the equitable ownership of that land. IV. Vested And Contingent Ownership: (i) Vested ownership: When the title of the owner is perfect. It is called vested ownership. The word vested is used in two senses: (a) The right may be vested in possession e. g., property is given to ‘A’ for life. His interest is vested in possession. (b) The right may be vested in interest. Example: Property is given to ‘A’ for life and remainder to ‘B’. The interest of ‘B’ is vested because there is nothing but the prior interest of ‘A’ to stand between him and the actual enjoyment of the land. It becomes vested in possession only on the death of ‘A’. (ii) Contingent ownership: When the title of the ownership is yet imperfect but is capable of becoming perfect on the fulfillment of some condition, it is called contingent ownership. There are three main features of a contingent interest. (a) It is solely dependent upon the fulfillment of a condition so that in case of non-fulfillment of condition, the interest may fall through. (b) If the transferee dies before obtaining possession, the contingent interest fails and the property reverts to the transferor. (c) A contingent interest is neither transferable nor heritable. Example: An estate is bequeathed to ‘X’ until he marries to ‘Z’ his interest is contingent on his getting married with ‘Z’. Difference Between Vested And Contingent Ownership: (i) As to Title: In vested ownership the title of the owner is perfect. In contingent ownership the title of the owner is imperfect. (ii) Nature: In vested ownership , the ownership is absolute. In contingent ownership the ownership is conditional. (iii) Necessary element: In vested ownership, the investitive fact form which he derives his right is complete in all its parts. In contingent ownership the investitive fact is incomplete on account of the absence of some necessary element which is capable of being supplied in the future. (iv) Transferable right: The vested ownership or interest is transferable. The contingent interest is not transferable. (v) Heritable: Vested interest is heritable as it passes with the legal heirs of the deceased. Contingent interest is not heritable and if the owner of contingent interest dies before obtaining possession the contingent interests fails and the property reverts to the transferor.

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English jurisprudence (vi) As to Event: Vested interest is that which take effect at once or no the happening of a certain event. Contingent interest is that which take effect on the happening or non-happening of an uncertain event. (vii) As to Right: Vested ownership creates an immediate right though the enjoyment may be postponed to a future date. Contingent ownership does not create an immediate right and it is dependent upon the fulfillment of some condition. (viii) Death of transferee: A vested interest is not defeated by the death of a transferee before he obtains possession. A contingent interest cannot take effect in the event of the death of the transferee before the fulfillment of the condition. “Sashi Kartha vs. Pramodchandra” (AIR 1932) “An estate or interest is vested when there is immediate right of present enjoyment or present right of future enjoyment. An estate or interest is made to depend upon some event or condition which may or may not happen.” V. Sole Ownership And Co-ownership: (i) Sole ownership: If a right owned by one person only at a time, it is called sole ownership. (ii) Co-ownership: When to or more person have the same right vested in them it is called co-ownership. The right is an undivided unity. By means of a partition, the co-ownership can be ended, e. g., the members of a partnership are co-owners of the partnership property. A. Forms Of Co-ownership: According to salmond co-ownership may assume different forms. Its two chief kinds in England law are distinguished as ownership in common and joint ownership. (a) Ownership in common: In common ownership, the rights of a dead man descends to his successors like other inheritable rights. (b) Joint ownership: In case of joint ownership on the death of one of the two joint owners, the ownership dies with the deceased and it survives to other co-owner by virtue of survivorship. Illustration: If a property belongs to ‘X’ and ‘Y’ in equal shares and ‘X’ dies, than, if it is ownership in common, half the property passes to the heirs of the ‘X’ and if it is joint ownership, ‘Y’ would be entitled to the whole property and the heirs of the ‘X’ would get nothing. VI. Absolute And Limited Ownership: (i) Absolute ownership: An absolute owner is one in whom are vested all the rights over a thing to the exclusion of all. This means that excepting the absolute owner, there is no other person who has any claim whatsoever to the thing in question. (ii) Limited ownership: When there are limitations, on the user, duration or disposal of rights of ownership, the ownership is limited ownership. 4. Conclusion: To conclusion, I can say, that the concept of ownership is very important. As stated by

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English jurisprudence Holdsworth, the English law reached the concept of ownership, as an absolute right through development in the law of possession. It is vested only in person and can be divided into various kinds.

Q23.Define ownership and modes of acquisition of ownership. 1. Introduction: The concept of ownership is one of the fundamental juristic concepts common to all systems of law. This concept began to grow when people started planting trees, cultivating lands and building their homes. They began to think in terms of ‘mine’ and ‘thine’. The idea of ownership followed the idea of possession. 2. Idea Of Ownership: According to Keeton: :The right of ownership is a conception clearly easy to understand but difficult to define with exactitude. There are two main theories with regard to the idea of ownership. The great exponents of two views are ‘Austin’ and ‘Salomnd’.” I. Austin ‘S View Of Ownership” According to Austin ownership means a right which avails against everyone who is subject to the law conferring the right to put thing to use of indefinite nature. A. Attributes Of Ownership: According to Austin, there are three attributes of ownership. (i) Indefinite in point of user: The first attribute of the ownership is that it is indefinite in point of user because the thing owned may be used by the owner in very many ways e.g., a owner may build a house on his land may use it for cultivation. (ii) Unrestricted in point of disposition: The second attribute of ownership is a right of transfer or disposition without any restriction. (iii) Permanency: The third attribute of ownership is the permanence of the right of ownership. This right exists so long as the thing exists and extinguished with the destruction of the thing. Criticism: Austin ‘s idea of ownership has been criticized on the following grounds: (i) It is pointed out that ownership is not a right a right but a bundle of rights. (ii) It is not merely a right but also a relationship between right owner and the person owing it. (iii) Restrictions may be imposed on the use of the thing by means of an agreement or by the operation of law. (iv) Certain restrictions are imposed on the right of disposal of the owner. The transfer of property is not allowed if its object is merely to defeat or delay the creditors. II. Salmond ‘S View of Ownership: According to salmond ownership is a relation between a person and any rights that vested in him. That which man owns is a right and not a thing. To own a piece of land means to own a particular kind of right in the land. Criticism: Salmonds ‘s view of ownership has been criticized by many writers: (i) According to Diguit:

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English jurisprudence Ownership is a relationship between a person and a thing over which he is permitted on account of this relationship, complete disposal, use and enjoyment. What is owner is a thing and not a right. (ii) According to Cook: To use the term “owner” to express the relationship between a person and right is to introduce unnecessary confusion. Ownership is the name give to the bundle of right. (iii) According to Kocourek: Ownership is a relationship of the owner of the owner and right to a thing which can be economically enjoyed. The right of ownership is a matter of legal protection. 3. Essentials Of Ownership: (i) Indefinite in point of user: It is indefinite in point of user. The owner has liberty to use the thing. He in under no duty not to use it. But under mature legal systems, qualifications have been imposed on the user of the property. Every owner must use the object of ownership in a way as to not to injure the right of other person. (ii) Unrestricted in point of disposition: Ownership is unrestricted in print of disposition. An owner can effectively dispose of his property by a conveyance during his lifetime or by will after his death. However restrictions may be imposed by law e.g., transfer of property made with intent to defeat or delay the creditors can be set aside. (iii) Right to possess: The owner has a right to possess the thing which he owns. It is immaterial whether he has actual possession of it or not. (iv) Exhaust the thing: Owner has the right to exhaust the thing while using it, if the nature of the thing owned in such. (v) Residuary character: Ownership has a residuary character. An owner may part with several rights in respect of the thing owner by him. Inspite of that, he continues to be the owner of the thing in view of residuary character. Example: ‘X’ an owner may give a lease of his property to ‘Y’ and an easement to ‘Z’. His ownership of the land still consists of the residual rights. (vi) Right to destroy etc.: Generally, the owner has the right to destroy or alienate the thing the owns. (vii) Vest in person: Ownership can only vest in a person. 4. Modes Of Acquisition Of Ownership: Following are the different modes of acquisition of ownership: I. Original II. Derivative I. Original: There are three modes of original acquisition. (i) Absolute (ii) Extinctive (iii) Accessory (i) Absolute:

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English jurisprudence Ownership is absolute when the same is acquired over previously ownerless object. The rule is that the first occupier becomes the owner. Absolute ownership can acquired in following two ways: (a) Occupation (b) Specification (a) Occupation: The physical control of the thing is essential in the case of occupation. Such an ownership is acquired in the case of wild animals, birds, fish etc. (b) Specification: In the case of specification, material belonging to one person are given a new shape clay may belong to one person but the sculptor may make a statute out of it. (ii) Extinctive: Ownership is extinctive if the ownership of a previous person is finished on account of adverse possession by the acquire. (iii) Accessory: It is accessory if the ownership is acquired as a result of accession. If some land is added on account of a change in the course of the rive, the same is acquired by the owner of the property adjoining it through the process of accession. II. Derivative: Ownership may consist in taking the thing form another with or without his consent both are the cases of derivative acquisition since the new owner’ s title is derived form that of his predecessor. 5. Conclusion: To conclude, I can say, that concept of ownership is very important. As stated by Hold sworth the English law reached the concept of ownership as an absolute right through development in the law of possession.

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