Code-101

KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi

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(An e-initiative by KCL)

NOTES

ON

Code : 101

Subject : Jurisprudence

Course : I

Class : LL.B. 1st

Yr

Note : Only KCL students are authorized to download the notes


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JURISPRUDENCE

Q.1 Define Jurisprudence according to Salmond and Holland what according to your would

be the most appropriate definition of Jurisprudence.

Ans. Definition or meaning of Jurisprudence.

The word Jurisprudence is derived from the Latin word Jurisprudentia which denotes the

knowledge of Law in Latin Jure or Juri’s means Law or Legal and Prudentia means skill or

knowledge.

In French Law La Jurisprudence is the Term applied to the body of law built up by the decision

of Particular Courts in France Jurisprudence is called La Philosophic dn droit that is the

Philosophy of right that is of Law in the abstract of the term law.

In Germany we have the term rechts Philosophic that is philosophy of right’s that is of

law in the term Law.

According to Holland defines if as the formal Science of positive Law.

According to Samond Jurisprudence may be defined as the Science of Civil Law.

In the Oxford English Dictionary, Jurisprudence is define as knowledge of skill in Law. The

Science which treats of human Laws in General, the Philosophy of Law a system or body of

Law.

Baring on the above definitions we may define Jurisprudence as the study of fundamental legal

Principles, including their philosophical historical and social basis and an analysis of legal

concepts. Thus Jurisprudence is considered as the study of fundamental Legal Principles and

is concerned with the normative and not merely the positive it is concerned not merely with the

actual but also with the ideal. It may be considered as philosophy of law and quintessence of

law. We may conclude by saying that Jurisprudence is the science of law dealing with

profound legal Principles with influence and change human conduct from time to time.

According to Holland

Jurisprudence is the formal Science of positive law it is wrongly applied to actual system of law

or to current views of laws or to suggestions for its amendment but is the name of a Science.

The Science is a formal or analytical rather than a material one. It is the science of actual or

positive law. The essential ingredients of his definition of Jurisprudence are as under :-

(1) Formal – This Science is a formal rather than a material one.


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Science – Jurisprudence is a Science and not an art a systematic and formulated knowledge

is called science.

According to Salmond the words which are used by Salmond the words which are used by

Salmond in his definition may be explained as under.

(1) Law – According to Salmond – Law is the body of Principles recognized and applied by the

State in the administration of Justice thus which are applied by the Court of the State in the

administration of justice, for example Indian Dowry Act 1987 passed by Parliament yet is not

applied by the court.

(2) Civil Law - The Term Civil Law is derived from the Latin word “Civitas” which means State

thus civil means law made by State.

(3) Science – According to Salmond if we use the term science in the widest permissible sense as

including the systematic knowledge of any subject of intellectual inquiry Jurisprudence may be

defined as the Science of civil law.

Salmond gave three kinds of Jurisprudence

(1) Expository or systematic Jurisprudence

(2) Legal History

(3) Science of legislation

Conclusion :- In short on the basis of the above description we can say that the Salmond’s

statement that Jurisprudence is the Science of the First Principles of Civil Law.

Q.2 Law is the body of Principles recognized and applied by the State in administration of

Justice discuss?

Law

Law properly so called Law improperly so called


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Law of God Human Laws

Positive Law Positive Morality

Law of God – Laws set by God for men.

Human Laws – Laws set by men for men

Human Laws may again divided two kinds

Positive Law – There are Laws set by Political Superiors as such or by man not acting as

political superiors. Only there laws are the proper subject-matter of Jurisprudence.

(1) Positive morality – other laws which cannot set by Political superiors.

Law improperly so called are also divided in two needs.

(1) Law by analogy – There are opinions or sentiments of an undermianate body of men eg –

laws of fashion honour and etiquette etc.

(2) Law by metaphor – there are certain other rules which are called law metaphorically as

laws of gravity optics and the laws of plant or animal growth etc.

Australian theory of Imperative Law

A rule laid down for the guidance of an intelligent being by an intelligent being having power

over him. Next Austin recognizes the law of God or divine law which he regards as ambiguous

and misleading. Law properly so called is the positive law which are described by Austin

means law as it is rather than law as it ought to be with which he is not at all concerned.

Positive law as Command :- The law properly so-called is the positive law depends upon

political authority.

Command and sanction :- sanction is an evil which will be incurred if a command is

disobeyed and is the means by which a command or duty is enforced. It is wider punishment.

A reward for obeying the command can scarcely be called a sanction.

Command are two kinds – (1) General and (2) Particular

General Command :- A general command is a law or rule where it obliges generally to acts.


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Particular command :- it is occasional or particular when it obliges to a specific individual act or

forbearance.

Law is a command of sovereign which obliges a person or persons to a course of

conduct.

Thus the main preposition’s of Austin’s theory are –

(1) The most important function of the State is the administration of justice.

(2) It is carried on by means of rules drafted by the central authority.

(3) The special characteristics of these rule is that they are in the form of commands entailing

punishment in care of disobedience.

(4) The central authority

(5) The central authority or sovereign does not share this power with any one and therefore

sovereign does not share this power with any one and therefore sovereignty in idea is

indivisible also.

Criticisms of the Austin Theory of Law

(1) Sovereign is not the only source of law.

(2) Law is older than State

(3) Over orphan’s on physical force and overlook morals.

(4) Law is not always shaped in the form of a command

(5) All commands of the sovereign re not laws.

(6) Judgement made Law Ignored.

(7) Theory is Artificial

Importance of Austrian Theory

Austin was first who distinguished between Law and Justice. Salmond says and concludes

that all the three elements namely the imperative and ethical constitute the true theory of law.

What is place in Modern Democratic State

Conclusion :- on the basis of above description it can fairly be said that Austin’s definition of

law cannot be accepted fully.


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Q.3 Discuss Kelsen’s pure theory f law what are the main points of criticism of this theory.

Ans. Kelsen’s pure theory of law –

(1) Law is a Normative Science – According to Kelsen Law is a Normative Science but law

norms of Science are norms of IS (Sein) means law norms may be distinguished from

Science Norms on the ground that norms of Science are Norms. Kelsen law is a despsy

cologized command a command which does not imply a will in a psychological sense of

the term.

(2) Hierarchy of Normative Relations – The Science of law to Kelsen is the knowledge of

hierarchy of normative relations. He builds on Kant’ theory of knowledge and extends this

theoretical knowledge to law also.

(3) Separation of Law from other social Science and morals – Kelsen limits the scople of

Jurisprudence by excluding its relation with any social science. He seperates law from

politics sociology metaphysics and all other extra-legal disciplines. He defines science as a

system of knowledge or a totality of cognitions systematically arranged according to logical

principles. Kelsen’s grand norms is analogous Austin’s concept of sovereign without which

law can not be obligatory and binding. There Kelsen’s pure theory of law is a theory of

positive law based on normative order criminating all extra – legal and non-legal elements

from it.

(4) The Grundnorms – Kelsen pure theory of law is based on paramedical structure of

hierarchy of norms which derive their validity from the basic norms which he Termed as

Grundnorms.

(5) Pyarmid of norms – Kelsen considers legal science as Pyarmid norms with Grundnorm at

the apex. The subordinate norms are controlled by norms superior to them in hierarchical

order. The Gurndnorms is however independent of any other norm being at the apex.

for example – a statute or law is valid because it derives its legal authority from the

legislature body.

Essential Features of Kelson’s Theory

(1) The aim of a Theory of Law.

(2) Legal Theory is Science not volition it is knowledge of what the law is not of what the

law ought to be

(3) The Law’s a normative not a natural science.


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(4) Legal theory as a theory of norms is not concerned with two effectiveness of legal

norms

(5) A theory of law is formal

(6) The relation of legal theory to a particular system of positive law is that of possible to

actual law.

Postulates of Kelsen’s Theory

(1) Law and State are not two different things.

(2) No distinction between public and private law

(3) No difference between natural and justice persons.

(4) No individual rights

(5) Supremacy of international law

Criticism of Kelsen’s Pure Theory

(1) Grund norms is vague and confusing

(2) Purity of norms cannot be maintained.

(3) No practical significance.

(4) Natural law ignored

(5) International law weakest point of the theory.

Kelsen’s Contribution

The credit goes to Kelsen for evolving a Pure theory of law. He has separated

Jurisprudence from all other social science and liberated the flaw from the metaphysical must

with which it has been covered at all times by speculations of justice or by the doctrine of

exponent of the Viennese jus natural his views on law are contained in his book entitled

(General Theory of Law and State)

Q.4 Write a note on sociological school of Jurisprudence.

Ans. Sociological school and its chief exponents

The chief exponents and supporters of sociological school of Jurisprudence are ouquit, Augusta

comet and pound. According to these Jurists Jurisprudence is now a social science. Now the

study of law in relation to society is the opening of a new era in legal thought and this enable the


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Jurisprudence to be called a social science. A brief thesis of prominent jurists is as under.

Danguit :- 1859-1928 and his theory of social solidarity Danguit made a distinction between the

kinds of need of men in society firstly there are common needs of individuals which are satisfied

by mutual assistance and secondly there are diverse need of individuals which are satisfied by

the exchange of service therefore the division of labour is the most important fact of social

cohesion. He named it social solidarity.

Interdependence of men in the society

Duguit built his theory on social solidarity. He insisted on the necessity of viewing social life as it

is actually lived. The most important fact of the society is the interdependence of men. The end

of all human activities and organization should be to ensure the inter dependence of men. This is

called Dauquit’s theory of social solidarity.

Law also to serve this end

Implications of Daguit’s Theory

(1) Daguit’s Attack on sovereignty

(2) No distinction between public and private law.

(3) No Private right

Criticism

(1) Social solidarity a natural principle.

(2) Social solidarity is a vague expression.

(3) Diguit + confuses is with ought

(4) Diguit overlooked the growing state activity.

(5) Soviet jurists used Daguit’s theory

(6) In consistencies in the theory.

Duguit’s Contribution

Despite defeats and weakness of his theory his contribution and influence were great. His

approach is very comprehensive and science. Through his theory ultimately becomes a theory of

natural law or a theory of justice. That we find in him is perfectly in social terms and derived from

social facts. He shapeda theory of justice out of the doctrines of sociology.


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According to the ring (18-18-1892) a social Utilisation -

The main propositions of his theory are –

(1) Law is the result of constant – struggle

(2) Law is to serve social purpose

(3) Law is not the only means to control social organism

(4) Law protects social interest

Criticism Against The ring’s theory

His theory is criticized on two following grounds :-

(1) The ring points out only the problems not their solution.

(2) Law protects will and not purpose.

The ring’s contribution

(1) Comparative study of legal system

(2) He is the founder of sociological Jurisprudence

(3) Insistence on coercion.

According to Ehrlich (1882-1892) His Living Law Theory

Main Propositions of this theory are as under.

(1) Law is to be found in social facts

(2) Living Law is the fact that Govern social life.

(3) No substantial difference between the formal legal norms and customs etc.

(4) Legal norms regulating “Facts of Laws”.

(5) Law according to the requirements of the society

Criticism According to Freidman

(1) No clear criterion by which to distinguish a legal norms. From any other social norms

(2) Confuses the position of custom as a sources of law with custom as type of law.

(3) Refuse to follow up the logic of his own distinction between specific legal state norms and legal

norms where the State merely adds sanction to social facts.

Ehrlich’s Contribution –

Contribution to Jurisprudence is great his theory came as a vigorous reaction against the

analytical Jurisprudence. He approach is more scientific and comprehensive.


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Q.5 Roscoe Pound’s Theory of Social Engineering

Ans. The main propositions of pound’s theory are

(1) Pound concentrates on the function aspect of law

(2) The task of law is social engineering

(3) Private public and social interests

(4) Evaluate the conflicting interest in due order of priority pounds answer is that every society

has certain basic assumptions upon which it ordering rests.

(5) Social engineering means a balance between the competing interest in society.

(6) Interest as the main subject matter of law.

Concluding his theory pound says that the aim of social engineering is to build an efficient

structure of the society as for as possible which involves the balancing of competing interest.

Pounds has made an attempt to state what these are for existing western society.

Jural Postulate -1-in civilized society men must be able to assume that others will commit no

intentional aggressions upon them.

Jural Postulate –II- in civilized society men must be able to assume that they may control for

beneficial purpose what they have discovered and appropriated to their own use what they

have created by their own labour and what they have acquired under the existing social and

economic order.

Jural Postulate –III-in civilized society men must be able to assume that those with whome

they deal in the general inter courses of society will act in good faith.

Criticism against Pounds Theory

(1) Engineering not a happy word

(2) Classification of interest natureful Freidman.

Pound’s Contribution

His theory of social engineering stands on a practical and firm ground it has inspired great

practical field work. His emphasis on studying the actual working of legal rules in the society

the importance of social research for good-law making and pointing out valuable contribution to

Jurisprudence.


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Q.6 Write an essay on the realist school of Jurisprudence.

Ans. Realist School of Jurisprudence – the realist movement is a Part of the sociological Approach

and is sometimes called the left wing of the Functional School. Iit casts light on the realists, the

founder of this school is J. Halmes and the Supporters are Prof. Gray Liewellyn and Frank. It

differs from the sociological school in respect of the fact that it is little concerned with the end

of Law - this movement is named as realist because this Approach studies law as it is in actual

working and its effects.

Factors Responsible for Realist Approach

Realist approach Firstly-

Reflects the influence of the Pragmatic Philosophy which had its origin in America. Secondly -

This is most important factor which seems to have led to this thought is the organization of

Judiciary in that country the American Supreme Court is the final authority to interpret the Law

and to Judge its Validity. The Judges of the lower court are elected.

(I) Justice Holms (1841-1935)

He gave an entirely empirical and skeptical definition of law in these words. Take the

fundamental question what constitutes the Law you will find some text writers courts of

morrach usetts or England that it is a system of reason that it is a deduction from

Principles of ethics or admitted actions or what not which may or may not coincide with

the decision. The Prophecies of what the courts will do in fact and nothing more

Pretentions are what I mean by the Law. According to Holms Law must be strictly

distinguished from morals, a Lawyer is concerned with what the law is and not with what

if ought to be Holms felt that the development of Law could be Justified

scientifically.

Holms view of law as Prediction placed both litigation and the professional lawyers in

the centre of the Legal Stage.

Cray defined Law as what the Judge declare

Jerome Frank (1889-1957)


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It is thesis is that Law is uncertainly certainly of Law is a legal myth. The child like

craving for certainly of Law in men is due to the Psychology which develops from

childhood when he gets Protection and safety from his father in order words. I t is the

Father-complex which makes one to think of certainly. According to some critics. This is

a Freudian approach in the field of Jurisprudence , which is not at all necessary.

Llewellyn- According to Llewellyn, realism means a movement in thought and work

about Law. This approach takes Law as a means to social ends and any part of it needs

constant examination for its purpose and effect.

Characteristics of Realistic movement

(1) There is no realist school realism means a movement in thought and work about

Law.

(2) Realism means a conception of Law in flux and as a means to social ends, so that

any part is to be examined.

(3) Realism distrusts traditional legal rules and concepts in so far as they purport to

describe what either courts or people actually doing.

(4) Llewellyn suggests to study the Problems of law on these lines and he lays down the

Techniques and the line of enquiry to be adopted.

Criticism against Realist Approach

(I) The realist Launched a vigorous attack against Juristic complacency and the

myth of certainly but it actual Practice we find a great amount of certainly and a

lot of Transaction are regulated on this basis.

(II) Realist approach of American Jurists is based on and is concerned with their own

local judicial setting and therefore it does not give a Universal method.

Contribution of Realist Approach

The Realist movement has made valuable contributions to Jurisprudence. Their

approach to Law is in a Positivist spirit and they are not concerned with any theory of

Justice or natural Law.


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Q.7 Write a critical note on the historical school of Jurisprudence. Critically examine the

Volksgeist theory of savigny and assess his contribution.

Ans. Historical school of Jurisprudence – The chief supporter of this school are –savigny

Cartar Puchta, Henory maine and G.C. ---- under historical school of Jurisprudence we

study the origin development and systematized change in law and legal concepts. In this

school the study of mutual relations of State and law is made in Historical perspective.

According to the view of Historical school law is found not made. Law is based on

customs and 4 sages. One of the main exponent of this school is savigny.

Savigny – 1779 - 1861

The main propositions of his theory of law are as under.

(1) Source of law is volksgeist – savigny was of the opinion that law is a product of the

people’s life.

(2) Law develops like language and has a national character.

(3) Law is a continuous and unbreakable process

(4) Savigny’s admiration for Roman Law

(5) Savigny’s view on codification of law.

In brief the main featurdes os savigny’s theory are –

(1) Law has an unconscious organic growth. It is found and not artificially made.

(2) Law is not universal in nature but like language it varies with the people time and needs of the

community.

(3) Since law should always conform to popular consciousness volksgeist custom not only

precedes legislation but is superior to it.

(4) With the growing complexity of law

(5) The basis of law is to be found in volkgeist which means consists of traditions, customs, habits,

practices and beliefs of the people.

Criticism of Savigny’s theory

(1) Inconsistency in the theory

(2) Volk sgeist not the exclusive source of law.

(3) Savigny ignored other factors that influence law.


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(4) Many things unexplained

(5) Juristic pessimism.

Savigny’s Contribution

Savigny’s theory of volksgeist interpreted Jurisprudence in terms of people’s will thus it

paved way to the modern sociological approach to law laying greater emphasis on relation of

law with society savigny’s theory came as a reaction and revolt against the 18th century natural

law theory and analytical positivism. The only defect in his theory was that he carried the

doctrine of popular will too for. Savingy’s legal theory served as a sound warning against

hasty legislation and introduction of revolutionary abstract ideas in the legal system unless

they mustered support of the popular will.

Q.8 What are the various schools of Jurisprudence

(a) Explain them in brief.

(b) Point out the difference between Analytical, and Historical school of Jurisprudence.

Ans. Schools of Jurisprudence

(1) Analytical school of Jurisprudence.

(2) Historical school of Jurisprudence.

(3) Ethical school of Jurisprudence.

(4) Philosophical or sociological school of Jurisprudence.

(5) Economic school of Jurisprudence.

(6) Realist school of Jurisprudence.

Ans.(b) Analytical and Historical school of Jurisprudence analytical school of Jurisprudence deals

with the present, its purpose is to analyse and digest the law of the land as it exists today.

The analysis of the first principles of civil law an analytical Jurisprudence deals with the

following matter.

(1) An analysis of the conception of civil law.

(2) The study of various relations between civil law and other forms of law.

(3) An inquiry in to the scientific arrangement of law

(4) An analysis of the various complex ideas of law

(5) The study of the theory of liability.


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(6) The study of the conception of legal rights and duties.

Criticism

(1) It is very difficult for any school to resist in setting up an ideal which can be made the basis

for constructive criticism of the law.

(2) If logic were to prevail the law is to be studied as to what it should be and meet that what it

is.

Q.9 What are the theories of punishment explain the relation between the deterrent and

preventive theories which theory of punishment is suitable to India.

Ans. There are five theories of punishment.

(1) Deterrent theory – According to Salmond punishment is before all things deterrent and the

chief and of the law of crime is to make the evildoer an example and a warning to all that

are like minded with him.

Paton puts – The deterrent theory emphasis the necessary of protecting society by so

treating the prisoners that others will be deterred from breaking the law.

Criticism –The criticism deterrent theory contended that it has proved ineffective in

checking crime. Even when there is a provision for very severe punishment in the Penal

Law of the country, people continue to commit crimes. For example in the time of queen

Elizabeth, the punishment for Pickpocketing was death but inspite of that pickpockets were

seen busy in their work among the crowds which gathered to watch the execution of the

condemmed Pickpockets. It is pointed out that with the increase in the seventy of

punishment.

(2) Preventive Theory – According to this theory the object of punishment is preventive or

disabling. The offenders fare disabled from repeating the offences by such punishment as

imprisonment, death exile, forfeiture of office etc. By putting in Jail, he is prevented from

committing another crime.

Paton says – The Preventive theory concentrates on the Prisoner but seek to prevent him

from offending again in the future. Death penalty and exile serve the purpose of disabling

the offender. An example of Preventive Punishment is the cancellation of the driving

licence of a person as he has no licence. He is prevented from driving.


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Criticism – According to kant this theory Treats man as a thing not as a person. As a

means not as an end in himself. It conflicts with the sense of justice. It violates the

fundamental Principle of all free communities that the members of such communities have

equal rights to life, liberty and the personal security.

Relation between Deterrent Preventive Theories

There is a difference between deterrent and preventive theories of punishment. The

ditterent theory aims at giving a warning to the society at large that crime shall not pay.

Preventive theory aims at disabling the actual criminal from doing harm. The purpose of

the deterrent theory is to set a lesson in to others and show that crime does not pay. This

theory points out to the offender, and there of the world that ultimately punishment follows

the crime and therefore crime should be avoided in the care of preventive theory. The main

object of punishment is to diable the wrongdoer from repeating the crime. This theory does

not act so much on the motive of the wrongdoer but disables his physical power to commit

the offence.

Which Theory of punishment is suitable to India

A perfect system of criminal justice cannot be based on any one theory of punishment

even 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 must

be given its due pace. As salmond concludes that the perfect system of criminal justice, is

based on neither the reformative nor the deterrent principles what is required is a compromise

between the two and in that also the deterrent principles must have the predominant influence

thus it can fairly be said that a synthesis of reformative as well as of deterrent theory of

punishment is suitable to India.

(b) Argument against capital punishment

Ans.(b) Argument in favour of capital punishment

Some Jurists Argument


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(1) That there are some offenders who are not only in corrigible but who are immensely

dangerous to the society and there is no reason why the society should be burdened with

maintaining such people.

(2) It is to be noted that punishment by State is a suitable for private revenge and if a murderer

is not punished with death. It is quite possible that other relatives of the victim might

murder the murderer and thus a chain of murder might set in.

Thus it is clear that so long as human emotions are powerful the powers of vengeance

prevail and as such capital punishment is a necessary kind of punishment.

Conclusion : if can fairly be said that although capital punishment serves some purposes

but it must be awarded only in those cases where there are aggravating circumstances.

Is capital punishment unconstitutional

In Bachan Singh v/s State of Punjab AIR 1980 the constitutionality of death penalty for

murder provided u/s 302 I.P.C. and the sentencing procedure embodied in S. 354 (3) crpc

1973 was challenged in the Supreme Court. On the ground that they are violative of Arts

14, 19 and 21 of the constitution. The majority of the constitution bench held that

provisions of death penalty as alternative punishment for murder and also the sentencing

procedure in S-354 (3) do not violate arts 14, 19 and 21 of the constitution.

Q. 10 When does Custom become law? Point out the views of Austin in this regard critically.

What do you understand by the term source of Law and what are its kinds. Discuss the

importance of custom as a Source of Law.

Ans. Meaning of Source of Law- In the ordinary sense source of Law means the origin beginning

or the spring rise to the stream of the rule of Law. Actually the term source of Law issued in

different sense:-

(1) According to Austin- The source of Law is the authority from which the Law derives its force

or validity. In this sense, the source of Law is the sovereign or state.


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Definition of Custom

According to Austin- Custom is a rule of conduct which the governed observed spontaneously

and not in pursuance of a Law set by a political superior.

According to Holland- Custom is generally observed course of conduct.

According to Judicial committee

Custom is a rule which in a particular family or in a particular district has from long usage

obtained the force of Law.

Essentials of a Custom

According to Blackstone a custom to be recognized as law must satisfy the following

essentials:-

1. Antiquity:- By a fiction of Law human memory is made to extend for about 800

years.

2. Indian Rule:- According to Manu:-

1. Custom is transcendental Law

2. Continuity

3. Peaceable enjoyment

4. Obligation Force

5. Certainty

6. Consistency

7. Reasonableness

8. Conformity with the Statue Law

When does a Custom Become Law?

There are two opposite views about the question as to when does a custom become Law. The

one view is of the analytical school and the other is that of the Historical school. According to

Austin, the founder of analytical school, a custom becomes Law only when it is recognized by

the sovereign.


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Historical View- According to Savigny, the founder of Historical school, custom is per se Law,

i.e. custom is Law in itself and derives its binding force from its own. Force of Law before it is

recognized and applied by the courts of the state, a custom carries its justification in itself.

Criticism- Against these views, it is submitted that both the views are full of

exaggerations. The view of the analytical school that customs are not Law until recognized by

the sovereign – undoubtedly contains some truth. But it contains only partial and not the whole

truth. This approach is defective due to many reason. Salmond has rightly remarked that

although custom is not the formal source of Law yet it is material source which is called legal

source.

Kinds of Source of Law

1. Formal Source- A formal source is that from which a rule of Law derives its force and

validity.

2. Material source – A material source is that from which is derived the matter and not the

validity of the Law.

Importance of custom as a source of law

Although custom has lost its place as a source of law in modern age but it still exerts

great influence in certain areas such as personal laws, Mercantile law and even the

International Law. Particularly in the area of personal law. The need for a uniform civil code

as directed by Art 44 of Indian Constitution has been emphasized time and again so that a

rational law applicable to case of Mohammed Ahmad Khan V/S Shahbano has reiterated the

need for a uniform civil code which could be uniformly applicable to all the castes and

communities living in India so that differences as to caste and religion may be mitigated. It

would be a progressive step towards the attainment of the goal of welfare state.

Now a days, custom plays more important role in the Indian system than in England or

America. We have for instance, the mohammedan law rule of Pre-emption wherein the

neighbor has the first option of buying a plot of land about to be sold. An another example we

can take the Hindu Law rule of damdupat under which a debtor cannot be made to pay a sum

of interest which exceeds the Principal amount.


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Q.11 Judges are the discoverers of Law not the creators of law comment.

Ans There are two contrary theories regarding the question as to whether the Judges declare

the existing law or make the law.

(1) Theory that Judges declare the Law or declaratory theory

(2) Theory that Judges make the Law or legislative theory.

Theory that Judges declare the law or declaratory theory –

Maine has pointed out once that the judgement has been declared and reported. We start with

a new train of thought and frequently admit that the law has been modified.

According to Lord Esher –There is in fact no such thing as Judge made law for the judge do

not make the law though they frequently have to apply the existing law to the circumstances to

which it has not previously been automatically laid down that such law is applicable.

Declaratory theory is based on the fiction that the English law is an existing something

which is only declared by the Judges. This theory is known as the Traditional orthodox theory

of Judicial Precedent.

(3) Theory that Judges make the law or legislative theory –

The second theory is that Judges do not declare Law but make Law in the sense of

manufacturing or creating entirely new Law.

According to Lord Bacon – The new points decided by the Judges is a direct contribution

towards law making Prof. Dicey supports this view and give example of English common

law which has been made by the Judges through their judicial pronouncements.

Salmond a strong supporter of this views says that he is evidently troubled in mind as to

the true position of Precedent. He further says that both in law and equity declaratory

theory must be totally rejected.

Conclusion –

The above theories about making of law by the Judges are not exclusive of each other

but they are rather complementary and it will be seen that neither the purely declaratory theory

nor the purely legislative theory represents the whole truth Judges develop the law but can not

be said to legislate. The common law is not made but has grown and the more it changes the

more it remains the same thing.


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Q.12 What the kinds of possession

Ans. (1) Immediate and mediate

If the relation between the possessor and the thing possessed is a direct one it is called

immediate or direct possession. When this relation is through the intervention or agency of

some other person it is called mediate or indirect.

Three categories of mediate possession

First – the owner has possession through an agent or servant.

Second – the immediate possession is with a person who holds the thing on his own

possession.

Third – The immediate possession is with one person but it is bound to return the same after a

certain period.

(2) Corporeal and Incorporeal

Corporeal possession is the possession of a material object and incorporeal possession is

the possession of anything other than a material object. I have corporeal possession of

my car and books. But I have incorporeal possession of a Trade mark, a Patent and a

copyright.

(3) Representative Possession – Representative possession is that in which the owner has

possession of a thing through an agent or a servant.

(4) 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.

(5) Constructive possession – Constructive possession is not actual possession. It is a

possession in law and not in fact. The goods sold by me are lying in a warehouse and if I

hand over the key of the warehouse to the Purchaser, the latter comes to have the

constructive possession of the thing if I hand over the key of a building to a tenant.

(6) Adverse possession – The possession of property by a person is adverse to every other

person having or claiming to have a right to the possession of that property by virtue of a

different title.

(7) Duplicate possession – Possession is a right to exclusive use and it is not possible for

two persons to have independent and adverse claims to possession of the same thing

at the same time. The possession of co owners is a case of duplicate possession and

is usually called compossessio.


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Important Questions

Q.1 Define Jurisprudence according to salmond and Hollond what according to your would be the most appropriate definition of Jurisprudence.

Q.2. Critically Examine the statement that Law is the command of the sovereign and state whether this concept applies to Indian Judicial System.

Q.3. Law is the body of principles recognized and applied by the state in administration of Justice Discuss.?

Q.4.a) Distinguish between supreme and subarolin ate Legislation.

b) Why is Hans Kalson’s Legal theory could pune theory comment.

Q.5. What are the kinds of Punishment the Distinguish between deterrent and preventive theories of punishment? Do you think that reformative theory is most suitable for India.

Q.6. Define ownership . Give various kinds of ownership what are the model of its acquition.?

Q.7 What is pounds theory of Social engineering.

Q.8. Give the name of kinds of precedent. Also give one example of each and what there the kinds of possession.

Q.9. Give the meaning and definition of Legal rights. Whether and legal rights are fundamental rights.? Give also the classification of Legal rights in brief.?

Q.10 Discuss in short when does a custom become law.?

Or

Negligence is state of mind and not a conduct”?

Q.11.i) Contribution of Benthan

ii) Valksgrist Theory of Law

Q.12. Write a detailed essay on the Realist movement of Jurisprudence.?

Q.13. Do Judges make law or only declare the existing law? What are the different views in this regard.? Give Indian Practice,?

Q.14. A) Corporation sole and corporation aggregate.?

B) Define Legal Person Discuss whether the following arte legal


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Person.

i) President of India.

ii) Dead Body.

iii) Guru Granth Sahib.

iv) University.

Code-101

Documents

uniform civil code

kelsens pure theory

fundamental legal principles

civilized society men

social engineering

declaratory theory

positive morality

social facts