“JURISPRUDENCE”

(CODE :201

PERSONALITY

PERSONALITY Status of Dead Person

Legal Status of Lower Animals

Legal Status of Unborn Person

Legal Persons

CORPORATE PERSONALITY

Corporation: Sole and Aggregate

Theories of Legal (Corporate) Personality

A. Fiction Theory Savigny vis Salmond

B. Concession Theory

C. Bracket Theory (Symbolist Theory) R. Ihering

D. Hohfeld's Theory

E. Realist Theory

F. Purpose Theory

G. Kelson's Theory

Conclusions

Liabilities of Corporations

The term ‘person’ or ‘personality’ has been used in different sense for

different purposes. In moral sense, the term has been used to mean the rational sub-

stratum or quality of human being. In anthropological and biological sense, the term

‘person’ has been used to mean as one of the species. In law the word person is given

a wide meaning. Salmond says that so far as legal theory is concerned, a person is a

being whom the law regards as capable of bearing rights and duties. Any being that is

 

 

so capable is a person whether a human being or not and no being that is not so

capable is not a person, even though is a human being.

Thus law recognises not only the human beings but also the associations as

person. The term ‘personality’ should be distinguished from humanity. Humanity

means only human beings but personality includes inanimate objects also. Personality

is wider than humanity. Sometimes personality and humanity coincide and sometimes

not. There are human beings who are not persons in the legal sense such as outlaws

and slaves (in early times) and also idiots, minors and lunatics. In the same way there

are legal persons who are not human beings, such as an idol or a corporation. Legal

persons means an entity which is capable of suing or being sued. In the same way

there are legal persons who are not human beings, such as an idol or a corporation.

Broadly speaking the word Person can be divided into two types;

1. Natural Person

2. Legal Person

Natural Person: Natural Persons are those which are born as humans and it is

therefore that the role of legal governance formulated certain code of conduct to

safeguard their rights and for the welfare as well as for the development of the

society.

Legal Person: Legal Person is created by Law only. Without the knowledge

of law, no legal personality can be created. Since it was felt by the dynamic society

that the natural persons by themselves can not take the responsibility of all their

activities therefore it was thought necessary to confer legal personality to not only

living entities rather non living ones also.

Position of Slaves: In the olden times slaves were not treated as person in its

true meaning. They had been given a chance to work and get food but no right to

demand, as they were purely being governed by their masters. It means that the legal

system .does not provide any guidelines in which the old society could recognize the

rights & obligations of the slave. They were treated as movable property. But now the

situation has completely changed.

The position of slaves during the British period was very bad. The one

important saying of Duguit is “the only right which a man has to do is to do his

 

 

duty”, i.e., only obligations for an individual without exercising his abilities, but this

is not so in the present era.

This clearly shows that the slaves were merely the obeying and not the

commanding personality. But after Independence, our constitution makers have

clearly prohibited untouchability, slavery as well as any other form of forced labour

derogatory to the personality and well being of an individual. This is the only way

through which the real objective of equality can be achieved.

Status of Dead Person

Dead person in general have no rights because they have no interests. Their

legal personality is extinguished by death.

It is said that the legal personality is created from birth & ends with death but

sometimes desire of a dead person is protected by law. Basically the dead person gets

three types of rights:

1. Relating to his body (burial)

2. Relating to reputation

3. Related to his estate

The legal system recognises decent burial of dead person.

As far as reputation is concerned, the legal system protects the reputation of the

dead person to some extent. This is mainly true in, cases of defamation-it is said that

even a dead person has a right to safeguard his reputation. Any defamatory statement

which affects the reputation of the family of dead person or the dead person himself is

protected by the legal system under the civil as well as criminal liability. By way of

testamentary succession, a man can after his death, may continue to regulate and

determine the disposition and enjoyment of his property which he owed while living.

Legal Status of Lower Animals

In the present day context, the animals are deemed incapable of possessing

legal rights & duties. They are merely things, often the objects of legal rights and

duties but they are never subjects of them.

For example:-

 

 

A beast has no legal personality. Anything done to the animals may be a

wrong to its owner or to the society but it is no wrong to the beast. But the animals

have two rights to be protected.

1. Cruelty to animals is made a criminal offence.

2. A trust for benefit for a particular class of animals as opposed to one for

individual animal is valid and enforceable as a public and charitable one.

Personality of animals.

Legal Status of Unborn Person

Generally an unborn person has no legal standing in the eyes of law. However

it has to be distinguished from the one who is living but not yet born, i.e., a child in

womb of its mother-in utero and an unborn child in the sense of future generations. A

child in the uterus is regarded as a person in law in accordance with the maxim

Nascitures Pro Ham Nato Habetur i.e. One who is to be born is deemed to have been

born. The rights of an unborn person, whether personal or proprietary, are all

contingent on his birth as a living human being.

Right in the inherent property can be given to such a child if the child is born

alive. A posthumous child may inherit, but if he dies in the womb, or still born, his

inheritance fails to take effect and no one can claim through him. But if the child is

born alive even for seconds, his heirs may claim his share through inheritance.

Legal Persons

Legal persons, being the arbitrary creations of the law, may be of as many

kind as the law pleases. The important ones are:-

1) Corporations, Companies, etc.

2) Institutions e.g., a church, a hospital, a university, a library, etc.

3) Registered trade unions, friendly societies, etc.

4) Charitable fund, trust estate (e.g. property of a dead man).

5) The State.

 

 

The unincorporated associations e.g. a club, are not a legal person. The rights and

duties of a club are nothing more that the rights and duties of its members. A

partnership or firm is not a legal person, but yet resembles one in certain ways. It can

sue and be sued in its own name, and its property is separate from the property of its

members. But the rights of partnership are in fact the rights of the partners, as are its

liabilities; for the partners, are in general fully liable personally for the debts of the

firm. In contrast, a company or a corporation, is in law a distinct person from its

members; the members are not liable personally for the debts of the company. The

corporation is not a mere aggregate of shareholders (Salolllon v. Salomon & Co.,

1897 A.C.)

CORPORATE PERSONALITY

Corporation: Sole and Aggregate

Corporation are persons incorporated or politique created by the policy of

man. Corporation are of two types, viz. either sole or aggregate of many. A

corporation aggregate is an incorporated group of co-existing persons, and a

corporation sole is an incorporated series of successive persons. The former is that

which has several members at a time, while the latter is that which has only one

member at a time.

Corporations aggregate are by far the more numerous and important.

Examples are a registered company consisting of all the shareholders, and a municipal

corporation, consisting of the inhabitants of the borough.

Corporations sole are found only when the successive holders of some public

office are incorporated so as to constitute a single, permanent, and legal person. The

sovereign or king for example, is said to be a corporation of this kind at common law,

while the post master-general, the solicitor to the Treasury, the Secretary of State, the

Minister, have been endowed by statute with the same nature. In England, the chief

manifestation of

Corporate sole is also seen in the proclamation that is made on the death of

reigning monarch. The proclamation says ‘The king is dead’, ‘Long Live the King’. It

thus refers to with, to the individual who has died and the Corporation Sole that

survives.

 

 

The purposes of the corporation sole are analogous to those of the corporation

aggregate. The object of this device is to avoid the difficulties which are involved in

the transmission from each officer to his successor of the property, liabilities, and

contracts held, incurred or made by him in his official capacity. Such property,

liabilities and contracts are imputed by the law to the permanent corporations which

never dies or retires from office, as compared to individual holders of the office for

the time being.

Theories of Legal (Corporate) Personality

“When the law grants legal personality to a group, what is the nature of the

entity which is thus recognised? Most of the theories of legal personality suffer from

the common defect that they have attempted to answer this question. It is impossible

to discover a common essence which unifies all the entities on which legal personality

is conferred. However, the study of theories of legal personality is desirable, because

of the two reasons, firstly philosophical views as to the nature of groups (or

corporations) have been put forward as justification for working rules of flaw. Thus,

the fiction theory was used by some to restrict the power of corporations, and the

realist theory for widening their powers. A second reason for the study of theories

that have been developed to answer the question posed is that many of the purely

legal problems arising in connection with groups and associations cannot be fully

understood without some acquaintance with the nature of the entities which have

enjoyed legal personality.

It is important to note that all theories of legal personality have practical

consequences for life in society. However, with a little skill, one can reach almost any

practical result from any particular theory. Both the fiction and the realist theories

have been uphold for the same purpose and each for opposed ends. Duff suggests that

Saloman v. Salomon & Co. case can be reconciled with any theory, but is authority for

none.

A. Fiction Theory Savigny vis Salmond

Its principal supporters are Savigny and Salmond. As per this theory, Juritsic

persons are also treated as if they are persons i.e. human beings. In other words, the

 

 

theory presupposes that only human beings are ‘properly’ called ‘person’ of its own.

The Corporation not being a real person, it has no will, no mind, no ability to act. It

can have only so much as the law imputes to it by a fiction as if it were a real person.

Salmond said that a group has 'reality' or existence, but it has no real personality in the

philosophical sense. Savigny said that only a man is capable of rights and the original

concept of personality must coincide with the idea of man.

However, this has led to a great diversity among the different supporters of the

fiction theory as to its precise formulation and the practical results that should be

drawn from it. One deduction drawn from the fictional nature of a corporation was

that, as a corporation has only a fictional will imputed by the law, it could only will

lawful things. By definition, therefore it could not make itself liable for certain kinds

of legal wrongs; certainly it could not commit a crime involving any mental element

(Most rules of law are expressed with human beings in mind and they contain words

like ‘wilfully’, ‘intentionally’, ‘doing’, ‘acting’, ‘fraudulently’, etc.). Thus some

regarded the doctrine of ultravires as a deduction from the fiction theory, because a

corporation cannot go outside its Memorandum of Association (Constitution or

Charter of the Corporation).

Many of the practical effects of this theory which were at one time accepted

have been avoided by various devices. M. Wolff highlighted some of the defects of

this theory. It has been said to (a) being incompatible with the conception of

subjective right; (b) leading to dangerous political results e.g. confiscation of the

property of these personae factae (Le. persons of fiction); (c) being opposed to the

doctrine of free association.

B. Concession Theory

This is allied to the fiction theory and, in fact, supporters of the one tend also

to support the other.

Its main feature is that it regards the dignity of being a ‘juristic person’ as

having to be conceded by the State i.e., the law. The identification of 'law' with ‘State’

is necessary for this theory, but not for the fiction theory. A logical consequence of

this theory would be that a company incorporated in America would not be

recognised as a legal person unless it is specifically granted concession by Indian law.

 

 

It is a product of the era of power of the national State, which superseded the

Holy Roman Empire and in which the supremacy of the State was emphasised. It

follows, therefore, that the concession theory has been used for political purposes to

strengthen the State and to suppress autonomous bodies within it. No such body (i.e.,

corporation) has any claim to recognition as a 'person '. It is a matter of discretion

for the State.

So far as this theory maintains that the law is the only source from which legal

personality may flow, it states a truism. Whatever we may think the law should do,

few would maintain the legal personality can be secured otherwise than by

compliance with the conditions laid down by the legal order. The right to associate

should be distinguished from the question of the grant of legal personality to such

association as they exist. The law may prohibit all associations for any purposes. The

law may give wide liberty to association for lawful ends, but refuse legal personality.

The law may grant liberty of association and grant legal personality to some groups

and not to others. Legal personality may be regarded as a matter of fact to be achieved

by a certain degree of inner unity and organization. Even in this sense it is granted by

the law, since the law lays down the conditions which create legal personality.

But, if we regard this theory as laying down the sociological truth that all

group life (apart from the mere grant of legal personality) is created by the State, then

it is clearly both mischievous and erroneous.

C. Bracket Theory (Symbolist Theory) R. Ihering

This theory, put forward by R. Ihering, rests on the proposition that only

human beings can have interests and rights (and thus the word ‘person’ is confined to

them), and that a corporation is only a legal device of formula which will enable very

complex jural relations to be understood more easily. ‘Juristic person’ is but a symbol

to help in effectuating the purpose of the group, it amounts to putting a bracket round

the members in order to treat them as a unit. A, B and C from a company and as it is

inconvenient to refer always to all of them, a bracket is placed around them to which

a name is given but, in order to understand the real position or real state of affairs we

must remove the bracket.

 

 

This theory is criticised as a limited company is not just the same thing as its

member and statements about the former are not just abbreviations for statements

about the latter. To say that Smith & Co. Ltd. owes me 100 pounds is not an

abbreviated way of saying that every member of the company owes me a debt.

A court can pierce the veil (i.e., mask) of a corporation only under certain

conditions. Had this theory been accepted, there would have been no need of

generalising the conditions under which a court may lift the veil of corporation.

The theory analyses a corporation out of existence. It is true that most groups

exist to further the interests of individual men, but while we may regard legal

personality as merely a device of the law, it is to deny the law itself when we say that

the legal relations which are fixed and certain are those which are discovered by

removing ‘the brackets’ of corporation and analysing the relations of all the human

beings involved. New and separate entities are recognised as units in the legal system

by the system itself and such recognition makes possible a clear distinction between

the property, rights and duties of the legal person, on the one hand, and the individual

human beings which may be involved in the make-up of that legal person, on the

other hand.

Further, one can hardly make a contract with a bracket (unless that bracket has

been recognised by the legal system as a legal person). It is socially and economically

false, as well as legally untrue, to say that only individual man can be the bearers of

legal rights. The deductions drawn from this theory have been rejected repeatedly by

courts.

D. Hohfeld's Theory

Hohfeld drew a distinction between human beings and juristic persons. The

latter, he said, are the creation of arbitrary rules of procedure. Only human beings

have claims, duties, powers and liabilities. The 'corporate person; is merely a

procedural form, which is used to work out in a convenient way a mass of jural

relations of a large number of individuals, and to postpone the detailed working out

of these relations among the individuals inter se for a later and more appropriate

occasion. The theory closely resembles the bracket theory.

 

 

E. Realist Theory

According to this theory, a corporation is like a living organism, like a natural

human being, which also possesses natural rights. A corporation is not the creation of

a State, or fiction.

The modem realist theory builds on an analysis of human personality and

regards group personality as in essence possessing the same characteristics. Gierke

speaks of the group as having a real will, and real power of action. A corporation is

real but mysterious entity with a special type of existence.

If the power of the reason to organize experience and to direct action is

emphasised as the sole essential mark of personality. we may plausibly argue that a

group is a person". The same reason, which directs our individual lives, may be seen

in the life of the group working in the service of those ends which the group desires.

In the human personality, there is a feeling of individuality, of self-consciousness, an

‘experience centre’ which organizes experience. Attempts have been made to

discover a collective consciousness or experience centre for the group; but they have

not been successful (though one does find in the group a sense of the warmth and

intimacy which belong to self-consciousness). The theory fails to prove that the inner-

unity of the group exists otherwise than in the minds of the members who compose it.

Also, it is difficult to prove that there is a psychological continuity (of experiences) in

the group mind similar to that of the individual.

The realist theory may be more easily applied to certain groups than to others.

There may be very real analogies to human personality in the life of a nation, a group

or a university, but a one-man company or a foundation seems far removed.

F. Purpose Theory

The theory originally perpounded by Britz and developed by Baker, is based

on the assumption that person is applicable only to human beings. The so called

juristic persons are no person at all. Since juristic persons are treated as distinct from

their human substratum, if any, and since jural relations commonly vests in human

beings, they should be regarded simply as subjectless properties designed for certain

purposes. The theory was designed mainly to explain the foundation of German law

and also explain the vacant inheritance of Roman law.

 

 

G. Kelson's Theory

Kelson makes an analytical and formal approach to the concept of personality.

He rejected, for purposes oflaw, any contrast between human beings as ‘natural

persons’ and ‘Juristic Persons’. He also rejected the definition of person as an entity

which has claims and duties. According to him the totality of claims and duties is the

person in law; there is no entity distinct from them. Turning to corporations, he

pointed out that it is the conduct of human beings that is the subject matter of claims

and duties.

Conclusions

No single theory takes account of all aspects of the problem, and criticism

becomes easy. There is no ‘essence’ underlying the various uses of ‘persons’. Its

application to things other than human beings is purely a matter of legal convenience.

The theories are philosophical, political or analytical, but are not so much

concerned with finding solutions to practical problems as with trying to explain the

meaning of the word ‘person’. Courts, faced with problems of solving a case before it,

have proceeded according to policy, not logic. Thus, courts haven't adopted any

particular theory of corporate personality.

The way in which the idea of 'person' has been extended to corporation is no

longer suited to modem commerce. Here, it is not flexible enough. For instance, the

separate person of a corporation fails to cope with the problems of parent and

subsidiary companies. The courts have evolved ways of dealing with the group

activities without resorting to the device of persons. Thus, it seems that the legal

concept of ‘person is not efficient in today’s society.

Liabilities of Corporations

From the above discussion, it is amply clear that the corporation has no

physical existence. Therefore, its interests are only those which are attributed to it. So,

the acts of the corporation are those of its shareholders. The representatives of the

corporation are distinct from the members of the corporation.

 

 

OWNERSHIP

OWNERSHIP Meaning and element

Incidents

Definitions of Ownership

(a) Indefinite User

Unrestricted disposition

Unlimited duration

Holland's definition:

Salmond’s definition:

Other definitions:

Kinds of Ownership

Vested and Contingent Ownership

Sole and Co-ownership

Corporeal and Incorporeal Ownership

Legal and Equitable Ownership

Modes of Acquiring Ownership-Ancient and Modern Law

Ancient Hindu modes of acquisition of ownership

Ancient Western Law

Modern Law

POINTS TO REMEMBER

The institution of property has been of tremendous significance in human

affairs. The two important rights over or in relation to property are the rights of

ownership and that of possession. These two concepts have certain similarities yet in

their legal connotation and incidents they differ vitally.

In primitive societies the only concept known to human mind was that of

possession. It was much later that the concept of ownership was adopted. So long as

men were huntsmen or herdsmen they were nomadic in character and had no settled

habitation, had no sense of ownership. Gradually with the planting of trees and the

 

 

cultivation of land and the settlement of a local home, the notion of ownership began

to grow. This synchronised with the change from a nomadic to settled life. This

transition from a pastoral to an agricultural economy facilitated the development of

the idea of individual right to property which is the basis of the concept of ownership

in a relatively developed society.

Meaning and element

The literal meaning of the term 'own' is to have or hold a thing. The one who

holds a thing as his own is said to be the owner and has the right of ownership over it.

Thus in the non-legal sense ownership may be defined as the right of exclusive

control over and disposal of a thing at will.

In the legal sense the term ownership carries the connotation of right over a

thing to the exclusion of all other persons. This implies non-interference by others in

the exercise of this right and must be distinguished from mere holding of a thing in

one's possession.

Ownership implies two elements, one is formal element, namely, will, power,

capacity, faculty, etc. Another is the material element i.e., the thing owned. For

example if ‘A’ has Rs. 100-it (Rs.100) constitutes the material element of his

ownership, while his power under the law to spend it, to gift it or to will it is the

formal element of his ownership.

Incidents

Normally ownership implies, (a) the right to possess; (b) the right to use; (c)

the right to manage; (d) the right to the capital; (e) the right to the income.

The owner of a thing has the right to possess it, to the exclusion of all others

i.e., the owner has exclusive physical control of a thing or such control as the nature

of the thing admits. Generally speaking, one who owns also possess a thing but this is

not necessarily and always so. Thus to cite only a few examples, the owner may have

been wrongfully deprived of it or may have voluntarily divested himself of it. If A's

watch is stolen by B, the latter has possession but the former remains the owner with

an immediate right to possess. In case of lease and mortgage, the owner (i.e., the

 

 

lessor and the mortgagor) owns the property without possessing it, the possession lies,

with the lessee and the mortgagee.

The owner has the right to use the subject-matter of ownership according to

his own discretion. Here ‘use’ means personal use and enjoyment of the thing by the

owner. This right of enjoyment or use is not absolute; it can be and is in fact, limited

by law. This does not mean that an owner cannot use the thing in a way he likes, but

he cannot thereby disturb the rights of others. Suppose ‘A’ owns a transistor, he can

tune it at any time for listening to music, for news or for commentary, but in doing so

he is to take care that he does not disturb the right of others. Thus he cannot tune it at

a high pitch and at an odd time so as to disturb the sleep of others.

The owner has the right to manage i.e., he has the right to decide how and by

whom the thing owned shall be used. The owner has the power of contracting, the

power to admit others to one's land, to permit others to use one's things, to define the

limits of such permission, to create a right of easement over his land in favour of a

third person, etc. etc.

One who owns a thing has also the right to alienate the same or to waste,

destroy or to consume the whole or part of it. The right to consume and destroy are

straightforward liberties. The right to alienate i.e., the right to transfer his rights over

object to another involves the existence of a power. Almost all legal systems provide

for alienation and prescribed the mode in which it can be done. Thus in India and in

most of other legal systems alienation takes place by way of sale, mortgage, lease,

exchange, will, gift, etc.

In India the Transfer of Property Act prescribes the rules or procedure for

alienation. The right of alienation is the exclusive right of the owner. A non-owner

may have the possession of a thing but he cannot transfer the right of ownership of

such thing to another e.g., in case of a lease, a lessee may have the possession of the

leased property but he cannot transfer it because that is the exclusive right of the

lessor who only can do so.

The owner of a thing has not only the right to possess the thing but also the

right to the fruits and income of the thing within the limits, if any, laid down by the

law. Suppose ‘A’ has a land, he has not only the right to possess that land but he can

enjoy benefits resulting therefrom e.g., produce, fruits, crops, etc. etc. Sometimes the

 

 

use or the occupation of a thing may be regarded as the simplest way of deriving an

income from it and of enjoying it.

Definitions of Ownership

Different writers have defined ownership in different ways. Austin defined

ownership as ‘a right indefinite in point of user, unrestricted in point of disposition

and unlimited in point of duration.

Austin’s definition thus implies three attributes viz.,

a) indefinite user;

b) unrestricted disposition; and

c) unlimited duration.

(a) Indefinite User

By right of indefinite user Austin means that the owner of the thing is free to

use or misuse the thing in a way he likes. The owner of a land may use it for walking,

for building a house or for gardening and so forth. However, Austin was cautious

enough to use the term “indefinite”. He did not use the term “absolute” or

“unlimited”. The owner thus is not absolutely free to use the thing owned in any way

he likes. His use of the thing is conditioned by requirements or restrictions imposed

by the law. The owner must not use the thing owned as to injure the rights of others.

This principle is the foundation of the well known maxim ‘Sie utere tero ut alierum

non laedas’: the meaning of this maxim being that use your own property as not to

injure your neighbour's right. Again, the use of property may be restricted voluntarily

e.g., when a person gives his land or a house to a tenant. The use may also be

restricted by law in the interest of the community e.g., Town Planning Act, Slum

Clearance Act, 1955 etc. etc.

Unrestricted disposition

What Austin implies by unrestricted disposition is that the power of

disposition of the owner is unhampered by law meaning thereby that he is absolutely

free to dispose it to anyone.

 

 

This is incorrect. In case of lease of a thousand years, servitudes and

restrictive covenants, plenary control of a property is not possible. Moreover, in the

law of some of the western countries there is a rule of ‘re legitima portis’ which

means that a person cannot dispose of his entire property. He has to keep a certain

portion of the property for the members of his family. Under Mohammedan Law a

similar rule prevails, namely, a person cannot dispose of by will etc. more than 1/3 of

his property to a stranger. In England, as well as in India a transfer of property made

with the intention of defeating and delaying creditors would be set aside. Wherever

the law of pre-emption prevails the right of disposition is restricted. So much so the

law can impose any restriction on the power of disposition. As under Hindu law a

Hindu governed by the Mitakshara law cannot alienate ancestral immovable property

without the consent of other coparceners except for legal necessity.

Unlimited duration

What Austin implies by this is that ownership of a person cannot be cut short

and the owner can continue to be the owner as long as he likes.

This is also incorrect since almost under every legal system the state possesses

the power to take over the property of any person in public interest. The abolition of

Zamindari System in India, the abolition of Privy Purses, Nationalisation of Banks

etc. are some examples of the fact that ownership can be cut short by the state for

public purpose and its duration is not unlimited.

Austin's. definition of ownership might have been more, if not wholly, correct

when the doctrine of laissez-faire prevailed. It is absolutely unacceptable under the

modern law.

Holland's definition: Austin's definition of ownership has been followed by

Holland. He defines ownership as plenary control over an object. According to him an

owner has three rights on the subject owned -

1) Possession

2) Enjoyment

3) Disposition

 

 

Plenary control over an object implies complete control unrestricted by any law or

fact. Thus, the criticism levelled against Austin's definition would apply to that given

by Holland in so far as the implication of the term “plenary control” goes.

Salmond’s definition: Salmond says 'Ownership in most comprehensive

significance denotes the relation between a person and any right that is vested in him'.

That which a man owns, according to him, is in all cases a right. Ownership in this

wider sense, extends to all classes of rights, whether proprietary or personal, in rem or

in personam, in re-propria or in re-aliena. He adds, that it applies not only to rights in

the strict sense but also to liberties, powers and immunities.

Thus, according to Salmond ownership vests in the owner a complex of rights

which he exercises to the exclusion of all others. For Salmond what constitutes

ownership-a bundle of rights which inhere in an individual. Salmond's definition thus

points out two attributes of ownership -

(a) ownership is a relation between a person and rights that is vested in him;

(b) ownership is incorporeal (immaterial, having no material body or form).

For Salmond a man may own a copyright, or a right of way in the same way as

he owns a piece of land because in all these cases he owns only a right and not a

thing.

Salmond's definition does not indicate the content of ownership. It does not

indicate the rights, powers etc. which are implied in the concept of ownership. Again,

it is not wholly correct to say that ownership is a relation between a person and any

rights that are vested in him as the most popular and common idea of ownership is a

relationship between a person and a thing. Duguit says the thing is what is owned and

not the right which does not really exist.

There is an element of truth in Salmond's definition. Salmond has rightly

pointed out that the subject-matters of ownership can be not only material things e.g.,

land, watch etc. but also incorporeal and immaterial objects e.g., copyrights or

patents. In either case there is a bundle of rights, claims and power etc. which go to

constitute ownership.

 

 

Other definitions: Hohfield expresses a similar view (like that of

Salmond)when he says ownership is not a right but a bundle of rights, privileges,

powers etc.

However, the distinction made by Hohfield is one without a difference. Since

it is like calling a bucket of water as not a bucket of water but a bucket of millions of

drops of water. Hohfield adds that this collection of privileges, rights, powers etc. are

frequently found to reside either for a limited period or perpetually in a person other

than the owner.

Fredrick Pollock improves upon the other definitions when he defines

ownership “as the entirety of the power of use and disposal allowed by law”. Prof.

Keeton expresses a similar view when he observes that ownership is the ultimate right

to the enjoyment of a thing, as fully as the state permits when all prior rights in the

thing vested in persons other than the one entitled to the ultimate use are exhausted.

These two definitions give relatively a more proper connotation of the term

‘ownership’. They bring out the most important fact that ownership is always subject

to limitations imposed by the law; it is the ultimate right to the enjoyment of a thing

subject to the condition or restriction imposed by the law as to the use of the thing

owned. Keeton has added another obvious dimension to the definition of ownership

when he speaks of ultimate use after all rights vested in persons other than the one

entitled to the ultimate use are exhausted". Thus, the owner may mortgage his house,

give it to a tenant etc. etc. yet he is the person who is entitled to the ultimate use of the

thing after the rights of the mortgagee or tenant are exhausted.

We may in conclusion say that-

a) Ownership is a right which comprises of powers, claims, privileges, etc.

b) Ownership is in respect of a thing which may be corporeal or

c) The rights relating to or in connection with ownership are subject to state

regulation i.e., can be limited or restricted by law.

d) Owner is he who is entitled to the residue of rights with respect to an object

left after the limitation resulting from the voluntary acts of the owner

(mortgage, lease or hire) or those imposed by law are exhausted,

e) Ownership does not imply or indicate absolute or unlimited rights either

regarding use, disposal or duration.

 

 

Kinds of Ownership

Ownership may be of various kinds. Broadly, it may be classified under the

following heads-

(1) Vested and Contingent ownership.

(2) Sole and Co-ownership.

(3) Corporeal and Incorporeal ownership.

(4) Legal and Equitable ownership.

(5) Trust and Beneficial ownership.

(6) Absolute & Limited ownership.

Vested and Contingent Ownership

Ownership is either vested or contingent. It is vested when all the events

essential to vest property in the owner have happened and the owner's title is already

perfect. Thus if A sells a house to B for a price settled, the other formalities prescribed

by law e.g., registration etc. are complied with, B becomes a vested owner of the

house. A vested ownership does not depend upon the fulfillment of any condition but

creates an immediate right though its enjoyment may be postponed to a future date,

e.g., suppose there is a transfer of property to A for life then to B, here B's interest is

vested one because B need not fulfill any condition precedent and his title is perfect,

he is entitled to take possession the moment A dies. Thus, the aforesaid transfer only

postpones his right to his enjoyment to a future date. Again, suppose A makes’ a

transfer in favour of B Rs. 10,000 to be paid to him upon his attaining the age of 18.

Here B's interest is vested, he would be getting the money as soon as he attains the

age of 18.

Section 19 of the Transfer of Property Act, 1882 lays down the rules regarding

vested interests. According to this section where on a transfer of property an interest

therein is created in favour of a person without specifying the time when it is to take

effect, or in terms specifying that it is to take effect forthwith or on the happening of

an event which must happen such interest is vested, unless a contrary intention

appears from the terms of the transfer.

 

 

Contingent ownership is conditional. In this case the transfer· of interest in

property is subjected to certain condition or conditions. The vesting of the right in

such cases depends upon the happening of such event or fulfillment of such condition.

Thus, if property is transferred to A for life then to B, if B marries C, B's interest is

such that it cannot take place as soon as A dies, because there is a condition which B

is to fulfill viz., that he must marry C. Until B fulfils this condition his interest is

contingent depending upon the fulfillment of the condition. Again, an estate is

bequeathed to A if he shall pay Rs. 500 to B-here As interest in the bequest is

contingent until he has paid Rs. 500 to B. The condition on which ownership depends

may be either a condition precedent or condition subsequent. A condition precedent is

one by the fulfillment of which a title is completed, a condition subsequent is one on

the fulfillment of which a title already completed is extinguished. In the former case

one acquires absolutely what he has already acquired conditionally. In the latter case

one looses absolutely what he has already lost conditionally. Section 21 of Transfer of

Property Act provides rules of contingent interest. According to this Section, where

on a transfer of property, an interest therein is created in favour of a person to take

effect only on the happening of a specified uncertain event or if a specified uncertain

event shall not happen, such person thereby acquires a contingent interest in the

property.

Sole and Co-ownership

When the right of ownership is exclusively vested in one person it is called

sole ownership. When property is jointly held by several persons at the same time it is

called co-ownership. The property held by the partners in a firm is an example of co-

ownership. According to English Law co-ownership is further sub-divided into joint

tenancy and tenancy-in-common. It may be in the form of joint tenant when interest in

property is considered as single unit. These type of tenancy arose wherever land was

conveyed in favour of more than one person by a single instrument without words of

severance, i.e., without indicating or apportioning the extent of interest of each person

in the property or indicates the portion to which one of them severally would be

entitled. Since in joint tenancy interest is considered as single unit, a joint tenant

cannot maintain an action for trespass against the other joint tenant but he can

 

 

maintain an action of trespass, against a third person. The most important

characteristic of joint tenancy is the right of survivorship. Thus, if A and B are joint

tenants and A dies first his interest in property pass to B by survivorship. The typical

example of joint tenancy in India is that in case of a mitakshara coparcenary where

the interest in property is held jointly by coparceners and they have the right of

survivorship. After the death of one or more of the coparceners the property goes to

surviving coparceners, by virtue of survivorship. Nowhere else is the principle of joint

tenancy applied in Hindu Law.

Under English law a joint tenancy may be severed and converted into a

tenancy-in-common by one of the joint tenants disposing of or contracting to sell his

interest or by mutual agreement or by a course of dealing of all the joint tenants

sufficient to indicate a severence. A tenancy-in-common may arise by operation of

equity e.g., when more than one person jointly purchase a house contributing equal

amounts and take conveyance in joint name, they become tenants-in-common in

proportion to their contribution to the share of purchase money. A tenant-in-common

is entitled to joint possession and if excluded from such possession, may sue for a

declaration of his right. If there is no exclusion or denial of his right as a tenant-in-

common but one of the tenants gives up joint possession he has no right to sue for his

share of the joint profit. There is no right of survivorship in case of tenancy-in-

common so on the death of a tenant-in-common his share goes to his legal

representative. Thus, tenancy-in-common implies only unity of possession but not of

title whereas joint tenancy implied both unity of possession and title.

Corporeal and Incorporeal Ownership

Corporeal ownership is the ownership of material or tangible things or objects.

It is the ownership of those things which we can see and touch. That is to say

corporeal ownership relates to corporeal property, immovable, or movable.

Immovable property includes land and buildings and things attached to the land.

Whatever is planted to the land goes to the land. Thus, if A builds a house on his land

with B’s materials, A becomes the legal owner also of the building. It has been laid

down- ‘Quia omne quod solo inacdifioatur solo cedit i.e., by whatever means it be,

 

 

what is affixed to the land becomes eroded to it. Movable property means and

includes things not attached to the land, and personal effects. When what is attached

to the land becomes a movable property when separated from the land. Incorporeal

ownership is the ownership of intangible object-object which cannot be perceived and

felt by touch i.e., the ownership of a right, for example, a debt, a patent, goodwill,

trademark etc. etc. Incorporeal ownership, according to Salmond, is an ownership in

the sense of the term i.e., ownership of all kinds of rights.

Legal and Equitable Ownership

This classification of ownership is recognized in England. This difference

between the two of the ownerships has its origin in the rules of common law and

equity. In England, the original law was the common law-the law based on the

common custom of the country which was developed and administered by the

common law courts. But in the course of time the common law became a definite

body of rules which was not capable of growth in various directions and even caused

hardship and injustice in particular cases owing to the inflexibility of its procedure

and modes of redress. Rules of Equity were developed by the chancellors who sat in

the Chancery as the ‘Keeper of the King’s Conscience’, to give relief in cases of

hardship by the application of the principles of morality or conscience. Thus, in

England before the passage of Judicature Acts of 1873 and 1875, two types of courts

with two distinct jurisdictions were functioning. The two courts were known as the

Court of Common Law and the Court of Equity. The right recognised and protected

by the common law courts were known as the common law right whereas the right

recognized and protected by the Equity Courts were known as the equity rights.

Judicature Acts of 1873 and 1875, amalgamated two courts but still today equitable

ownership is recognised in England as it gets recognition by the Equity Bench of

Common Law Courts. Originally legal ownership meant that which had its origin in

the rules of the common law, while equitable ownership meant that which resulted

from the rules of equity divergent from the common law. The courts of common law

refused to recognize equitable ownership and denied that the equitable owner was an

owner at all. On the other hand, the Court of Chancery adopted a very different

attitude. Here the legal owner was recognised no less than the equitable but the former

 

 

was treated as a trustee for the latter. The Court of Chancery vindicated the principles

of equity, not by denying the existence of the legal owner but by taking from him the

beneficial enjoyment of his property. Thus, in England legal owner is one whom the

common law would designate as the ‘owner’ whereas the equitable owner is the

person whose ownership is protected by the Chancery Bench. So when property is

given by ‘A’ to ‘B’ for the benefit of ‘C’-‘B’ becomes the legal owner and ‘C’-the

equitable owner. The Bench of Equity protects C's interest, even though legal

ownership remains in ‘B’. Both law and equity consider ‘D’ as the legal owner. The

Equity Bench, however, prevents the legal owner from dealing with the property in

derogation of the beneficiary’s interest.

In India, the distinction between legal and equitable ownership is not

recognized. It was observed in Tagore v. Tagore,1 that in India, under the Indian

Trust Act a beneficiary’s interest is not an interest in the trust property but an interest

by way of a right against the trustee who are regarded as the legal owners of trust

property. The trustees are, subject to the law relating to trust and trustees, bound to

carry out the trust according to the dictates of the maker of the trust. If the trustees fail

to do so, the beneficiaries can have their rights enforced against the trustees as a

matter of right.

Modes of Acquiring Ownership-Ancient and Modern Law

The acquisition of ownership may take place either in respect of a thing which

had no previous owner or in respect of a thing which had a previous owner. If the

thing had not a previous owner, then the ownership of one person is transferred to

another. If it had a previous owner, then a new ownership is created. Thus, a bird in

the air would belong to one who shoots it and takes possession of it. However, in case

of a house owned by A, the ownership can be transferred to B in accordance with the

provisions of the law.

Ancient Hindu modes of acquisition of ownership

Ancient Hindu jurists have said much about the means of acquiring ownership.

Manu declared that, there are seven virtuous means of acquisition of wealth, viz.,

inheritance, gain, purchase, conquest, application (of wealth), employment of work of

 

 

and acceptance of gifts from proper persons. Gautma gives almost the same seven

ways of acquiring ownership but he put some modifications to the list given by Manu.

For him ownership arises from succession, purchase, partition, occupation of

inappropriate property and finding of hidden treasures or the like, to which may be

added acceptance of gifts in the case of Brahmans, conquest in the case of Vaisyas

and wages of labour in the case of Sudras. Narada enters into a little more details and

says that there are twelve different modes of acquiring wealth of which three are

general (i.e., open to all castes) and the rest are peculiar to several castes. These

specific modes of acquiring wealth are proper for several castes and any contravention

is reprehensible unless forced by' pressing necessity.

Ancient Western Law

Following were the modes of acquisition of ownership under ancient Western

law:-

(a) Occupation.- Under Roman Law the term “occupacio” connoted that for

the acquisition of ownership of or hunted animals, it was immaterial to see whether a

man took wild beast or birds upon his own ground or that of another. But English law

did not ascribe ownership to a trespasser who killed game on another persons land.

Under Hindu law· the term ‘occupacio’ was known as ‘parigraha’ which means

appropriation and is explained in the Viramitrodya as signifying the appropriation of

previously unappointed property such as straw, water, logs of wood, etc. from a forest

which is open to the public as not being under the ownership of any particular

individual.

(b) Finding of Treasure trover.- Under Roman law, if any treasure was

found by the owner of the land where it lay concealed, he could keep the whole of it,

if it is found by another person then the finder and the owner of the land take it with

equal distribution.

Under English law, neither the finder, nor the owner of the land had any

interest in it but it belonged entirely to the Crown. Non-disclosure of it was regarded

as an offence. The Hindu Law relating to treasure trover has been described by

Yajnavalkya. He said that if the King discovers the treasure trover, then he will take

half and distribute the other half among Brahmans, if a learned Brahman finds it, then

 

 

he may keep the whole himself in other cases the King will give one-sixth to the

finder and take the rest himself but if the finder does not bring the fact to the notice of

the King then he will, on coming to know of it extract the whole and also punish the

finder. To this Mitakshara adds, on the authority of Manu, that even in such a case if

the real owner comes forward and establishes his title, the King will restore the

treasure to him after retaining one-sixth or one-twelfth for himself, or according to

Nilakantha one-fourth for himself and one-twelfth for the finder.

(c) Conquest by War.- According to Roman and English law the property of

the enemy was regarded as res nullius so the victorious party could deal with it in any

way they liked. Even the property of private individuals in the conquered country

could be freely disposed of by the conquering state and no 'private rights can be set up

against it. Hindu Law did not recognise this rule. Under Hindu Law conquest is an.

independent. source of acquisition of ownership. According to it conquest did not take

away all private rights the only effect was to invest the victorious Kings with all the

rights which defeated King had-so the former might claim full ownership of the

property of the latter but his right so far property of the subjects were concerned did

not extend to anything more than to collect revenue from them.

(d) Accession.-Accession or application of already existing property was a

mode of acquiring ownership, which was known both under Roman and English law.

Thus, if a field produces crops or a domestic animal bears offspring, the produce in

each case belongs to the owner of the field or the animal unless there has been some

previous agreement modifying the general rule. This rule was known as Proyago

under Hindu law. Thus, according to Hindu law, if a river which flows between two

villages and forms the boundary between them encroaches upon one bank and

attaches newly formed land to another then the owner of the bank on which the

formation takes place becomes entitled to it as an accretion to his property.

Modern Law

Under modern law there are the following modes of acquiring ownership

which may be broadly classed under two heads, viz.,-

 

 

1. Original mode, and

2. Derivative mode.

The original mode is the result of some independent personal act of the acquirer

himself. This mode of acquisition may be of three kinds-(a) absolute, when a

ownership is acquired over previously ownerless object (i.e., res nullius rule-who took

it first became the owner) e.g., when one shoots a bird or deer in a jungle open to

public he gets the ownership. (b) Extinctive, that is where there is extinction of

previous ownership by an independent adverse act on the part of the acquirer, e.g.,

prescription. This is how a right of easement is acquired after a passage of time

prescribed by law.

(c) Accessory that is when requisition of ownership is the result of accession. For

example, if tree bears fruits, the produce belongs to the owner unless he has parted

with the rights to the same.

When ownership is derived from a previous owner it is called derivative

acquisition. That is derivative mode takes place from· the title of a prior owner. It is

derived either by purchase, exchange, will, gift etc. Every legal system of the world

provides some rules for the requisition of ownership by this mode. Indian Transfer of

Property Act provides rules for the transfer of immovable property, Sale of Goods Act

lays down rule for the transfer of movable property, Partnership Act for the transfer of

property of the firm and the Companies Act for the transfer of company property.

POINTS TO REMEMBER

1. In primitive society the only concept known to human mind was that of

possession.

2. It was much later that the concept of ownership came into existence.

3. Ownership is a right over the thing to the exclusion of all other persons.

4. Ownership implies two elements viz. formal and material.

5. Will, power, capacity, faculty, etc. are the formal element· of ownership.

6. The thing owned is the material elements of ownership.

7. Right to possess, use, manage, right to the capital and right to the income are

the important incidents of ownership.

 

 

8. Ownership, however, does not imply or indicate absolute or unlimited rights

either regarding use, disposal or duration.

9. The rights relating to or connected with ownership are subject to state

regulations, i.e. can be limited or restricted by law.

10. Ownership is a social institution. The extent of the rights, privileges, powers

and immunities that are exercisable by an owner- reflect the social policy of a

particular legal system.

11. Under modern law there are mainly two modes of acquiring ownership-

original mode, derivative mode.

12. The original mode is the result of some independent personal act , of the

acquirer himself.

13. When ownership is derived from a previous owner it is called derivative

acquisition.

14. It is derived either by purchase, exchange, will, gift etc.

 

 

Do the Judge make Law?

Declaratory Theory

The Original Law Making Theory

Advantages of case-law

POINTS TO REMEMBER

Do the Judge make Law?

There is a controversy on this point viz., do judges make law? There are two

theories-

1. Declaratory theory -

2. Original Law Making theory

Declaratory Theory

Main exponents of this theory are Hale, Blackstone and Carter. According to

them a judge declares the existing law. Judges only discover the existing laws, the

particular principles that govern individual cases. Through their interpretation they

give a new shape to the existing law. Hale, one of the supporters of this theory says

that Parliament alone legislates, in the strict sense the judges only expound the law.

They are the finders of law.

Austin and Bentham have criticized this theory. They said that it is wrong to

assume that judges only declare law but by interpreting laws, by giving new shape

judges make laws.

The Original Law Making Theory

Supporters of this theory are Lord Bacon, Dicey, Gray and Salmond.

According to them Judges make law in the same sense in which the legislator makes

it. They are guided by certain principles, conventions and ideals. The supporters of the

second theory mostly belong to common law countries where the judges have played

a great creative role in moulding the law. The role of the judges were so significant

and dominant in England that English Law is sometimes called as judge-made law.

This led to the supporters of this theory to conclude that judges are the makers of law.

 

 

This theory has been criticised on the ground that judges cannot make law, in

the sense a legislature makes a law. Law-making power of legislature is different from

judges making law. Judges by interpreting the existing law give a new shape which

also ultimately Comes under the province of the making of law but it is absolutely

different from legislatures’ powers. To conclude, we can say that judges do declare

the existing law but at the same time judges do make law. Justice Mathew in

Kesavanand v. State of Kerala very aptly has described the role of judges. He says,

‘that the judicial function is like legislation, both creation and application of law. The

judicial function is ordinarily determined by the general norms both as to the Contents

of the norms to be created, whereas legislation is usually determined by the

Constitution only in the former respect. But that is difference in degree only. From a

dynamic point of view, the individual norm created by the judicial decision is a stage

in process beginning with the establishment of the first Constitution continued by

legislation and customs and leading to the judicial decisions. The Court not merely

formulates already existing law although it is generally asserted to be SQ. It does not

only ‘seek’ and ‘find’ the law existing previous to its decision, it does not merely

pronounce the law which exists already and finished prior to its pronouncements.

Both in establishing the presence of the conditions and in stipulating the sanctions, the

judicial decision has a constitutive character. The law-creating function of the Courts

is specially manifest when the judicial decision creates a general norm. Where the

Courts are entitled not only to apply pre-existing substantive law in their decisions,

but also to create new law for Concrete cases, there is a comprehensible inclination to

give these judicial decisions the character of precedents. Within such a legal system

Courts are legislative organs in exactly the same sense as the organ which is called the

legislator in the narrower and ordinary sense of the terms. Courts are creators of

general legal norms”.

Advantages of case-law

The principal advantages of case-law are as follows:-

1) Case-law is the outcome of practical needs considered by men of the highest

practical experience and therefore it is Sure to be in harmony with the needs of

society. In other words, the law that a judge makes is bound to be in

 

 

conformity with public opinion because the judge himself is a member of

society for which he lays down the law.

2) In case-law it is the ratio that matters and Judge can take his own time to

explain fully the principle he lays down.

3) A judge in formulating a rule of law is trying to solve an actual concrete

problem. Hence, the law that the judge makes is bound to be more satisfying

and complete than the law made by the legislature.

4) Case-law is bound to be of fine workmanship as it is formulated by people

who have a special training in law.

POINTS TO REMEMBER

1. Judicial precedent is an important source of law.

2. In England its importance is much more than in any continental country.

3. Precedent means a case decided previously.

4. Precedent furnishes as authority which under many circumstances binds a

court to make the same decision in future in a similar case.

5. The doctrine of judicial precedent was not known to India before the

establishment of British rule in India.

6. It got judicial recognition under section 212 of the Government of India Act,

1935.

7. The position of precedent became clear after 1950 and the doctrine got a

constitutional recognition.

8. Article 141 of the Constitution of India provides that law declared by the

Supreme Court shall be binding on all courts within the territory of India.

9. Ratio decidendi of a decision is the principle of law formulated by the judge

for the purpose of deciding the case.

10. Obiter dicta are the observations made by the judges while deciding a case.

11. Ratio decidendi of a case is having a binding effect upon a subordinate court.

12. Obiter dicta generally has no binding effect.

13. In India the obiter of the Supreme Court is binding upon the High Courts if the

Supreme Court has enunciated or declared some principle of law.

14. There are mainly two theories on the point viz. do the judges make law.

 

 

15. According to dec1aratry theory judges only declare law, no new law is created

by the judges.

16. According to original law-making theory supported by all the jurists belonging

to England, judges do make new law.

 

 

POSSESSION

POSSESSION

DEFINITION

ITS ESSENTIALS

MENTAL ATTITUDE OF THE POSSESSOR

RELATION OF THE POSSESSOR TO OTHER PERSONS

RELATION OF THE POSSESSOR TO THE THING POSSESSED

Legal consequences of possession

KINDS OF POSSESSION

MODES OF ACQUIRING POSSESSION

‘Possession’ and ‘Ownership’ distinguished

POSSESSION POSSESSORY REMEDIES

Why Possessory Remedies are recognised

POSSESSORY REMEDIES AND ENGLISH LAW

(The Doctrine of jus tertii)

ADVERSE POSSESSION

CASES

DEFINITION

“Few relationships are as vital to man as that of possession, and we may

expect any system of law, however primitive, to provide rules for its protection.

Human life and human’ society, as we know them, would be impossible without the

use and consumption of material things. We need food to eat, clothes to wear and

tools to use, in order to win a living from our environment. But to eat food, we must

first get hold of it, to wear clothes, we must have them, and to use tools, we must

possess them. Possession of material things then is essential to life; it is the most basic

relationship between men and things”.- Salmond.

However, mere acquisition of possession would not be enough. Society must

also provide a climate of respect for individual possession. Thus, if a man could never

be sure that the food in his plate, the coat on his back and the tool in his hand will not

be snatched away by his neighbour, life in such a society would become difficult. It is

for this reason that law must provide for the safeguarding of possession.

 

 

“But the concept of possession is as difficult to define as it is essential to

protect". (Salmond) It should, therefore, be noted, at the very outset, that the word

possession has many meanings, depending upon the context in which it is used, and

that it would, therefore, be futile to search for the proper meaning. Thus; A might

possess a car, B might possess a right to sue for that car, - whilst C might just possess

an excellent sense of humour. However, he lawyer is concerned with the meaning of

the term as used in legal parlance. In this sense, the possessing of a material object

can be said to be the continuing exercise of a claim to the exclusive use of such object.

Paton rightly points out that, in English law, one can clearly see a struggle

between convenience and theory. Theory seeks to discover an underlying thread, one

unitary concept in the interests of consistency and harmony. On the other hand, judges

feel reluctant to lay down any general principles and seek to dispose of particular

cases so as to render justice in every case. One thing, the learned author says, is clear,

and it is that “English law has never worked out a completely logical and exhaustive

definition of possession”.

ITS ESSENTIALS

Possession involves two distinct elements, one of which is mental or

subjective, the other, physical or objective. These were distinguished by the Roman

lawyers as animus and corpus, The subjective element is more particularly called

animus possidendi, or animus domini. “Neither of these”, observes Salmond, "is

sufficient by itself. Possession begins only with their union, and lasts only until one or

the other of them disappears”.

1. Animus possidendi

Animus possidendi or the subjective element is the intent to appropriate to

oneself, the exclusive use of the thing possessed. It is an exclusive claim to a material

object. It is the intention of using the thing oneself and of excluding the interference

of other persons.

MENTAL ATTITUDE OF THE POSSESSOR

To constitute the animus possidendi, there must be an intention to possess, and

the nature of the intention is governed by the following rules:

 

 

a) The animus need not necessarily be in the nature of a claim of right.

b) It may be consciously wrongful. Even a thief has possession which is no less

real than that of a true owner.

c) The claim of the possessor must be one of exclusive possession, involving an

intent to exclude other persons from the use of the thing possessed.

d) The exclusion need not be absolute.

e) The animus possidendi need not be a claim on ones own behalf; one may

possess a thing either on his own account or on account of another.

f) The animus possidendi need not be specific; it may be general. X may intend

to possess all the books on his book-shelf, though he might have forgotten the

existence of some of the books on the shelf. This general intention to possess

all the books in the bookshelf is sufficient animus for X possessing every book

on the shelf.

2. Corpus

To constitute possession, the animus domini is not in itself sufficient; it must

be embodied in a corpus. Corpus is the effective realisation in fact of the claim of the

possessor. Effective realisation means that the fact must amount to the actual present

exclusion of all alien interference with the thing possessed, together with a reasonable

and sufficient security of the exclusive use of it in the future.

Corpus possessionis

The corpus of possession can be discussed:

(i) in relation of the possessor to other persons; and

(ii) in relation of the possessor to the thing possessed.

RELATION OF THE POSSESSOR TO OTHER PERSONS

So far as others are concerned, a person is in possession of a thing when he

can, be under a reasonable expectation that he will not be interfered with in the use of

the thing. He must have some sort of security. “A thing is possessed, when it stands

with respect to other persons in such a possession with the possessor, having a

reasonable confidence that his claim to it will be respected, is content to leave where

it is”. (Salmond) Such security may be derived from any of the following sources

 

 

1) The physical power of the possession.

2) The personal presence of the possessor.

3) By a person being able to hide a thing and keeping it in secrecy, so that he

avoids the interference of others.

4) A person may also enjoy such security by the fact that the members of the

society have developed a respect for rightful claims.

5) A person might enjoy security and protection by the possession of other

things. For example, if one possesses the key of a house, by virtue of that

possession, protection is afforded to the house and also to other things

contained in the house.

RELATION OF THE POSSESSOR TO THE THING POSSESSED

The second element for the purpose of possession is that the relation between

the possessor and the thing possessed is such as to admit of his making use of the

thing as he likes, consistent with the nature of the thing. There must be no barrier

between him and it, inconsistent with the nature of the claim he makes to it.

Thus, in one case, a parcel of bank-notes was dropped on the floor of A's shop,

where they were found by B, a customer. Can A claim the notes? Here, A had no

possession in law of those bank-notes. Possession requires the concurrence of two

elements, animus or the intention of the possessor with respect to the thing possessed,

and corpus or the external facts in which this intention is realised, embodied or

fulfilled. Neither of these is sufficient by itself. A mere intention to appropriate a thing

will not amount to the possession of that thing. Possession begins only with the union

of these two elements. In this case, A did not have the necessary animus, for he did

not know of the existence of the parcel at all, although he might have had the corpus,

it having been dropped in his shop. [See Bridges v. Hawkesworlh, 21 L.J.Q.B. 75.]

Legal consequences of possession

The following are the legal consequences which flow from the acquisition and

loss of possession:

1. Possession is prima facie evidence of title of ownership.

 

 

2. Long adverse possession confers title even to property which originally

belonged to another.

3. Transfer of possession is one of the chief modes of transferring ownership.

4. The first possession of a thing which as yet belongs to no one (res nullius) is a

good title of right.

5. Even in respect of property already owned, the wrongful possession of such

property is a good title for the wrong-doer, as against all the world except the

true owner.

6. Possession is of such efficacy that a possessor may, in some cases, confer a

good title on another, even though he has none himself. (Such cases constitute

the exceptions to the rule contained in the maxim, nemo dat quod non habet,

i.e., he who has not can give not.)

KINDS OF POSSESSION

Possession can be classified under the following four heads:

1. Corporeal and incorporeal

Corporeal possession is the possession of a material object. Incorporeal

possession is the possession of anything other than a material object. In the case of

corporeal possession, the actual use or corpus possessionis is not essential. In the case

of incorporeal possession, actual continuous use and enjoyment is essential, it being

the only possible mode of exercise.

According to Savigny, the essence of possession is to be found in the physical

power of exclusion. The corpus possessionis required at the commencement is the

present or actual physical power of using the thing oneself, and of excluding all other

persons from the use of it. Thus, according to Savigny, to acquire possession of a

horse, one must take him by the bridle or ride upon him or have him in one's

immediate presence, so that one can prevent all other persons from interfering; but no

such immediate physical relation is necessary to retain the possession so acquired.

Salmone criticises the above view on the following two grounds:

 

 

a) Firstly, he says that, even at the commencement, a possessor need have no

physical power of excluding other persons. The true test, according to

Salmond, is not the physical power of preventing interference, but the

improbability of any interference, from whatever source this improbability

arises.

b) Secondly, the theory of Savigny is inapplicable to the possession of

incorporeal things. Here, there is neither exclusion, nor even the power of

exclusion.

The distinction between corporeal and incorporeal possession has often been

criticised on the ground that it is really doubtful whether there can ever be such a

thing as possession of incorporeal objects. How can one have an actual or physical

hold over a thing in the case of incorporeal objects? It is, therefore, said that an

incorporeal right cannot be possessed, though it can be owned, and that what goes by

the name of incorporeal possession is actually quasi-possession.

2. Mediate and immediate

Again, possession, may be mediate or immediate. By immediate possession, is

meant the direct or the primary possession by a person over a particular object which

he acquires or gets directly or personally. It implies necessarily a direct and actual

hold over the corpus of the thing. It also implies that there is no other intermediary to

hold the thing. The mere fact that X has a car and that he keeps it in his possession is

sufficient to constitute his immediate possession in this sense. But whenever some

property or thing is found in the possession of one person on behalf of another, such

possession is called immediate possession, as for instance, the possession of a bailee

or a custodian, and the person on whose behalf the thing is possessed is called a

mediate possessor. So, if X leaves his car with the driver, the driver’s possession will

be immediate possession, whereas that of X would be mediate.

Kinds of mediate possession

Mediate possession is of three kinds

 

 

a) The first is that which one acquires through an agent or servant, that is to say,

through some one who holds solely on one's account, and claims no interest of

his own.

b) The second kind of mediate possession is that in which the direct I possession

is with a person who hold the thing possessed, both on c his own account, and

also on someone else's account, but who also recognises the owner's superior

right to obtain from him the direct possession whenever the latter chooses to

demand it. This is the case of a borrower, hirer or tenant-at-will.

c) The third form of mediate possession is the case in which the S immediate

possession is with a person who claims it for him until some time has elapsed

or some condition has been fulfilled. Securities are instances of this type of

mediate possession.

3. Concurrent

As a general proposition of civil law, it is true to say that two persons cannot

be in possession of the same thing at the same time, for two adverse claims of

exclusive use cannot both be effectually realised at the same time. But claims which

are not adverse, and which are not, therefore, naturally destructive, admit of

concurrent or duplicate realisation. Hence, there are several cases of duplicate

possession:

1. Mediate and immediate possession co-exist, for there are two persons who

possess the same article, one of them being in the immediate possession and

the other mediate, i.e., not a present or immediate physical hold over the thing,

for instance, a servant or an agent may possess a thing on behalf of the master.

2. Two or more persons may possess the same thing in common, just as they may

own it in common.

3. Corporeal and incorporeal possession may co-exist in respect of the same

material object, just as corporeal and incorporeal ownership may. Thus, A may

possess a piece of land, while B may have a right to pass over that same land.

A's claim of exclusive use is not absolute, but general.

4. Possession in fact and in law

 

 

Possession may be factual (de facto) or legal (de jure). If X owns a house, he

has de jure possession, because he has a legal right to possess the house. Further, if he

lets it out to Y, his possession is also de jure, as the latter is also legally entitled to use

the house. However, if a trespasser goes and occupies X’s house, his possession will

not be legal possession. although it will be factual (de facto) possession.

Possession in fact, possession naturalis, and possession in law, possession

civilic, are not always identical. There are three possible cases in this respect:

a) Possession may, and usually does, exist, both in fact and in law. Thus,

when a man has a watch on his wrist, his possession of the watch is both in

fact and in law.

b) Possession may exist in fact, but not in law. Thus, when a man goes to a

shop to buy a watch, shilst he is examining a watch in his hand, or trying it

out on his wrist he has possession thereof in fact, - but not in law.

Likewise, a diner at a restaurant has possession in fact of the plates, cups,

cutlery etc. (whilst he is dining); however, he does not have possession

thereof in law. However, a servant’s possession of his master’s property is,

for some purposes, not recognized as such by the law, and he is then said

to have detention or custody, rather than possession.

c) Possession may exist in law, and not in fact. This is what English jurists,

including Salmond, call constructive possession. Thus, X may keep his

jewellery in a locked box and leave the box with Y, retaining its key with

himself. In such a case, X is said to have constructive possession of the

jewellery.

Possession in fact

A legal system may not make any distinction between possession in law and

possession in fact. In such a case, possession would mean actual control over a thing.

But such identification is not always practicable. The concept of possession in law is

more refined than the concept of possession in fact.

Possession in fact would mean actual control. Actual control is the relationship

between a person and a thing. As seen above, actual control would be the result of:

a) The relation of the possessor to other person;

 

 

b) The relation of the possessor to the thing possessed.

Possession in law

Notwithstanding the logical and clear analysis of Salmond, the Editor of

Salmond’s Jurisprudence is of the view that a terse definition of possession to apply to

all instances of legal possession in impossible. According to him, the basic concept is

that of factual possession, (i.e. possession in fact) but this core of the definition is

refined by extensions or restrictions in order to include the right to possession in law.

Naturally, the definition of possession has to be in relation to the purpose for

which it is defined. The definition of possession may be relevant in the law of larceny

(theft), law of bailment, law of possessory remedies etc. Therefore, a consistent

theory of possession is not possible. One can only conclude that possession in fact

may be absolute, but possession in law is relative.

5. Adverse possession

Adverse possession is where one person in possession claims exclusive right

to the land of another who is not in possession. Thus, if X is openly in possession of

Y's land for an unbroken period of twelve years or more, he can claim a title to the

land by adverse possession. Y's legal right of ownership to the land is destroyed by X’s

adverse possession.

The above is also an illustration of the maxim “Possession is nine points of

law”. Here, X’s adverse possession for twelve years gave him ownership, being a

recognised evidence of X’s right over the property.

MODES OF ACQUIRING POSSESSION

There are two modes of acquiring possession, namely, taking and delivery.

1. Taking

Taking is the acquisition of possession without the consent of the previous

possessor. Such taking may be either rightful or wrongful.

2. Delivery

Delivery is the acquisition of possession with the consent and co-operation of

the previous possessor. It may be actual or constructive.

 

 

(a) Actual delivery is the transfer of immediate possession. It is of two kinds,

according as the mediate possession is or is not retained by the transferor.

(b) Constructive delivery is that which is not actual. It is of three kinds. The first

consists in the surrender of the mediate possession of a thing to him who is already in

immediate possession of it. Thus, a friend, who has borrowed a book from A has only

the immediate possession of such book, the mediate possession being with A. If later

on, A wants to present that book to him, A need not first take back the book from him

and then give him full possession by actual delivery. A can effectually transfer the

property in the book by merely surrendering to him by A’s mediate possession, i.e., by

asking him, while it is still retained by him, to keep it for himself. This is known as

traditio brevi manu.

The second consists of the transfer of mediate possession, while the immediate

possession remains in the transferor.

The third is known as attornment. This is the transfer of mediate possession, while the

immediate possession remains outstanding in some third person.

‘Possession’ and ‘Ownership’ distinguished

“Possession”, says Ihering, “is the objective realisation of ownership”. It is in

fact what ownership is in right. Possession, whether of a thing, an interest, or a right,

is the de facto exercise of a claim, whereas ownership is the de jure recognition of

such a claim. Ownership is the guarantee of the law, possession is the guarantee of

the fact. Possession, therefore, is the de facto counterpart of ownership. It is the

external form in which rightful claims normally manifest themselves.

By ownership in law, is meant the right of an individual or a body corporate or

incorporate to possess a thing to the exclusive use of it, to alienate it, and even to

destroy it, in such a manner that he does not disturb the rights of other people.

Ownership, in the strict sense of the term, may be defined as a right to the enjoyment

of the uses of the subject-matter, with a right to deal with the same in the manner

stated above.

It is not necessary that the owner of the corpus should enjoy all the rights or

uses at the same time. If A is the owner of a motor-car, he can either use it or he can

lock it up in the garage, or he may use it every day or sparingly or he may exclude

strangers or outsiders from using it; he can gift it away to anyone, or even lawfully

 

 

destroy it, if he so desires. In short, he has exclusive dominion over his motor-car.

Such a right is against the whole world, and nobody can disturb him in the peaceful

enjoyment of the thing owned by him.

Similarly, in case of incorporeal rights, such as a copy-right, trade-mark or

patent, one is fully entitled to the use of all these incorporeal rights to the exclusion of

all others. One's right to the ownership or anything that one possesses means the duty

of all others to abstain from either trespassing or committing waste or mischief, in

such a manner as to disturb him in the enjoyment of his right of ownership.

Ownership, in its wider sense, has been defined by Austin as a right “indefinite

in point of user, unrestricted in point of disposition and unlimited in point of

duration”. According to him, the right of alienation of property is a necessary

incident to the right of ownership, but it must be noted that today, there are many

restrictions with regard to the alienation of property.

According to Pollock, “Ownership may be described as the entirety of the powers of

use and disposal allowed by law…The owner of a thing is not necessarily the person

who, at any given time, has the whole power or use and disposal; very often, there is

no such person. We must look for the person having the residue of all such power,

when we have accounted for every detached and limited portion of it; and he will be

the owner, even if the immediate power or control and user is elsewhere”. In its

widest sense, Salmond describes ownership as “the relation between a person and any

right that is vested in him”.

Possession is the ,external relation of ownership, and to a very great extent, is

a valuable piece of evidence to show the existence of ownership. Possession may be

described as the right of ownership, that is, as something factual, Possession,

therefore, is the de facto manifestation or enjoyment of the right of ownership.

Ownership is the de jure right, of which possession is the de facto manifestation.

According to Salmond, "A thing is owned by me when my claim to it is maintained

by the will of the State as expressed in the law; it is possessed by me, when my claim

to it is maintained by my own self-assertive will. Ownership is the guarantee of the

law; possession is the guarantee of the facts ..... Possession is the de facto counterpart

of ownership”.

 

 

POSSESSION POSSESSORY REMEDIES

Possessory remedies are those legal remedies which exist for the protection of

possession even against ownership, whereas proprietary remedies are those which are

available for the protection of ownership itself.

In many legal systems, possession is a provisional or temporary title, even

against the true owner himself. A wrongful possessor, who is deprived of his

possession, can recover it from any person whatever, simply on the ground of his

possession. Even the true owner, who retakes his own, must first restore possession to

the wrong-doer, and then proceed in due course of law on the ground of ownership.

As stated earlier, adverse possession for 12 years or more results in ownership in the

eyes of law. It is therefore, sometimes, said that possession is nine points of the law.

Why Possessory Remedies are recognised

The concept of possession is of far-reaching importance in view of the ' fact

that legal consequences flowing from the acquisition or loss of possession are quite

grave. Possession often amounts to evidence of ownership. Thus, a finder of goods

becomes the owner thereof as against the whole world, except the true owner, by

virtue of the fact of possession. Likewise, by adverse possession for twelve years or

more, a person Ii becomes the legal owner of the property possessed, and the right of

the 5 original owner is extinguished by perfect negative prescription.

Savigny points out that the protection of possession is of considerable

advantage for protecting citizens and their property, and for the maintenance of public

peace. The protection of possession is absolutely necessary to prevent forcible

interruption and trespasses on the right of property and possession thereof.

As observed by the Court of Exchequer in Rogers v. Spence (13 M & W 581),

“These rights of action are given in respect of the immediate and prevent violation of

the rights of property. They are an extension of the protection which the law throws

around the person”.

The following, are the three main reasons for providing possessory remedies :

1) The evils of violent self-help are deemed so serious that it must be discouraged

by taking away all advantages which anyone derives the from it. He who helps

 

 

himself by force must restore it, even to a thief. The law gives him a remedy,

and with it he must be content.

2) The second reason providing possessory remedies is to be found in the serious

imperfection of early proprietary remedies. In older legal systems, it was

extremely cumbersome to prove one’s ownership to recover the property on

the ground of the title. Quite often, small technicalities would defeat one’s title

to property.

3) The third reason for providing possessory remedies is that it is always more

difficult to prove ownership than to prove possession. Therefore, it is

considered unjust that a man should be allowed by violence to transfer the

heavy burden of proof from his own shoulder to that of his opponent.

Everyone should bear his own burden. He who takes a thing by force must

restore it to him from whom he has taken it; let him then prove, if he can, that

he is the owner.

POSSESSORY REMEDIES AND ENGLISH LAW

(The Doctrine of jus tertii)

Under English law, no possessory remedies are granted; yet it has been

possible for English law to attain the same aim as that of the possessory remedies by

providing the following three rules:

1) Prior possession is prima facie proof of title. He who is in posses-sion first in

time has a better title than the one who has no possession.

2) A defendant is always at liberty to rebut this presumption that the better title is

in himself.

3) A defendant who has violated the possession of the plaintiff is not allowed to

set up the defence of jus tertii. Under the defence of jus tertii, one pleads that

though neither the plaintiff nor he has the title, some third person is the true

owner and the plaintiff is not. This defence will not be a valid defence under

English law, as prior possession is always a prima facie proof of title. Thus, if

A is in possession of a car which is stolen by B, it is not open to B to tell the

Court that although he himself (B) is not the rightful owner of the car, nor is A.

because the car actually belongs to a third person, C.

 

 

Though the title of a third person is not a good defence, under exceptional

circumstances, English law does consider jus tertii, as a good defence. These

circumstances are the following:

a) When the defendant defends the action on behalf of and by the authority of

true owner;

b) When he committed the act complained of by the authority of the true owner;

and

c) When he has already made satisfaction to the true owner by returning the

property to him.

ADVERSE POSSESSION

Adverse possession means the possession of a person whereby he claims an

exclusive right to the land of another person. Thus, if X has openly enjoyed an

unbroken possession of Y's land for a continuous period of twelve years or more, X

gets a good title to Y’s land. In such a case, the true owner's title is extinguished by the

possessor, who has exercised adverse possession for the required period of time.

Title by adverse possession is an instance of a title by perfect negative

prescription. Just as positive prescription creates a right, negative prescrip-tion

destroys a legal right. In other words, a legal right is completely destroyed by negative

prescription.

CASES

The following English cases on possession will serve to clarify and exemplify

the concepts discussed above.

Cartwright v. Green (Desk repair case, (1802), 8 Ves. 405). - In this case, a

desk was given for repairs to a carpenter. The carpenter discovered some money in a

secret drawer, which he kept for himself. It was held that he was guilty of larceny. It

follows that the carpenter did not obtain possession of the money when he obtained

possession of the desk, but only at the time he discovered it and formed the intention

to convert the money.

R. v. Husdon (Mistaken cheque case, (1943) K.B. 458. - By a mistake of a

Government Department, X was posted a letter containing a cheque intended for Y. X

 

 

appropriated the cheque to his own use, and the Court held that he was guilty of

larceny. Although X came into possession of the letter innocently, the Court observed

that he did not acquire possession of the cheque until he became aware of its

existence.

Hibbert v. McKlernarn (Golf Ball Case, (1948) 2 K.B. 142. - Here, a person

took golf balls abandoned by the original owners while he was trespassing on the

ground of the Golf Club. It was held that he should be convicted, because when he

took the golf balls, they were in the possession of the Club, and it was immaterial that

noboy knew where they were lying, or how many balls were lying abandoned in the

Club premises.

Bridges v. Hawkesworth (Case of lost notes, (1851), 21 L.J.Q.B. 73).-In this

case, X found a parcel of notes on the floor of Y’s shop. It was held that X had a better

title to them as against Y, as he was the first to acquire possession. Y had not

previously acquired possession, because he did not know of the existence of the notes

till X found them.

South Staffordshire Water Company v. Sharman (Gold rings case, (1896) 2 Q.

B. 44). - Sharman was given the job of cleaning out a pool belonging to a water

company and he found some gold rings in the mud at the bottom of the pool. It was

held that the water company was first in possession of the rings, and that therefore,

Sharman had not acquired any possessory title to the rings.

Armory v. Oalamirie (Chimney Cleaner's case, (1722) I Strage 505). -In this

case, the plaintiff, a chimney cleaner, found a jewel while cleaning a chimney, and he

took it to a goldsmith in order to ascertain its value. The goldsmith refused to return it

to him, and it was held that plaintiff had a better title to the jewel as against the

goldsmith.

Reg. v. Riley (Lamb case, (1853) Dears, 149). - Here, a person drove off with a

lamb not belonging to him, along with his own lamb without knowing that he was

doing so. After he discovered his mistake, he sold off the lamb with his own. The

Court held that he was guilty of larceny.

 

 

THE FUNCTION AND PURPOSE OF LAW:

JUSTICE, STABILITY AND PEACEFUL CHANGE

Most Jurists agree that law is an instrument of society to establish justice. But

there is not much agreement in defining justice. Generally, the term justice has two

meanings. In the wider sense, justice is synonymous with morality; but in the

narrower sense, it refers to one aspect of morality. In this sense, justice would mean

that the like must be treated alike. In other words, it means fair and equal treatment of

all.

Justice, in the sense of equality, has two aspects:

(a) Distributive justice, and

(b) Corrective justice.

Distributive justice works to ensure a fair division of social benefits and

burdens. The task of establishing distributive justice is primarily achieved through

Constitution-making and by legislation. The function of the Courts is chiefly to apply

these rules for the purpose or establishing corrective justice.

Distributive justice works to ensure a fair division of social benefits and

burdens amongst the members of a community, as for instance, that every person has

a right to the property legally acquired by him. Distributive justice thus serves to

secure a balance or equilibrium amongst the members of a society. This balance can,

however, be upset, as when

A wrongfully seizes B’s property. At this point, corrective justice will move

in to correct the disequilibrium when the court compels A to make restitution to B.

So far as distributive justice is concerned, there is one difficult problem. It is

true that distributive justice aims at arriving at a balance in the society, by providing

for equitable division of benefits and burdens and further by equal dispension of

justice. But while achieving that balance, another factor is to be taken into

consideration. In a society, there is conflict, not only between person and person, but

also between interest and interest. For example, the right to employment and the right

to property may conflict with each other. Then, society has to achieve a balance by

reconciling such conflict of interest.

Roscoe Pound calls this social engineering. Here, the function of law is to

satisfy, to the maximum extent, the desires, interests and claims of the various

 

 

members of the community, and thus achieve a smooth running of the machinery of

the society. According to this theory of social engineering, there are several interests

which are of a great advantage to a person, e.g., bodily security, freedom of speech

etc. Not all such interests are, however, protected - or sometimes even recognised - by

law. Thus, the right to privacy is not fully recognised by English law, even today.

Now, which interests should be recognised by law is a question which is answered

partly by sociology, partly by ethics, - and partly by law. Thus, the reconciliation of

competing and conflicting interests is the ultimate aim of social engineering.

When one speaks of equality and justice, one has to be very clear in one's

mind on one question. Equality has been defined as the like treatment of the like. Bat

the basis of grouping the people is the crux of the problem. Equality and justice can

be achieved only when people are grouped together for this purpose on a rational and

reasonable basis. This has been termed as reasonable classification for the purpose of

Article 14 of the Constitution of India (Right of Equality).

However, It cannot be said that Justice is the only possible or even desirable

goal of law. Indeed, the very idea of law represents a basic conflict between two

different needs - the need for uniformity and the need for flexibility. Uniformity is

necessary to ensure that there is certainty and predictability. If the rules of law are

fixed and generalised, the citizen can plan his activities with an ample measure of

certainty. Another advan-tage of uniformity is that the judge applies fixed rules, and

not his whim of the moment. Yet another advantage is the stability and security which

the social order derives from uniform and unchanging rules of law.

And yet, there is also a need for a certain degree of flexibility. The existing

rules may not provide for a border-line case, and indeed, no rule can make provisions

for every possible case. Some measure of discretion thus becomes valuable. Again,

flexibility is necessary to enable the law to adapt itself to social change. If the law, as

it exists, is unalterable, the necessary changes would have to come by revolution,

violence and upheavals. On the other hand, law that is capable of adoption, whether

by legislation or judicial development, allows for peaceful changes from time to time.

In conclusion, it can be said that the function of law is to achieve justice,

stability and peaceful change in a society.

 

 

Judicial Process and Reasoning

Normally, it is considered that the judicial process is one of deductive

reasoning. There is a principle of law that certain facts lead to certain legal

consequences. Then there is the ascertainment of the fact. Thirdly, the legal rule is

applied to the facts. Thus, it might appear that the judicial process is a mechanical

process. But it is not really so. It is possible that there may be some ambiguity in the

legal rule itself or the pattern of the facts may be slightly different. In such cases,

some kind of innovation’ or improvisation is necessary. In those circumstances, a

judge may have to take recourse to deduction or analogy, and it is also possible that

the judge is confronted with a new situation altogether. In such circumstances, the

judge can never take a formalistic approach. He has to improvise the law to meet the

needs of the changing society. In such circumstances, it is not the law that

determines,’ but it is what the judge considers as justice that tempers the law. Thus,

judicial process and reasoning is a complicated phenomenon.

 

 

DEFINITION OF LAW

DEFINITION OF LAW

Definition-Difficulties

Imperative Concept of Law

Austin’s Definition of Law

Law and Morality

Law and International Law

Criticism of Austin's ‘Law’

Holland’s Definition of Law

Definition Analysed

Gray's Definition of Law: Criticism

Salmond's Definition of Law

Salmond-If Austinian

Elements of Salmond’s Law

Criticism of Salmond's Definition of Law

H.L.A. Hard – Definition of Law

Austin’s Inadequacies

Hart-Law Defined

(a) Primary and Secondary Rules

(b) Rule of Recognition

(c) Open Texture of Law

(d) Law and Morality

Lon L. Fuller-Definition of Law

Definition of Law in terms of Social Ends or Interests

Criticism

Definition of Law in Terms of Abstract Ideals

Criticism

Definition of Law and Historical Aspect

 

 

Criticism

Conclusion:

Definition-Difficulties

The problem of the definition of law is as old as Greek and Roman philosophy

itself. There have been conflicting and divergent views of the jurists regarding the

nature, concept, basis and functions of law. Dean Pound himself has given no less

than twelve concepts of law. Law has been regarded as a divinely ordained rule or a

tradition of the old customs or recorded wisdom of the wisemen or a philosophically

discovered system of principles which expresses the nature of things or as a body of

ascertainments and declaration of an eternal and immutable moral code, or as a body

of agreements of men in politically organized society, or as reflection of divine reason

or as a body of commands of the sovereign, or as a body of rules discovered by

human experience, or as a body of rules developed through juristic writings and

judicial decision or as body of rules imposed on men in society by a dominant class,

or as body of rules in terms of economic and social goals of the individuals.

Law can also be defined from the point of view of philosophers, theologians,

historians and social scientists. As there are different approaches of the various

schools, to the study of jurisprudence so there is no general definition of law which

includes all the aspects of law. In fact every jurists definition of law is tainted by the

approach of particular school to which the propounder of the definition belongs.

Indeed no definition of law can suit all times, all places and all societies. Again law

can be defined firstly, by its basis in nature, reason, religion or ethics: secondly by its

source-in custom, precedent or legislation, thirdly, by its effects-on the life of society,

fourthly, by the method-of its formal expression or authoritative application; fifthly by

the ends that it seeks to achieve. Therefore, it is not desirable to adhere rigidly to

anyone definition for the law is a social institution which like society changes

according to changing needs of society. Law as a body of rules for social control has

also to be distinguished2 from the rules of ethics or positive morality. Ethics differs

from law in as much as the former is a study of the supreme good. Ethics attempts to

 

 

lay down rules for supreme human conduct considered necessary at a particular time

and place. Ethics further stresses upon individual excellence whereas law concentrates

on social or general good of the community. Ethics tries to emphasize upon inner

motive or inner conduct of the individual, law on the other hand concerns with overt

acts or external conduct. However, this difference between ethics and law cannot be

stretched beyond a particular point. Law in fact cannot be devoid of ethics. Indeed.

ethical values of a society directly influence the nature of law. Of course the object of

ethics is to make individual perfectly good in every sense of the term whereas law

attempts to make individuals socially useful. Therefore, law derives inspiration from

ethics for shaping human values. Law itself, as such, has been described as having

minimum ethics. So all the rules of ethics are not the rules of law or vice versa. Yet

law and ethics; cannot be separated· or isolated in the absolute sense of the term. Law

is always dependent upon ethics for its continuance and justification.

Law also may be distinguished from positive morality. Positive morality, like

law, emphasizes upon actual human conduct rather than ideal abstract notions.

However, there are some differences between the two concepts. A rule of law is

enacted, enforced and imposed by the State, a rule of positive morality is not imposed

by the State. Secondly, there is no sanction behind the rules of morality as is behind

the rules of law. They also differ in their content. The rules of law contain matters

which are deemed absolutely desirable or necessary for the good of the community.

The rule of morality contains all the things which ought to be for the good of the

individual or society. However, law and morality are interdependent ·upon each other.

Generally speaking it is true morality perfects law but sometimes it is law which

creates social morality. For instance in India through social legislation concerning

untouchables, backward classes and women a new social morality has evolved in due

course of time which has favorably changed the attitude of the dominant groups

towards the weaker sections of the Indian society.

In other words, law is inextricably mixed with ethics, morality and other

socio-economic phenomenon of the society. Law of course cannot be defined in strait-

jacket fashion nor can it be defined in absolute terms. However, scientific and

workable definition is necessary for logical understanding of law. It cannot be studied

 

 

as a brooding omniscience in the void. It has to take into consideration the social

values and other practical norms for regulating human behaviour in terms of human

needs and other social requirements. In fact before John Austin the concept of law

was not clear, certain and definite. It was mingled with other disciplines like

metaphysics, natural sciences, philosophy and theology. So its exact definition,

meaning and scope was vague and unascertainable. The credit of defining law

systematically for the first time goes to John Austin (1790-1859) who in his ‘Province

of Jurisprudence Determined’ took pains to distinguish positive law from positive

morality and other laws.

Imperative Concept of Law

Austin’s Definition of Law

The work of the English Jurist John Austin (1790-1859) who expounded the

concept of Analytical Positivism making law as a command of the sovereign is as

epoch-making for English legal theory as Newton’s theory of law of gravitation to

physical scientists. Austin developed logically a structure of legal system in which he

gave no place to values, morality, idealism and justice. He vigorously, rigidly and

scientifically created a legal system-a science of jurisprudence centered around

sovereign, command, duty and sanction.

a. Law and Society-Austin:

Austin’s main concern was to give a logically coherent definition of law as

distinguished from divine law and positive morality. Therefore, he sought the basis of

his ‘law’ with reference to a society which could be said to be political and

independent as distinguished from all other societies-traditional, feudal or any other

form of primitive groupings of a people. In other words, Austin is mainly interested in

maturer, ampler or developed societies-a society consisting of a body of men who

habitually obey some determinate person or number of persons who themselves are

not in the habit of obedience to any other human authority. The Austinian system of

law, therefore, presupposes the existence of such a society.

Austin accordingly defines ‘law’ as a rule laid down for the guidance of an

intelligent being by an intelligent being having power over him. He divides Law

 

 

under two classes. First, ‘law properly so called’ and the second, ‘law improperly so-

called’. The ‘law properly so-called’ are described as commands of the sovereign and

all the rules emanating from the political superior are species of commands. However,

there are laws which resemble like laws are styled by Austin as ‘laws improperly so-

called’ or laws by analogy or metaphor or positive morality for such laws are not

commands of the sovereign. They are not set by men as political superiors for human

conduct and are merely opinions or sentiments held or felt by men in regard to

regulation of human conduct. So such laws can be conveniently termed as positive

morality or positive moral rules, e.g., the rules of the club, fashion, public opinion,

international law, the rules of utility and religion, etc. The science of jurisprudence as

such is concerned with ‘law properly or strictly so-called’ without regard to their

goodness or badness.

b. Laws properly so-called-Distinguished:

As stated above, Austin as an analyst wanted to exclude from the scope of law

other various forms of so-called laws described by Austin as ‘laws improperly so-

called’ in order to determine the exact nature of law to be binding upon the people

irrespective of any consideration or value judgment. He, therefore, disengaged and

divorced all other so-called laws in order to build a logically self justifying and self-

sufficient system unmingled and unaffected by other disciplines or philosophy. As

such he divides law in three parts: first, law of God, i.e., law made by God to his

creatures; second, law made by man to man and third, laws of physical nature or

scientific laws, e.g., laws of gravitation, relativity, biological laws of human body etc.

As regards the law of God is concerned, Austin says what should be the relationship

between God and his creatures is not the concern of law or jurisprudence. This is

something other-worldly. So he rejects the metaphysical concept of law from the

purview of his jurisprudence. As regards the third type of laws is concerned, Austin

says such laws are improperly so-called for they do not immediately and directly

concern with. human conduct. The term law is extended to them by caprice or fancy.

According to Austin the rules of animal breathing or rules of blood circulation or

natural species cannot be equated with rules for human conduct in a society. So he

 

 

describes such scientific laws as laws improperly so-called or laws by analogy or

metaphor.

The second type of laws, as stated above, were divided by Austin in two

categories: (a) laws made by men in their sovereign political capacity to men who are

subjects or political inferiors and (b) laws made by men in their private individual

capacity to men as private persons. The former type of laws are termed by Austin as

positive laws or laws strictly so-called and the latter type of laws are described by him

as positive morality. The positive law or laws strictly so-called are obligatory and

legally binding upon the subjects for they are in the nature of commands backed by

sanction. The laws of positive morality are not legally binding upon the individuals

and are unaccompanied by sanction of the sovereign. Such laws depend for their

enforcement upon overwhelming majority sentiments or public opinion only. As such

rules of positive morality too are excluded from Austin's definition of law.

Law and Morality

Austin further a tempted to separate law from morality. He was of the view

that law is law because it is made by the sovereign and it has nothing to do with its

historical origin, ethical significance or moral validity. He excluded the notion of

goodness and badness from the purview of his law. For him law is neither concerned

with abstract natural ideal nor with social reform, social welfare and social progress

which is the concern of the science of legislation but not of law of the sovereign.

Buckland has correctly subsumed5 the Austinian concept of law as ‘law is law since it

is made by the Sovereign, the Sovereign is Sovereign because he makes the law’.

Law and International Law

Austinian concept of law is at once irreconcilable with international law. For

Austin international law is positive morality because it does not emanate from the

determinate sovereign and so is not binding on the people. Conversely the sovereign

itself is not bound by any law, it recognizes no authority whether internal or external

superior to itself. As international law cannot be defined as command over and above

the sovereign, international law at best is a positive morality-depending on the choice

of the sovereign to abide or not to abide by such law. It lacks also sanction. So

 

 

international law is not law properly so-called and, therefore, excluded by Austin

from the scope of jurisprudence.

Criticism of Austin's ‘Law’

1. Austin ignores completely the moral and ethical aspects of law. Morality

cannot be excluded from law since both of them have a close community

with the life of the people.

2. Law cannot be defined in terms of State. Historically law is older than

State. Del Vecchio suggests that those who define law in terms of the State

should be forced to study history before writing jurisprudence.

3. Kelsen also rejects the definition of law in terms of State. A primitive tribe

may have a legal order long before it has developed a State.

4. Austin was mainly concerned with the nature of law in which it is created

or enforced. However, the essence of law is its function rather than its

form. Law should be defined by the part it plays in the life of the society,

not by the historical accident that it is sometimes laid down by a sovereign.

We cannot say that there can be no law where there is no sovereign.

5. According to Sir Henry Maine in primitive communities like those of the

Homeric Age or Manu Age or of Iceland there was no sovereign to be

found nor any legislative command nor any definite sanction. Yet there

were laws in the form of themistes, judge-made law, customs, codes etc.,

which governed the life of the people. A strong Muslim ruler like

Allauddin and Ranjit Singh of Punjab were absolute or despotic yet they

could not ignore the customs or religious practices of the people.

6. Austin stressed too much upon sanction, i.e., a fear of evil or punishment.

However, laws are obeyed not merely because of sanction but by the

promise of reward. Psychologically it is not correct to say that sanction

alone makes people to obey law. Universal disobedience will rapidly

destroy the whole basis of the legal order. Law is obeyed because of its

acceptance by the community, and while the sanction plays its part in

dealing with a recalcitrant minority the reasons for that acceptance lay

deeper. Habit, respect for the law as such and a desire to reap rewards are

the factors equally important. Academic preoccupation with the sanction

 

 

leads to a false view of law. The idea of health does not at once suggest to

our minds hospitals, diseases, operations, etc. The best use or service of

medicine is the prevention of diseases, just as the real benefit of law is that

it secures an ordered balance which goes for to prevent disputes.

7. His definition is not applicable to conventions of the Constitution,

although conventions cannot be enforced in a court of law yet they are the

foundation of legal order. There is no sanction behind them yet they are

observed because it is recognized that if they are flouted the legal order

will break down.

8. His definition of law cannot apply to constitutional law which cannot be

called the command of the sovereign. As a matter of fact it is the

constitutional law of a country which defines the powers of the various

organs of the State.

9. The personal laws of the Hindus and Muslims are the creation of traditions

and usages and are not in the nature of command yet they have the force of

law and are recognized and accepted by the society.

10. Austin took no account of law as what it ought to be. He relied excessively

on logic by saying that law is law because it is made by the sovereign and

sovereign is sovereign because he makes the law.

11. Austin does not consider international law as law because it is not backed

by some authority. He calls it as positive international morality. However,

international law is law because ultimate sanction behind ordinary law is

public opinion, so the sanction behind international law is world public

opinion. Of course there is sanction of collective enforcement action to

compel a recalcitrant State to abide by the norms of international law but

as a last resort as provided in the Charter of the United Nations. ‘Law is

enforced’ says Pollock ‘On account of its validity. It does not because

valid merely become it is enforced by the State’.

12. Austin unduly emphasized the imperative character of law. According to

Prof. P. G. Osborn enabling statutes, laws conferring franchise and rules of

judicial construction, procedure and customary practices cannot be said to

be commands.

 

 

Holland’s Definition of Law

The next important jurist who followed John Austin’s concept and nature of

law is Thomas Erskine Holland. He wrote ‘Elements of Jurisprudence’ in 1880 in

which he attempted to define law more scientifically and analytically than Austin

himself. According to him ‘Law is a general rule of external human action enforced

by a political sovereign’. Holland also measures or defines law with preference to

sovereign devoid of moral, ethical or ideal elements which are foreign to law and

jurisprudence.

Definition Analysed

1. General rule of external human action:

According to Holland law of the sovereign deals with the external human

conduct. It is not at all concerned with inner motives or feelings like fear which were

overemphasized by Austin. Such laws are not only declared but also enforced by a

determinate sovereign and the transgressor of law is exposed to ridicule, hatred or

coercion. As such law differs from the laws of fashion or honour for the latter depend

for their observance not upon the authority of the sovereign but indeterminate and

varying sentiments or feeling of a community.

Further, law has to be essentially general in character. It cannot be particular

or applicable to one individual. Law has to be general, universal and not like Austin's

commands which may be both general and particular.

2. Sovereign-Political authority:

Law must come from a determinate political authority which is either a

superhuman or a body of persons. However, by the terms ‘sovereign political

authority’ Holland meant the State as a political institution both sovereign and

independent of any other State or institution. Rules set by such authority are called

laws properly so-called.

Austin had only emphasized on the promulgatory aspect of law. Holland takes

first step in pointing out the enforcement aspect of law and thus widens the concept of

 

 

Austin's definition of law. However, Holland's approach to law is in keeping with

Austinian concept of law and so the Same criticism which is levelled against Austin

can be levelled against Holland also.

3. Definition of Law-Gray:

Another important follower of Austin is John Chipman Gray of the United

States of America. He says ‘Law of the State or of any organized body of men is

composed of the rules which the courts, that is, the judicial organs of that body, lay

down for the determination of legal rights and duties’. In other words, law is what the

courts lay down in determining legal rights and duties of the citizens. Gray is not an

Austinian. He is more or less a functionalist defining law in terms of judicial process.

However, one can find Austin’s sovereign in the Supreme Court of United States of

America which alone could declare the acts or statutes of the Congress as

constitutional or unconstitutional. In fact the Supreme Court of America emerged one

of the supreme powers on the American political scene-especially during 1930s. It

declared the National Industrial (Recovery) Act, 1933 ultra vires of the Constitution

and violative of due process clause of the Constitution. Thus statute law was not law

until it had been interpreted by the courts-thereby pointing out that law is law because

it is laid down by the Supreme Court. In other words, law is what half a dozen old

gentlemen judges say, for these half a dozen old gentlemen form the highest judicial

tribunal of the country-a simple variation of Austin’s concept of law.

Gray's Definition of Law: Criticism

1. Gray like Austin- is concerned with the nature of law rather than its purposes

and ends.

2. He ignores the idea of justice or ethics. He merely says courts are concerned

solely with determination of strict legal rights and duties irrespective of social

expectations of economic justice or welfare or protector and defender of

human rights.

3. His definition is too revolutionary as it does not take into account statute law

and more especially the newly enacted law which no court has yet interpreted.

4. His definition does not include administrative tribunal or administrative law.

 

 

5. He excludes international law also from his definition of law.

6. The task of the court is very much limited in determination of legal rights or

legal relations. Is it not the function of the courts to translate the demands,

interests, claims, etc. of the community into a reality through judicial

processes or value judgements? The courts have to look around in interpreting

law.

Salmond's Definition of Law

Another important jurist of the Imperative School of Jurisprudence is Sir John

Salmond from New Zealand. He like Gray defines law in terms of judicial process. He

has also substituted for the political sovereign the courts of law as real source of law.

He says in England much of the law is made by the courts besides the legislature. But

all law, however, made is recognized and administered by the courts, and no rules are

recognized and administered by the courts which are not rules of law. To understand

the nature of law one should go to courts and not to the legislature. So Salmond

observes ‘The law may be defined as the body of principles recognized and applied by

the State in the administration of justice. In other words, the law consists of the rules

recognized and acted on by the courts of justice’.

Salmond-If Austinian

Before we consider Salmond's definition of law it would be appropriate to

discuss how far he is Austinian. Salmond is Austinian in the sense that he correlates

law with the State as the source of law although he avoids the controversy as to legal

and political sovereignty. He only emphasizes the authority of the State-especially the

courts who act upon the rules of law. It is in the judge that we find Austin’s sovereign.

However, to some extent he departs from Austin. He does not say law is a command

of the sovereign nor he rejects the notion or purpose of law-the administration of

justice. In fact he improved the variety of the definition of law of the Analytical

School of Jurisprudence. Salmond associated law with the element of right or justice,

an aspect totally excluded by Austin. Salmond’s definition of law indeed attempts to

remove all the shortcomings of the definition of law propounded by Austin and his

followers.

 

 

Elements of Salmond’s Law

1. Meaning of the term 'Law':

The expression ‘Law’ as defined by Salmond means the civil law i.e. the law

of the State, or law of the country or law of the lawyers and the courts. Law is defined

with reference to State. It is not an ideal or abstract law. It is positive and actual law

with which the ordinary lawyers are concerned with, i.e., the law of the land. In other

words, law consists whole body of legal system or legal order which actually

governed legal relationship between individuals in the administration of justice.

2. Recognized and Applied:

Salmond emphasizes that law must be recognized and applied by the State,

i.e., courts in the administration of justice. However, there are laws which are only

recognized. but not enforced. According to Salmond such laws are not laws. He is of

the view that laws are laws because they are recognised and applied by the courts. But

this is not a correct view. There are laws e.g. the prohibition laws in the United States

of America, and India, the Indian Dowry Act, 1961 the Directive Principles of State

Policy under the Indian Constitutor., the decree of the restitution of conjugal rights,

the Child Marriage Restraint Act, 1929 are some examples of law which cannot be

enforced because of prevailing social situation or lack of ready social acceptance of

such new norms of human behaviour. Yet they are all laws. In this respect Salmond's

definition of law is defective as much as it envisages like that of Austinian law is law

because it is recognized and applied by the State and does not take into consideration

the social disapprobation as an important factor for non-enforcement of law.

3. Administration of Justice:

According to Salmond the purpose of law is the administration of justice. He

says justice should be within the framework of law. He does not mean by it the ideal

or abstract justice. He says that law must be understood with reference to justice. It is

a means towards the attainment of justice and he defined law with reference to its

ends. Law is merely the instrument while justice is the end the primary purpose for

which the State exists. ‘Law is not right alone or might alone, but the perfect union of

 

 

the two. It is justice speaking to men by the voice of the State.’ In other words,

Salmond’s theory of law corresponds to its prevailing legal and political doctrine of

the rule of law which presupposes equality between men irrespective of social and

economic distinctions of caste, creed, religion or, status etc.

Criticism of Salmond's Definition of Law

1. Salmond says law is an instrument by which justice can be achieved. Paton while

agreeing with Salmond says that the purpose of law is essential to an

understanding of its real nature but the pursuit of justice is not the only purpose of

law; the law of any period serves many ends and those ends will vary as the

decades roll by. To seek for one term which may be placed in a definition as the

only purpose of law leads to dogmatism. In other words, ends of law vary and

change according to changing social requirements. According to Levy Ullmann

law may have many ends, e.g., security, order, general good and the greatest

happiness of greatest number or restructuring and revival of age-old cultural and

moral values and ideals to suit the contemporary needs.

2. Salmond did not define the expression 'justice'. Keeton says what has been

considered to be just at one time has frequently not been so considered at another.

Is the protection of private property or is its abolition a principle of justice? If we

say, with Lord Wright, that justice is that which appears just to the reasonable

man, the reasonable man evidently has different views on the matter at different

times and places and there may even be important differences in the point of view

between different reasonable men within the same community.

3. Dean Pound has criticised the definition of Salmond as reducing law to a mass of

isolated decisions and the law in that sense ceases to be an organic whole.

4. According to Lord Wright ‘although the guiding principle of deciding cases is to

do justice-that is justice according to law. But I have not found a, satisfactory

definition of justice’. Jethro Brown also agrees with Wright in this regard.

5. His definition applies only to case law and not to statute law. Generally speaking a

statute is law as soon as it is passed. It does not have to wait for recognition by the

courts before becoming entitled to the name ‘law’. Courts recognize a statute

because it is law. It is not merely law because the courts recognize it.

 

 

6. Salmond’s definition of course does not cover inter-national law nor does it cover

administrative law which is enforced administratively and not judicially.

Inspite of the above defects it may be said to the credit of Salmond that he has

brought about prominently the purpose of law i.e. justice in his definition. He has

associated law with its essential element of right and justice-an aspect which was

totally excluded by Austin. He does not base his definition on the command of the

sovereign nor he excludes customs, public opinion and religion which has its impact

on law. He also does not exclude the ethical aspect of law. And above all Salmond’s

definition has further merit in the sense it stands as a landmark and a challenge to

those who propagate the establishment of social justice independent of law i.e. the

Marxists. He showed that justice can be established through the rule of law and not

necessarily by violence only.

For the twenty-first century Salmond’s definition of law contains all the necessary

ingredients of a just and humane law indispensable for a democratic and egalitarian

society where individual rights, freedoms and dignity is end or goal of law subject to

overall good of the society.

H.L.A. Hard – Definition of Law

There is a gap of almost of a century between John Austin (1790-1859) and

Professor H.L.A. Hart who is the leading legal philosopher of positivistic theory of

law in contemporary England. In his key work The Concept of Law, 1961 Professor

Hart has re - determined the contours of positive law which were determined by John

Austin in his classic work ‘Province of Jurisprudence Determined 1832’. The main

theme of Professor Harts’s The Concept of Law is to pin-point certain glaring shot

comings and defects which Austin himself could not foresee or which he could not

resolve. Hart’s main objective of focussing on such inadequacies of Austin’s theory of

law is aimed at ‘our further understanding of law, coercion and morality’ which also

form the basic rubric of positivistic theory of law in the twentieth century.

Austin’s Inadequacies

 

 

(1) According to John Austin the notion of law as command carries with it

threat, physical coercion or intimidation necessary for compliance. Professor Hart

says the picture of law that Austin wants to convey is more like the case of a gunman

making demand backed by threat than a sergeant giving an order to a subordinate. He

says law is not a gun-man situation like ‘handover the money or will shoot you’; (2)

Austin's concept of law, says Hart, is in the nature of penal or criminal statute or with

laws that impose penal duties. Whereas according to Hart there are sometimes power

conferring law or rules like that of marriage, will or contract which do not impose

penal duty; (3) Professor Hart also rejects the view of John Austin who treats nullity

as sanction. Hart says sanction can be distinguished from nullity because unlike

nullity sanction is intended to discourage or suppress certain behaviour. However,

Hart says nullity could never fit in this model; (4) Another anomaly of Austin,

according to Hart, is that sovereign is considered above law with unlimited and

illimitable power. On the other hand, he says, in all legal systems particularly in

federal countries like US, Australia and India where sovereignty is divided and the

sovereign is subject to or bound by the Constitution, by law and moral, social and

external compulsions.

Hart-Law Defined

As already observed Hart gives an alternate notion of law as substitute to that

of John Austin avoiding his pit-falls and projecting a definition more sociological and

realistic in spirit which the so-called father of analytical jurisprudence denied and

decried. Hart on the other hand has sensitised the twentieth century positivists of the

need of linking law with social ethos and values without making it purely formal in

form and coercive in content. As to the central question as to what the ‘law’ is Hart

first rejects Austin’s concept of law as command which Austin considered ‘Key to the

science of jurisprudence’. On the other hand, Hart in his The Concept of Law says

that law is a system of rules-the primary and the secondary rules ‘their union or

combination may justly be regarded as the essence of law’. Thus a union of primary

and secondary rules is the most important feature or essence of a legal system. The

two types of rules the union of which Hart claims provides ‘the key to the science of

 

 

jurisprudence’ are described by him as primary rules and secondary rules-the former

duty imposing and the latter power conferring rules.

(a) Primary and Secondary Rules

Hart conceives the picture of a primitive community without legislature,

courts or officials. Such a society is living what Hart calls ‘pre-legal state’ where

social control is based on a regime of unofficial rules. Such form of social control in

primitive society suffer from three defects which require supplementation. The first is

uncertainty as to what the rules are or their scope. The second defect of such rules is

that they are static in character as there is no method to change such rules according to

changing circumstances ‘either eliminating old rules and introducing new ones’. The

third defect of the regime of primary rules of primitive society suffer from

‘inefficiency’ the diffuse social pressure by which rules are maintained.

The remedy for these defects consists in supplementing the primary rules of

obligation with secondary rules which Hart terms ‘a step from the pre-legal into legal

world’. The three remedies introduced by him to remove the defects of the primary

rules is sufficient to bring about a legal system thus in this way law is viewed as the

union of primary and secondary rules. The remedy for uncertainty is the introduction

of what Hart calls a ‘rule of recognition’. Such a rule may be in the form of written

document or carved on some public monument, a rule of conclusive evidence of the

identification of primary rules of obligation. This disposes the doubts or uncertainty

about as to what the rules of the community are and what their scope is. The remedy

for the defect of static quality of primary rules is the introduction rules of change

which empower certain individuals to introduce new rules relating to the conduct of

the members of the group and to eliminate old rules. So remedy the defect of

inefficiency secondary rules of adjudication are introduced which among other things

confer power to ascertain whether rules have been violated. Thus Hart has discovered

in the union of primary and secondary rules the most important feature of his legal

system-‘the key to the science of jurisprudence’.

(b) Rule of Recognition

Professor Hart’s thesis that a rule of recognition exists in every legal system is

the central feature of his positivistic legal theory. It is the rule of recognition, Hart

 

 

asserts, that distinguishes which things are law and which are not and that the criteria

or means for identifying the valid law. The rule of recognition, Hart argues, is the

ultimate-in the sense the validity of other rules is to be determined in the rule of

recognition itself. ‘The rule of recognition’ Hart concludes ‘exists only as a complex

but normally concordant, practice of courts, officials and private persons in

identifying the law by reference to certain criteria. Its existence is a matter of fact’. In

short, what Hart has done here is to make the rule of recognition sovereign in a way

which is strictly analogous to the sovereignty of the determinate persons constituting

the Austinian sovereign. Rules of recognition like Austinian sovereign just exist while

the latter die the former fade away into disuse.

(c) Open Texture of Law

There is one further aspect of Professor Hart’s positivism which relates to

judicial law making through decisions. Hart is aware that sometimes cases or situation

may arise that are no1 clearly provided or covered by the rules of law. This is due to

large measure what he calls the ‘open texture of law’ the ‘penumbral’ areas ~n every

rule of law where it is not clear what the rules require. In cases of this type, Hart says,

judges have a limited discretion to decide whether rule is to be applied or not. This

discretion, however, is limited must be conceived in positivism as permitting judges

to look outside the law for standards to, guide them in supplementing the old legal

rules or creating new ones to meet the needs or changing situations and times. Thus

extra legal moral standards become appropriate in statutory and constitutional

interpretation of law.

(d) Law and Morality

As to relationship between law and morality Hart's position is that every viable

legal system must satisfy certain minimal moral requirements. Hart in his The

Concept of Law stresses that law and moral rules must satisfy minimal content of

natural law: These are: (i) human vulnerability i.e. the basic character of law and

morals is to restrict use of violence in killing or inflicting bodily harm; (ii)

approximate equality, i.e., human beings are approximately equal in strength, and

intelligence; (iii) limited altruism i.e. human beings are

 

 

. not predominantly selfish nor altruistic but a bit of each; (iv) limited resources which

makes the institution of property necessary and (v) limited understanding and

strength of will making sanction necessary. These are natural facts for, survival and

both law and morality must have certain content of it.

Lon L. Fuller-Definition of Law

Professor Lon L. Fuller of Harvard University has attacked analytical

positivists for their separation of law from morals. Fuller says analytical positivists

insist on drawing a sharp distinction between law as it is and law as ought to be. This

is done to purge or purify it from what Kelsen calls a ‘wish law’ who excludes ethical

or moral content from law. To serve this end the positivists neatly separate and draw a

wall of separation between ‘is’ and ‘ought’. Fuller in his book The Morality of Law

(1964) says it is difficult to draw such line between law and morality as law cannot be

without its what he calls internal morality and external morality. He maintains that

the purpose of a legal system is to subject human conduct to governance of rules. Law

is not a mere data or fact but a purposive effort to subject human conduct to rules. It is

an activity that is the ‘product of a sustained purposive effort’. A legal system must

not only be created but also be maintained and eight conditions are necessary, says

Fuller, if a system of legal rules is to be created and maintained. In particular Fuller

asserts the laws must not be (1) ad hoc, (2) non-publicised, (3) retroactive, (4)

incomprehensible, (5) contradictory, (6) require the impossible, (7) introduce frequent

changes and (8) perpetuate a failure of congruance between rules and their actual

administration. A ruler who tried to subject human conduct to the governance of rules

but failed to fulfill these conditions would fail in his purpose; hence fulfillment of

these conditions is necessary.

These conditions constitute what Fuller calls the internal morality of law. The

internal morality of law is contrasted with external morality of law in that the eight

conditions are not concerned with any specific topics of law making, such as

polygamy, the study of Marx, the worship of God, the progressive income-tax or the

subjugation of women. The eight conditions thus form a ‘procedural’ version of

natural law-procedural because nothing has been said about the context of the rules,

and a version of natural law because:

 

 

“a total failure in anyone of these eight directions does not simply

result .in a bad system of law results in something that is not properly

called a legal system at all, except perhaps in the Pickwickian sense in

which a void contract can still said to be one kind of contract. Certainly

there can be no rational ground for asserting that a man can have a

moral obligation to.”

According to Fuller the idea is that if a ruler tries to create a legal system and

fails to meet the eight conditions (or even one of them) then it is not just that he has

created a bad legal system, but that he has created none at all. It is for this reason

Fuller claims it is impossible if the eight conditions were satisfied in Nazi Germany.

On the contrary all the eight conditions were violated and that, therefore, during

Hitler’s regime there was no law at all in Nazi Germany. In short Fuller’s eight

procedural conditions are moral requirements that must be satisfied if there is to be a

law at law. Likewise it can be also said that during the Internal Emergency in India

1975-76 the Maintenance of Internal Security Act (MISA) etc. had violated all the

eight conditions of Fuller’s version of natural law. On this analogy can it be said that

one or two lawlessness of law India had not only an unjust law but lacked a valid

legal system at all. Like Radbruch and Fuller in India, Justice Khanna was demanding

initiative from the Court not to be insensitive to moral values and human rights as

enshrined in the Constitution. The positivistic approach of the Court had rendered

people the victim of unjust law which lacked all the elements of morality of law-

internal and external. Chief Justice Ray, Justice Chandrachud, Justice Bhagwati and

Justice Beg constituting the majority decision in Habeas Corpus ease favoured the

blanket suspension of the writ of habeas corpus by expounding the ‘preventive

jurisprudence’ - a variant of analytical positivism. As Chief Justice Ray asserted.

'Liberty is itself the gift of the law and may by the law be forfeited or abridged.

However, the Prevention of Terrorists Ordinance (POTO), 2001 cannot be said to be

in any way a violation of human rights or natural law as its principal objective is to

protect and defend the country from terrorist and subversive criminal acts of Islamic

fundamentalists and in no way can be said violative of Prof. Fuller's version of natural

law.

 

 

Definition of Law in terms of Social Ends or Interests

As already stated that law can be defined not only in terms of command or

judicial process but in terms of needs of the community life. In the twentieth and

twenty-first centuries we see the beginning of functional and relativist approach. With

the advance of science and technology the, theory of law has been secularized and has

become more pragmatic and realistic in terms of material needs .of human. beings.

Old definitions, concepts, and theories of law are being discarded as unnecessary,

undesirable and incorrect for resolving new situations and conditions. A functional

theory of law is not concerned with the ideal or nature or basis of law. It is more

concerned how it works in resolving conflicting interests. As such, law is considered

as a social institution to satisfy social wants-the claims, demands and expectations

involved in the existence of civilized society. No formal definition of law, therefore,

is necessary or desirable or even possible. For instance, Dean Pound defines law in

terms of maximum satisfaction of human wants, demands and interests. Even before

Dean Pound, Bentham, Ehrlich, and Ihering defined law in terms of social ends

without bothering for a formal definition.

Criticism

1. This definition of law is pragmatic in the sense that it does not provide any

method for evaluating the relatively pressing social interests from that of lesser

ones.

2. The above definition is not much concerned with justice according to law. Justice

has to be achieved either through law or administratively.

3. The law becomes more a hunch of the individual for balancing conflicting

interests.

Definition of Law in Terms of Abstract Ideals

The law has also been studied in terms of higher ideals and abstract values

since the times of ancient Greeks, Romans and Hindus. The jurists in different legal

systems emphasized the ethical or moral view and tried to set up an ideal of human

conduct. As such law has been defined in terms of ideal natural law or physical law

by the Greeks, in terms of human reason by the Romans and in terms of Dharma by

 

 

the Hindus. Thus, a philosophy of law in terms of ideal values of eternal immutable

and everlasting character emerged to maintain or change existing legal and political

institutions. Cicero, Grotius, St. Aquinas, Duguit, Locke, Rousseau, Kant, and in

modern times Stammler and Radbruch have given a formal definition of law to suit

the exigencies of each period and time. The quest for justice, equality and ethical

values as ultimate ends of law has been the theme of these various jurists.

Criticism

1. The jurists of the natural law philosophy do not take into consideration the

immediate realities of life. Their approach towards law and society is much

more philosophical or abstract than practical.

2. They are more concerned with the form of law rather than its content or

objective facts in relation to life as it exists. They do not bother about the

content of justice or human values.

3. They provide no machinery or method for the realization of ideals set for the

individuals. Thus it is an unscientific theory of law.

4. Law cannot be defined with reference to· abstract ideals only. Law is a social

institution for maximum satisfaction of human needs and wants, etc.

Definition of Law and Historical Aspect

Likewise law can be defined in the historical sense. According, to Historical

Jurisprudence law can be understood only with reference to its growth, origin and

development. So law is regarded as custom and usages only. Of course jurists like

Savigny, Sir Henry Maine, Vinogradoff and Maitland etc., limit or restrict law within

the confines of past history and traditions.

Criticism

1. It is incorrect to say that law is only customs.

2. The above definition does not take into consideration other socio-

psychological factors that shape and make law as an instrument of social

change.

 

 

3. The above definition is inadequate and wrong in as much as it is inapplicable

to modern times.

4. It takes into consideration only One aspect of law which is most defective and

incorrect too.

Conclusion:

The above manifold aspects of the definition of law are correct in so far as

each aspect embodies the accepted values and goals of human society at different

periods and in different countries. Hence the study of every aspect becomes not only

necessary but useful also for a clearer and broader understanding of the basic

perspectives of law. To define law with reference to one aspect is not only incorrect

but also inadequate for law is a dynamic institution for achieving the set-social goals.

Hence the above approaches are complementary and supplementary to each other.

However, in the words of Levy-Ullmann a definition of law should have two

aims; Firstly to make precise the meaning of law, and secondly, to call up in the mind

of the reader a true picture of law and its operation. Thus Paton gives a more

sociological and pragmatic enunciation of the concept and meaning of law. He says

the existence of law pre-supposes a community, implies in the community is the

acceptance of a set of values dealing with fundamental issues on which the existence

of that society depends.