 Law is called ‘Dharma’ among

Hindus; ‘Hukum’ among Islam;

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 Oppenheim – “common consent of this
community”
PROMINENT SCHOOLS OF LAW
ANALYTICAL SCHOOL
(IMPERATIVE, POSITIVE,
AUSTINIAN )
 BENTHAM – was founder of
positivist school. He wrote “The
limits of Jurisprudence defined”. He
was an individualist utilitarian. He
believed that end of law is greatest
happiness of greatest number
(pleasure and pain theory). He
pleaded for codification of laws.
 AUSTIN – was father of this school.
He wrote “the province of
Jurisprudence determined”.

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 According to him Law was
classified into Law properly so called
and Law improperly so called .
Former category was law since it
was backed with sanctions, positive
law Whereas later category was not
law since it lacked sanctions,
positive morality. According to him
International law was not law only
positive morality.
HISTORICAL SCHOOL
 Savigny, Montesquieu , Hugo etc were
members of this school. According to
this school, “Law is found and not
made”.
 SAVIGNY is founder of this school.
He wrote an essay “Vom - Beruf”. He
said “ law grows , strengthens with
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 people and dies when nation loses its
nationality”. According to him
‘Volkgeist’ is general will and it is the
only source of law.
 According to them Custom is superior
to law . Custom per se is law. (unlike
Austinians). They opposed
codification of laws.
 KELSON propounded the pure theory
of law . he said “Grundnorm ” is the
general will and every law derives its
origin from this.
PHILOSOPHICAL SCHOOL
(ETHICAL , METAPHYSICAL)
 According to this school Law and
morals are mixed together. For them
Law is product of human reason and
purpose is human perfection.
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  KANT - his theory is based on
human consciousness and human
reason.
 HEGEL – he was the most
prominent thinker of this school. He
considered law and state as
evolutionary product of human
reason.
SOCIOLOGICAL SCHOOL
 It evolved in 20th century . They talked
of relation between law and society.
 ROSCOE POUND – Father of
sociological school. He gave the theory
of ‘Social Engineering’ i.e., satisfying
maximum interest or want with least
friction . He advocated for Judicial
Activism and working of Tribunals.

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  AUGUST COMTE – Founder of this
school. He was the first jurist to use
the word “Sociology”. He gave the
theory of Social solidarity.
 IHERING - was a Social utilitarian.
FRIEDMAN calls him the Father of
Modern Sociological Jurisprudence.
NATURAL SCHOOL
 Aristo laid the foundation of natural
law theory.
 Gortius , Hobbes , Rousseau etc
advocated for the theory of “Social
Contract”.
SOURCES OF LAW
 CUSTOM – the essential requisites for
custom to become law is that of
antiquity, continuance, peaceful
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 enjoyment, certain, consistency,
reasonableness, in conformity with
statute law.
Austin says custom becomes law when
sovereign approves.
Gray says custom becomes law when
judges approve.
Savigny says custom is law per se.
In India, position is custom is one of
the sources of law and is not law per
se.
 Precedent or Judge made law (concept
of stare decisis). It is of two types (i)
authoritative I,e., Ratio Decidendii
and (ii) persuasive i.e., Obiter Dicta
In india, judgements of High Court is
binding on District Courts. For other
High Courts, it holds a persuasive

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 value similarly Foreign Judgements
have persuasive value on Indian
Courts. The Supreme court is not
bound by its own decisions. Thus
doctrine of Stare Decisis is not
followed by Supreme Court.(article
141) as also held in Bengal Immunity
co. Vs State of Bihar, 1955
 Legislation is again of two types
(I)Supreme i.e., an Act of Parliament,
and (ii) Subordinate or Delegated i.e,
any rules passed by the Executive
body. In Re Delhi law case (1951) it
was held that supreme legislation cant
delegate “essential legislative
functions”.
 Administrative law has two important
doctrines, (i) Rule of Law which is

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derived from the French phrase “la
principle de legalite”(the principle of
legality) as opposed to the arbitrary
and tyrannical powers. It was
developed and established by A.V
Dicey. He in his book “the law of the
constitution” gave three meanings to
the concept- Supremacy of Law,
Equality before Law and
Predominance of Legal spirit. In India
Article 14 embodies the concept.
Important cases- A.K Kraipak vs
UOI,1970 the SC observed that Rule of
Law as Basic Structure. In Indira
Gandhi vs Raj Narain 1975 , 39th
amendment (election of PM and
speaker cant be challenged)was
challenged and inserted in 9th schedule,

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held to be violative of Rule of Law. In
ADM Jabalpur vs Shiv kant Shukla
1976 (habeas corpus case) article 21 is
our rule of law regarding life and
liberty. Justice Khanna observed,”rule
of law is antithesis of arbitrariness in
all civilised societies”. In Bachan singh
vs state of Punjab,1982, justice PN
Bhagwati observed, for rule of law,
law must not be arbitrary and must
satisfy the test of reason. In DC
Wadhwa vs State of Bihar,1987 the
rule of law regulates the govt.
Whether its legislative or executive or
others, the Executive has to justify the
repromulgation of ordinances
otherwise its “fraud on the
Constitution”. In re Arundhati Roy ,

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 2002 it was observed, it is only
through the Courts that the rule of law
unfold its contents and establishes its
concept.
 Separation of Power – formulated by a
French jurist, Montesquieu in his
book, The Spirit of Law. In US it is
followed strictly. In India, like
England there is parliamentary form
of Govt., where executive is very
important part of legislature. So the
doctrine is not followed strictly and is
not accorded a constitutional status
other than article 50. Hence, we do not
follow the doctrine with rigidity but
then the essential functions have been
sufficiently differentiated. Important
cases, in Re Delhi laws case ,1951

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Ram Jawaya vs State of Punjab ,1955
Indira Gandhi vs Raj Narain, 1975 Asif
Hameed vs State of J&K, 1989 M.Nagaraj
vs UOI , 2006 etc
 Major Legal systems of the world are
primarily divided into two folds,
Common law system and Civil Law
system.
 Important traits of Common Law
System—generally uncodified, largely
based on precedents, adversarial
system( i.e., a dispute between two
opposing parties before a Judge who
adjudicates), it is genesis to the
concept of writs and equity. It was
started in Britain and brought to
America esp North America

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 Important traits of Civil Law
System—codified, inquisitorial system
(judge participates and decides),
introduction of substantive,
procedural and penal laws, came into
practise throughout Europe
 In India , the legal system is a blend
but by and large follows Common law
base and Personal law Base. Indian
system is sui generis and is confluence
of all major legal system. Civil law
attributes are also present like the
substantive and procedural law, s165
(judges power to ask questions , order
productions) Indian Evidence Act etc
 Tribunals (administrative Justice)
(articles 323A & 323B). The Law
establishing Tribunals may exclude

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 the jurisdiction of all Courts except
the SC under Artcle 136. (special leave
petition ) important cases SP Sampat
Kumar vs UOI 1987 it was held that
the tribunals are invested with the
jurisdiction of HC . in L.Chandra
Kumar vs UOI 1997 it was held that
Tribunals constituted under articles
323A and 323B are also subject to writ
jurisdiction of HCs

THEORIES OF
PUNISHMENT(INDIA)
Deterrent theory – to deter,or
exemplify, In Indian context example
can be punishment of Death penalty.

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Preventive theory – to prevent and not
punitive, example can be cancellation or
impounding of license, provision of
Preventive Detention under Indian
Constitution.
Reformative theory – the modern
approach, example can be s.360
crpc,(provides provision for release on
probation of good conduct, other
conditions being fulfilled), provisions for
juvenile, admonition etc in the said Act.
Retributive theory - revenge oriented,
“eye for an eye , tooth for a tooth”.
Example can be the concept of
imprisonments.
TYPES OF RIGHTS

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Perfect and imperfect – former is right
plus remedy whereas later is only right
with no remedy. Example can be any
time barred claim or rights against
sovereign. The maxim ubi jus ibi
remedium doesn’t apply to imperfect
rights
Right in rem and personam- former
operates between parties
(CONTRACT)whereas later is against
the world at large.(TORT,ETC)
Re properia and re aliena – former is
wrt own property whereas later is wrt
others property.re aliena is also known
as encumbrances. Mainly there are 4
kinds of encumbrances (easement,
security, lease, trust)

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Positive right and negative right –
former involves positive duty whereas
negative duty.
Legal right and equitable right – both
the rights are recognised by the courts.
former comes out of a law and later
comes of Equity. in case of conflict, legal
right prevail.
Proprietary and personal right—rights
out of corporeal or incorporeal
properties are proprietory rights and
rights arising out of status are personal
rights. Former example can be
ownership right , later can be right to
reputation.
JURAL RELATIONSHIP ---
HOHFELD’S THEORY

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 Right- duty: priviledge – no right:
power –liability: immunity- disability
(Jural corelatives)
LEGAL PERSONALITIES---
 All human beings are not legal
persons. Lunatics and Infants are
bestowed with limited legal
personality. (their role in crime ,
contract, the role of next friend, lack
of basic civil rights like right to vote)
 Legal personality starts with birth and
ends with death. Under Hindu law, a
child in womb also enjoy right on
property if partition takes place
during that time and enjoy propriety
right if born alive, in case of death that
share of the property gets divided
among other coparcenors. S299(2),
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 explanation, provides that causing of
death of child in mother’s womb is not
homicide. But its CH if any part of the
body has come out
 Do mo tius nil nisi bonum means that
the dead have no rights and can suffer
no wrong. The maxim has 3 noted
exceptions. First, s.499, explanation 1
second, criminal law provides for
decent burial for all dead person
(s.297 IPC) third, law gives effect to
the desire of dead wrt his property
 Animals – if a trust made in favour of
particular classes of animals can be
enforced.
 Idol is legal person. Idol is treated as
minor, there is a guardian appointed
for them

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 State is a legal person
(art.300)(PERSON IS ONE WHO
CAN SUE OR BE SUED)
 Charitable trusts and funds are legal
person , certain institutions such as
church, universities, temple,
municipalities, gram panchayats etc
are conferred legal personalities

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