JURISPRUDENCE

UNIT-3
THE SOCIOLOGICAL PERSPECTIVE:-

Roscoe Pound – Sociological Jurisprudence

Introduction:
Roscoe Pound, an eminent American jurist and Dean of Harvard Law School, is one of the principal
figures of the Sociological School of Jurisprudence. He rejected the rigid formalism of earlier schools
like Analytical and Historical and emphasized that law must be studied in its social context. Pound
argued that law is not merely a set of abstract rules but a practical instrument to ensure the
satisfaction of social needs. His central idea was that law should be used as a tool for “social
engineering.”

Key Contributions:

Law as a Tool of Social Engineering:

Pound famously described law as a means of “social engineering,” wherein the legal system acts like
an engineer that balances competing societal interests. The objective of this balancing is to build a
stable society while achieving the maximum benefit with minimal friction. This requires
understanding the real needs of society and tailoring legal rules to meet those needs.

Thory of Interests:
Roscoe Pound developed the Theory of Interests to guide how law should function in society.
According to him, law is not an end in itself but a means to balance competing claims or interests in
society to achieve social harmony. His theory provides a framework to evaluate and guide legal
policies by recognizing, classifying, and reconciling various social demands.

What is an “Interest”?

An interest, in Pound's view, is a claim or want that people seek to satisfy and that society is willing
to recognize and protect through the legal system. These interests may belong to individuals, groups,
or society at large Pound argued that the role of law is to weigh these interests fairly and promote
justice by minimizing conflict among them.

Classification of Interests

Pound classified interests into three main categories:

A. Individual Interests - These are interests that are directly related to individual human beings. They
focus on the rights, freedoms, and protections that each person requires for a dignified existence.

Examples include:

Personal security (life, body, reputation)

Freedom of will (liberty of action and speech)

Acquisition and enjoyment of property

Freedom of contract

Privacy and family relationships

These are the interests that legal systems must safeguard to promote personal autonomy and dignity.

B. Public Interests - These refer to the interests of the state as a functioning entity and the well-being
of its government and administration.

Examples include:

Public order and safety

National security

Efficient administration of justice

Revenue collection

Public health and education

Public interests ensure that the state has the capacity to function effectively and provide services to
its citizens.

C. Social Interests - These interests concern collective life and the well-being of society as a whole.
They reflect the values, morals, customs, and expectations that hold a society together.

Examples include:

Social morality and ethics.

General welfare and economic stability

Cultural preservation

Social institutions (like marriage, religion, education)

Sustainable use of natural resources

Social interests are the broad values that provide the foundation for social cohesion.

3. Balancing of Interests – The Task of Law - Pound believed the primary role of law is to balance
these competing interests in a fair and just manner. The state, through legal institutions like
legislatures and courts, must:

1. Recognize legitimate interests

2. Prioritize them when they conflict

3. Adjust or compromise them to promote the overall good

4. This process requires judges and lawmakers to act like social engineers, applying legal
principles not abstractly, but in light of their real-world social impact.

Jural Postulates of a Civilized Society:

Pound laid down certain "jural postulates" which, in his view, every civilized society must secure
through its legal system. These include assumptions like individuals acting in good faith, the use of
reasonable care, and the protection of expectations under lawful conduct. These postulates serve as
guiding principles for judges when balancing conflicting interests.

Emphasis on “Law in Action”:

Pound made a critical distinction between “law in books” (theoretical or codified law) and “law in
action” (how law actually operates in society). He argued that a sociological approach must analyze
how legal rules are applied in reality, not merely how they are written. This approach paved the way
for legal realism and empirical studies of law.

Role of Judges and Courts:

In Pound’s framework, judges play a crucial role in identifying and reconciling competing social
interests. He advocated for an activist role for the judiciary to ensure that law evolves in line with
societal needs and values.

Criticisms:

• Idealistic and Abstract: Critics argue that Pound's theory, though appealing, is often too
idealistic. The process of balancing interests is vague and lacks a clear methodology.

• Judicial Overreach: His emphasis on judges as agents of social reform may lead to judicial
activism, thereby encroaching upon the roles of the legislature and executive.

• Neglect of Power Dynamics: Pound’s theory assumes a consensus-based society and does
not adequately consider the influence of economic and political power structures on
lawmaking.

2. Eugene Ehrlich – Living Law and Legal Pluralism

Introduction:
Eugene Ehrlich, an Austrian jurist and sociologist, was a pioneering figure in the development of
sociological jurisprudence. Disenchanted with the rigid legal formalism of the analytical school,
Ehrlich argued that the heart of legal development lies not in statutes or judicial decisions, but in the
actual social practices of people. His theory introduced the groundbreaking concept of “living law”,
emphasizing that the real source of law is society itself.

Concept of Living Law:

Ehrlich’s central idea was that law lives outside the law books. According to him, “the centre of
gravity of legal development lies not in legislation or judicial decision, but in society itself.” He
termed the informal rules, customs, and social practices followed by people in their daily interactions
as “living law” (Lebendes Recht).

This living law is the true operative law in society because it governs everyday behavior and has real
social authority—even if it is not codified. For example, business customs, village dispute resolutions,
or family practices may regulate conduct more effectively than formal law.

Ehrlich believed that many legal conflicts and solutions are resolved outside courtrooms, through
these informal norms that people recognize and respect as binding.
Distinction Between Types of Legal Norms:

To support his theory, Ehrlich made a distinction between two types of legal norms:

(a) Entscheidungsnormen (Decision Norms):

These are the norms applied by courts and formal legal institutions. They are found in statutes,
judicial decisions, and codified laws. They become relevant when a dispute reaches the legal system
and needs official resolution.

(b) Lebendes Recht (Living Law):

This refers to the law actually followed by people in their social life. It includes customs, moral
obligations, local traditions, and informal practices. This type of law regulates social behavior in
families, businesses, associations, and communities—even when it never appears in a statute.

According to Ehrlich, living law is the foundation on which formal legal systems are built. When
judges interpret or create new legal rules, they often draw from the values and expectations
embedded in living law.

Contribution to Legal Pluralism:

Ehrlich’s recognition of non-state sources of law contributed to the concept of legal pluralism, where
multiple legal systems—such as religious, customary, and state law—coexist within a single society.
This is particularly relevant in pluralistic societies like India, where informal dispute resolution
(panchayats, religious courts, community norms) often governs alongside formal legal institutions.

Criticisms:

• Ambiguity: Critics argue that Ehrlich does not clearly define the boundaries between legal
and non-legal norms. Not every custom or moral rule can or should be treated as law.

• Undermines legal certainty: Relying too heavily on unwritten, informal norms may make law
unpredictable and subjective.

• Limited role of courts: Overemphasis on social norms may diminish the authority and
importance of judicial decisions and legislation.

Emile Durkheim – Social Solidarity and Law

Introduction:
Emile Durkheim, a French sociologist, is a foundational figure in the development of sociological
jurisprudence. Unlike legal theorists who focused solely on statutes and judicial decisions, Durkheim
emphasized that law is a reflection of society’s moral values and collective consciousness. He argued
that the structure and nature of law change depending on the type of social solidarity that prevails in
a given society. His major work, “The Division of Labour in Society” (1893), forms the basis of his legal
theory.

Law as a Reflection of Social Solidarity:

Durkheim introduced the idea that law expresses the type of social solidarity within a society. Social
solidarity refers to the bonds that unite individuals and enable them to coexist harmoniously. He
identified two main types of solidarity—mechanical and organic—each giving rise to different forms
of law.

Mechanical Solidarity and Repressive Law:

• Mechanical solidarity is found in traditional and less complex societies, where individuals
share similar beliefs, values, and lifestyles. The social cohesion is based on similarity and
collective conscience.

• In such societies, law is repressive in nature. Its primary function is to punish and deter. Any
violation of social norms is viewed as a threat to the collective conscience and is met with
severe punishment.

• Example: Tribal communities or early religious societies where moral deviation is treated as a
crime against the whole group.

Organic Solidarity and Restitutive Law:

• Organic solidarity emerges in modern, complex societies, where individuals perform

specialized roles and are interdependent. Social unity is based on the need for cooperation,
not similarity.

• Law in these societies is restitutive rather than punitive. It aims to restore relationships and
maintain social equilibrium rather than punish offenders harshly.

• Example: Modern contract law, commercial disputes, or civil law mechanisms that aim to
compensate and reconcile rather than incarcerate.

Law and Moral Density:

Durkheim introduced the concept of moral density, which increases as societies become more
complex. With higher interaction and interdependence among individuals, law becomes more
refined, differentiated, and oriented toward restoring disrupted social relations rather than punishing
moral transgressions.

Contribution to Sociology of Law:

Durkheim’s work laid the groundwork for viewing law as a social institution, shaped by the collective
moral and economic life of society. He emphasized that studying law requires an understanding of
the social fabric, division of labor, and moral beliefs of the population.

Criticisms:

• Oversimplification: Critics argue that his binary classification of law (repressive/restitutive)

does not account for hybrid legal systems where both types coexist.

• Idealistic View of Society: Durkheim assumes that laws always reflect collective morality,
ignoring the role of political power, class interests, and coercion in lawmaking.

• Limited Focus on Legal Institutions: His theory does not explain how courts and legislatures
evolve as independent bodies of power.
MAX WEBER ( TYPOLOGY OF LAW, THEORY OF LEGITIMATE DOMINATION, CAPITALISM AND LAW )

Introduction:

Max Weber (1864–1920), a key figure in the sociological school, explored the relationship between
law, society, authority, and economy. He was less concerned with what the law ought to be
(normative jurisprudence), and more with how legal systems evolve, are structured, and interact
with societal institutions—especially bureaucracy and capitalism. His theory is rooted in the idea of
rationalization, where societies increasingly rely on rule-based systems over traditional or emotional
reasoning.

Typology of Law – Weber’s Legal Rationality Matrix

Weber classified legal systems based on two dimensions:

• Formal vs. Substantive reasoning: Whether law is applied through procedures (formal) or
guided by external values (substantive).

• Rational vs. Irrational systems: Whether reasoning is logical and systematic (rational) or
based on emotion/tradition (irrational).

This gives four ideal types of law:

Type Meaning Example

Formally Irrational Decisions are made without consistent rules, Trial by ordeal, judgment by
Law based on oracles, rituals, or divine signs. priests.

Judgments are made according to ethical, Feudal lords dispensing justice,

Substantively
emotional, or religious values, with little regard Shariah law based on the Qur’an
Irrational Law
for legal procedure. alone.

Law is applied through general, abstract rules Modern Western legal systems,
Formally Rational
using logical deduction. Legal reasoning is codified laws, courts using
Law
independent of politics or morality. precedent.

Socialist legal systems (e.g.,

Substantively Law reflects ethical, political, or religious
USSR), religious legal codes
Rational Law values, but is still applied in a systematized way.
applied by trained clerics.

Theory of Legitimate Domination – The Basis of Authority and Legal Order

Weber's theory of domination (Herrschaft) explains why people obey the law and accept the exercise
of power. He identified three types of legitimate authority, each shaping the nature of legal systems:

(A) Traditional Authority

• Legitimacy is rooted in custom, heritage, and time-honored norms.

• Legal norms are customary and unwritten.

• Laws change slowly and are enforced by elders, kings, or tribal leaders.

• Example: Monarchies, feudal systems, caste-based village panchayats.

(B) Charismatic Authority

• Based on the personal qualities and vision of a leader who inspires devotion.

• Laws may be arbitrary or inconsistent, depending on the will of the leader.

• Often arises during crises or revolutions.

• Example: Mahatma Gandhi’s leadership, religious prophets, revolutionary commanders.

(C) Rational-Legal Authority (Most Important for Weber)

• Based on clearly defined legal rules and institutional procedures.

• Authority resides in the office or system, not the individual.

• Legal processes are impersonal, codified, and systematic.

• Judges, bureaucrats, and legislators act under rules, not personal will.

• Example: Modern democracies, administrative law, constitutional courts.

Capitalism and Law – The Role of Legal Rationality in Economic Systems

Weber's key thesis was that modern capitalism could not have developed without rational law.
Capitalism, in Weber’s view, depends not only on capital or labor but on legal systems that ensure
calculability, accountability, and enforceability.

(A) Formal Legal Rationality Enables Capitalism:

• Capitalism requires:

o Stable contract laws

o Clear property rights

o Reliable dispute resolution

• Formally rational law allows parties to predict outcomes, which is essential for long-term
economic planning and investment.

(B) Bureaucracy and Professionalism:

• Legal systems in capitalist societies rely on:

o Trained legal professionals (judges, lawyers, administrators)

o Standardized procedures and case management

• Bureaucracy ensures laws are applied neutrally and uniformly.

(C) Calculability and Predictability:

• Businesses can plan and execute contracts because they know courts will follow written
rules.

• This is vital for a complex, market-driven society.

• Weber contrasted this with pre-modern systems where outcomes depended on status,
tradition, or corruption.
(D) Disenchantment of Law (Entzauberung):

• Rationalization removes moral and emotional content from law.

• Law becomes technocratic—a matter of rules and expertise, not conscience or justice.

• Individuals comply not because laws are “just,” but because they are legally binding.

• Weber warned of an “iron cage” of bureaucracy that may stifle human freedom and moral
values.

Criticisms of Weber’s Theory:

1. Eurocentric Bias:

o His analysis focuses mainly on Western Europe and may not fit societies with
pluralistic or customary law systems.

2. Overemphasis on Rationality:

o Many modern laws incorporate substantive values (e.g., human rights,

environmental law), contradicting Weber’s model of neutral bureaucracy.

3. Neglect of Grassroots Law:

o Weber paid little attention to informal or community-based dispute resolution,

unlike jurists like Ehrlich who emphasized “living law”.

4. Moral Disengagement:

o Rational legal systems, while efficient, may alienate individuals, as they reduce
justice to rule-following without room for empathy or fairness.

KARL MARX ( IDEOLOGY AND LEGAL FETISHISM ); JURGEN HABERMAS ( CONCEPT OF MODERN
STATE AND LAW )

Karl Marx – Ideology of Law and Legal Fetishism

Introduction:

Karl Marx’s sociological jurisprudence views law not as an independent or neutral set of rules but as
a reflection of the underlying economic and class relations in society. According to Marx, law is part
of the superstructure shaped by the economic base, where the capitalist mode of production
dictates the social, political, and legal institutions. He argued that law functions primarily as an
instrument to perpetuate the domination of the ruling capitalist class (bourgeoisie) over the working
class (proletariat), serving to maintain social inequality under the guise of neutrality and fairness.

Law as Ideology

Marx’s fundamental claim is that law operates as an ideology that legitimizes and naturalizes
capitalist social relations. While law presents itself as a system of universal and impartial rules
protecting rights and freedoms, it essentially serves to reinforce existing power structures.
 • Protecting Capitalist Interests: Law protects private property rights and capitalist interests by
legally enforcing contracts and ownership, which are essential for capitalist accumulation.

• Masking Exploitation: Legal rules portray social and economic inequalities as fair or natural,
disguising the exploitation of labor inherent in capitalism.

• False Consciousness: Through law’s ideological function, people accept their subordinate
status and the capitalist system as just, preventing revolutionary awareness or resistance.

Legal Fetishism

Marx introduced the concept of legal fetishism by drawing analogy with his concept of commodity
fetishism from his critique of political economy.

• What is Legal Fetishism? It refers to the mystification of law, where law is treated as an
autonomous, objective, and self-sufficient system, independent of social and economic
relations.

• Masking Social Reality: Just like commodity fetishism masks the labor relations behind goods
by treating commodities as having intrinsic value, legal fetishism hides the real class power
and social relations that law serves.

• Formal Equality vs. Substantive Inequality: The principle of formal equality before the law
masks substantive social and economic inequalities. For example, while all citizens are legally
equal, in reality, the wealthy have more access to legal resources, influence, and power.

• The Illusion of Neutrality: Law appears neutral, but it is a "fetish" because it obscures the role
of law as a mechanism for class oppression, presenting social power relations as mere legal

Law and Capitalist Social Relations

Marx sees law as inseparable from capitalist economic relations.

• Instrument of Class Domination: The state and law are instruments wielded by the
bourgeoisie to maintain capitalist social order and suppress the proletariat.

• Alienation: Law categorizes social relations into legal rights and duties, but this legal
formalism alienates individuals from their real social conditions and labor.

• Revolutionary Role: Marx predicted that the proletariat would eventually overthrow this
legal and social order, dismantling bourgeois legal institutions and creating a classless society
with a new form of law aligned to socialist ideals.

Criticisms:

• Marx’s theory is often criticized for economic determinism, reducing law purely to economic
factors and ignoring law’s relative autonomy.

• His analysis can be seen as too reductive, ignoring how law can also protect individual rights
and facilitate social justice.

• The theory’s revolutionary perspective may overlook practical reforms and incremental
changes possible within legal systems.
Jürgen Habermas – Concept of Modern State and Law

Introduction:

Jürgen Habermas, a contemporary German philosopher and sociologist, advanced sociological

jurisprudence by analyzing law and the modern state through the lens of communicative action and
democracy. Unlike earlier thinkers who emphasized law’s coercive or economic functions, Habermas
focuses on law as a medium for social integration, legitimacy, and rational consensus in complex,
pluralistic societies. He bridges law, politics, and society by highlighting the interplay between
systemic administration and lifeworld communication.

The Modern State: System and Lifeworld

Habermas’s theory differentiates between two interconnected spheres in modern societies:

• System: Comprises economic markets and bureaucratic state administration. It operates

through money and power, using formal mechanisms for coordination.

• Lifeworld: Refers to the social and cultural realm of everyday interactions, shared meanings,
and communicative practices.

Law as a Medium of Legitimation through Communicative Rationality

Habermas asserts that law derives its legitimacy not merely from coercion or formal rules but
through communicative rationality—the rational discourse between free, equal participants aimed at
reaching mutual understanding.

• Deliberative Democracy: Law gains normative force when laws are created through
democratic deliberation, where all affected can participate in open, inclusive discourse.

• Discourse Ethics: The validity of legal norms depends on their acceptance through free and
reasoned discussion, rather than imposed authority.

• Legitimacy and Social Integration: Law must be perceived as legitimate by the public to
achieve social integration and voluntary compliance, reinforcing social cohesion.

Law, Rights, and Social Integration

For Habermas, law plays a crucial role in safeguarding individual rights and ensuring social
integration.

• Rights Protection: Democratic law protects rights by institutionalizing norms that emerge
from public deliberation.

• Preventing Domination: Law acts as a barrier against domination by political elites or

economic powers by grounding authority in participatory legitimacy.

• Social Cohesion: Through communicative processes, law promotes mutual understanding

and cooperation among diverse social groups.

• Preventing Colonization: Law protects the lifeworld from being overwhelmed by the systemic
imperatives of bureaucratic administration and capitalist markets.
Criticisms:

• Critics argue that Habermas overestimates the possibility of consensus, ignoring power
imbalances and exclusion in real-world deliberations.

• The model may be idealistic in assuming rational dialogue is always possible in pluralistic,
conflict-ridden societies.

• Implementation of deliberative democracy and communicative rationality is challenging in

practice, especially in large, diverse modern states.

AGREEMENT ON SUBSIDIES AND COUNTERVAILING MEASURES

Introduction:

The Agreement on Subsidies and Countervailing Measures (ASCM), a critical WTO treaty, regulates
the use of subsidies and permits countries to counteract the effects of subsidized imports through
countervailing duties. From a sociological perspective, the ASCM is not merely a legal instrument but
a reflection of the global social, economic, and power dynamics embedded within the international
trade order. Sociological jurisprudence analyses the function of law in structuring economic
behaviour, maintaining systemic balance, and reinforcing global hierarchies.

1. ASCM as a Normative Framework in a Global Legal System

From the sociological lens, the ASCM acts as a tool of global governance, shaping the behaviour of
states and producers through norms of fairness, competition, and transparency. It does not only
penalize unfair trade practices but standardizes global economic conduct, much like domestic law
structures social behaviour.

• Law as Social Regulation: Just as law in society regulates interpersonal conduct, the ASCM
governs inter-state economic relations by deterring harmful subsidies.

• Global Institutionalization: The ASCM institutionalizes expectations of fair trade and

cooperation among WTO members, stabilizing the global trade order.

2. Subsidies, Inequality, and Structural Power

A sociological reading reveals that the ASCM is deeply implicated in the asymmetrical distribution of
global economic power, particularly between developed and developing countries.

• Power and Legal Norms: The legal definition of "prohibited" and "actionable" subsidies often
reflects the interests of developed nations with strong lobbying power within the WTO.

• Developmental Impact: Many developing nations rely on subsidies to build strategic sectors
(agriculture, manufacturing). The ASCM may limit their policy space, reinforcing dependency
on global North markets.

• Social Stratification on a Global Scale: Sociologically, the ASCM can be seen to entrench
structural inequalities by privileging capital-intensive economies and penalizing
developmental subsidies under the guise of neutrality.
3. Legitimacy and the Rule of Law in International Trade

For sociologists like Jürgen Habermas, legal legitimacy arises from participation, communication, and
procedural fairness. Applied to the ASCM:

• Procedural Legitimacy? The Dispute Settlement Body (DSB) of the WTO enforces the ASCM,
but access to it often favours economically stronger states with legal capacity to litigate,
limiting participatory parity.

• Voice and Inclusion: Many states, especially LDCs, lack the resources to challenge subsidies
or defend their own. This raises sociological concerns about representation, justice, and
voice in global legal processes.

4. Countervailing Measures as Social Control Mechanisms

Countervailing duties are state-imposed penalties against subsidized imports that harm domestic
industries. From a sociological standpoint:

• Instrument of Social Control: These measures are legal tools to protect domestic labour,
industries, and economies, akin to how criminal law protects societal norms.

• Public Legitimacy: Sociologically, their legitimacy depends on public perception—whether

countervailing duties are seen as protecting jobs and fairness, or merely fuelling trade
tensions.

5. Functionalism and Systems Theory (Luhmann’s View)

Using Niklas Luhmann’s systems theory, law is an autopoietic system functioning independently yet
responsive to other subsystems like economy and politics. Applied to ASCM:

• The ASCM represents law’s function in the self-regulation of the international economic
system.

• It codifies economic expectations, reducing uncertainty in global trade and allowing

capitalism to function predictably across borders.

6. Global Legal Culture and Compliance

Sociologists examine how legal norms gain traction in global legal culture. The ASCM, though
binding, relies on normative acceptance and institutional trust for compliance.

• Internalization of Norms: Countries follow ASCM rules not just from coercion but to maintain
credibility in the global economic system.

• Social Pressure and Reputation: The WTO’s legal regime exerts pressure through naming and
shaming, similar to informal social controls in domestic law.
 ANTHROPOLOGICAL/HISTORICAL JURISPRUDENCE

Introduction:

Anthropological and Historical Jurisprudence represents a foundational school of legal thought that
investigates the evolution of law in relation to societal customs, traditions, and institutions. Rather
than viewing law as an abstract or purely rational construct, this school sees law as a product of
culture and historical development. It combines the historical analysis of legal systems with
anthropological insights into primitive societies, offering a broader and more organic understanding
of how legal norms originate and transform over time.

I. Historical Jurisprudence: Key Thinkers and Concepts

Historical jurisprudence emerged in 19th-century Europe in response to the growing trend of legal
codification and rationalism, particularly during the Napoleonic era. The key thinkers—Friedrich Carl
von Savigny and Sir Henry Maine—emphasized the historical continuity of legal systems and the role
of social customs in shaping law.

1. Friedrich Carl von Savigny – The Volksgeist and Organic Growth of Law

• Volksgeist (Spirit of the People): Savigny’s most influential idea was that law is the
manifestation of the common consciousness or spirit of a people. According to him, law is
not something created artificially by legislation or reason, but something that grows
organically from the customs, beliefs, and practices of a particular society.

• Opposition to Codification: Savigny argued against the codification of German law in the
early 19th century, stating that the German people were not yet culturally unified. For him,
codification detached law from the living traditions and historical continuity of the people.

• Custom and Jurisprudence: He placed custom as the primary source of law, followed by
juristic interpretation. Legislation, in his view, played only a secondary role.

• Law as a Product of Historical Development: Savigny believed that all legal systems undergo
an evolutionary process, developing naturally like language, morals, and religion.

2. Sir Henry Maine – From Status to Contract

Sir Henry Maine was an English jurist and comparative legal historian who explored the evolution of
law through a cross-cultural lens, especially in ancient and Eastern societies.

• Key Work: Ancient Law (1861), where he studied early Roman and Hindu law to derive a
universal pattern of legal evolution.

• Theory of Legal Progression:

o He famously asserted that the movement of societies is “from status to contract.”

o In primitive societies, individuals were bound by status—family ties, caste, kinship,

and obligations rooted in birth.

o As societies advanced, legal relations began to reflect individual autonomy, where

contracts and consensual agreements became dominant.

Example: In tribal societies, inheritance, marriage, and economic roles are often dictated by
kinship; in modern societies, these are governed by legal contracts and individual choice.
 • Comparative Methodology: Maine’s approach involved the comparison of legal systems
across time and cultures, laying the groundwork for modern comparative law.

II. Anthropological Jurisprudence: Primitive Law and Cultural Context

While historical jurisprudence focused on the legal systems of early civilizations, anthropological
jurisprudence developed from ethnographic studies of tribal, non-Western, or stateless societies,
especially in the late 19th and 20th centuries.

1. Law in Primitive Societies

• Anthropological jurisprudence investigates how order and dispute resolution exist even in
societies without formal institutions such as courts, police, or legislatures.

• Customary Law: It emphasizes customary norms as law—binding rules of behavior

maintained by the community through ritual, social pressure, and informal enforcement.

2. Key Anthropological Thinkers:

• Lewis Henry Morgan and E.B. Tylor: Among the first to apply evolutionary models to social
institutions like law.

• Bronisław Malinowski:

o In his fieldwork among the Trobriand Islanders, Malinowski found that law operated
through kinship networks, taboos, and reciprocity.

o He argued that even in the absence of formal enforcement mechanisms, societal

cohesion and obligation ensured the functioning of law.

o Law was embedded in everyday life, customs, and belief systems.

Example: Rules concerning marriage, land use, or restitution in tribal societies may not be
codified, but they are enforced by elders or group consensus and carry the weight of law.

3. Key Features of Anthropological Jurisprudence:

• Law as Culture-Bound: Law reflects the cultural values and worldview of a society. What is
law in one society may not be recognized as law in another.

• Pluralism: Law is not monolithic. Multiple legal systems (customary, religious, colonial, state)
can co-exist within the same society.

• Functionalism: Law serves specific functions such as dispute resolution, social control, and
group cohesion.

• Pre-Legal Societies: Anthropologists reject the notion that societies without formal law are
"lawless." Instead, they show that law exists wherever there is order and conflict resolution.

III. Comparative and Critical Insights

• Integration of Anthropology and Law: This school provides critical insight into non-Western
legal traditions and helps in designing pluralistic legal frameworks in post-colonial societies.

• Challenges Western Legal Universality: It challenges the idea that Western-style codified law
is universally superior or applicable.
 • Colonial Context: The study of customary law gained importance during colonial rule, where
European powers tried to codify or manipulate local legal systems.

Criticisms:

• Eurocentrism and Evolutionism: The idea that all societies must evolve from “primitive” to
“modern” forms of law has been criticized as ethnocentric and colonial.

• Lack of Normative Evaluation: By focusing on description, anthropological jurisprudence

sometimes avoids questions of justice or fairness.

• Custom Can Oppress: Relying on custom may legitimize gender discrimination, caste
hierarchies, or rigid social roles, especially in traditional societies.

• Static Interpretation of Custom: Law is dynamic, but excessive emphasis on "frozen customs"
can hinder reform.

FEMENIST JURISPRUDENCE

Abstract

India is a country where women are having high status in theory but are vulnerable in practice.
Feminist jurisprudence is philosophy to understand the women issues. There are various theories to
understand the feminist perspective about law and society. Feminist jurisprudence is understanding
women right which is being inculcated in Indian law and Constitution of India. In India there are
various laws to protect and empower them. Law plays monumental role to protect their rights, the
purpose of the paper to understand the feminist jurisprudence and evolution of law related to
women.

Introduction

India venerates women as goddess and mothers. Rivers and nations are names as women. The low
status of women is due to cultural, educational, religious, economic, and social reasons. Women
have become second class citizens. Women are important part of the society. They constitute one
half population of the world. “The voice of working women” a document of UNO(1982) make a
significant statically statement “women make up 50% of world’s population, comprise 33.3% of the
official labor force, perform nearly 66.6% of all working hours, receive 10% of world’s income but
own less than 1% of world’s property.” Feminist Jurisprudence is a philosophy of law based on the
political, economic and social equality of the sexes. It is an emerging burgeoning school of legal
thoughts that encompasses so many issues as well as theories of legal issues. Feminist jurisprudence
evaluates and critiques the law by examining the relationship between gender, sexuality, power,
individual rights and judicial system as a whole. Feminist jurisprudence is a collection of movements
and ideologies aimed at establishing and defending equal social economic, political, legal rights for
women. A feminist is a supporter of equal rights for women. Feminist theory is the result of feminist
movements, aims to understand the nature of gender inequality by examining women’s social roles
and live experience. Feminist jurist campaign for women rights such as: contract law, law of property,
voting right also promoting bodily integrity, autonomy and reproductive rights of women. The history
of Western feminist engagement with law is conventionally traced to the demand for equal legal
rights by suffragists. Women demanded an eventually gained that non-oppression or non-
discrimination for women involved recognition of the differences between man and women. Others
insisted that man and women should be treated the same1. Different feminist has given the different
view on this matter.

Historical background of feminist jurisprudence

Feminism is not a very old concept; it emerges in late nineties and early twenties. The persons
concerned about the women suppression and discrimination initiated the feminist jurisprudence.
John Stuart Mill was the person who advocates the women voting right in the west. In 1889, in Paris
on the platform of the founding of Congress of the Second International, the question of equal rights
of men and women was raised by Clara Zetkin2. This was the first time that the question of equal
rights for women raised from any International platform. The anthropologist Margaret Mead
observes the complexity of women’s history. At any given moment, the experience of women grows
out of a complicated web of cultural values, specific social and economic circumstances, and the
response of individual women to both. The family was generally perceived as hierarchy with the man
as father and head, and women and children as his inferior. Feminist jurisprudence is a development
from the women’s movement which recognized in the late 1960’s and early 1970’s with the writing of
Simon De Beauvoir, Betty Freidan, Germaine Greer, Kate Millet, Eva Figes and others. To cash the
development of feminist jurisprudence, on the heels of feminist sociology, feminist philosophy and
feminist history was a natural “extension of the engagement of female reflection and speech to one
more area of discourse”. There was a large proliferation in the 1970 and 1980 in women studies
courses.

Theories of feminism

Feminism is a controversial concept today. The best way of looking at feminist jurisprudence is to see
it as the ideology of women as oppressed section, in struggle against their oppression just as
socialism is the ideology of the working class organized in class struggle. A fundamental goal of
feminist theory is to analyze gender relations. How gender relations are constituted and experienced
and how it is equally important.4 The study of feminism is to know the situation of women and the
analysis of male domination. By studying gender it is hope to gain a critical distance on existing
gender arrangement5. Gender is the social phenomena to construct and to equally regulate
societies. It is reflection of the male-stream masquerading as the norm for the division of labor and
concomitant enjoyment of benefits. This social taxonomy is saturated with negative reciprocity;
equality based on such relationships is illusive.

There is no single feminist theory like any complex legal philosophy. Feminist jurisprudence has
generated a rich variety of idea on the situation of women. One of the important concerns amongst
the western feminist is to understand the cause of women’s subordination. It is known that women
are not biologically inferior and there lower status to man is man-made. Generally the four main
theories of feminism in the world are:

Liberal feminism

The inferior position of women, according to the supporter of this theory is due to cultural and
psychological factors. The link between liberal philosophy and women’s equality was first made in
1792 by Marry Wollstone Craft. Women are the first and foremost human being not sexual beings. In
this respect women are exactly like man, whose primary and no one claims to be male but only to be
human being8. According to liberal Feminist Jurist improvement in social customs, institutions, laws
and attitudes will transform society as a whole and women will get equal status.
Marxist feminism

According to Marx and Engel, capitalism is the root cause for women’s oppression. Capitalism
transformed all human relations into marketable commodities. Thus human labor was seen as mean
of production and human beings were seen as instruments. Women in this system become
instruments of production and reproduction. The concept of private property brought a basic change
in the family. It assured the supremacy of the man in the house the women’s house work lost its
significance compared with the men’s work in obtaining a livelihood. Marxist feminism believes that
social existence determines consciousness. “Women work is never done” is the aphorism it describes
the nature of women work. So Marxist feminist jurist believes that to understand why women are
oppressed, one has to analyze the links between women works status and women self-image.
According to the Marxist jurist the domestic slavery is the central Marxist theory on women's
oppression. They consider that the source of women's oppression lies in the role of the family as a
reproducer of labor power for capitalism and also unequal role of women inside the family. So
understanding the role of the family is key to understanding women's position as second class
citizenship in society. Women relegated to the role of sex objects, subject to the approval or
disapproval of men. They are still today fighting for the right to control their own bodies and
reproductive lives. It began with the family, but the repercussions extend far beyond life inside the
family.

Radical feminism

This phase of movement occurred 1969-1970, which had important link with the Liberal movement.
Sexual oppression and sexual division of labor relating to women were over looked in Liberal
movement. It was realized that root of subordination lies in the biological family. The radical feminist
jurist campaigned for removal of all sex discrimination and man was consider as foe and
subordination of women was taken as bio psychological supremacy of man over women. Natural
differences lead directly to the first division of labor based on child birth and motherhood which
assigned women to a dependent and powerless role and will continue to do so long as they continue
to been children.

Socialist feminism

According to socialist feminism both gender and class are responsible for women’s inferior position.
One of the socialist feminists, Juliet Mitchell, while analyzing the position of women found, though
family is fundamental to women’s oppression there are some separate structure. The emergence of
concept of private property, confining women to production of children and persistence of gender
inequalities caused a great hurdle in women’s socialist movement. Socialist feminists combine the
class and sex as women’s oppression.

Men control women’s productivity both within the house hold and outside in paid work. Within the
house hold women provide all kinds of free service to their children, husband, and other members of
family, throughout their lives. Men also control women’s reproductive power. In many societies
women do not have the freedom to decide how many children they want, when to have them,
whether they can use contraception or terminate a pregnancy etc. Apart from individual male
control, male dominated institutions like the Church or State (i.e., religion and politics) also lay down
rules regarding women’s reproductive capacity.
Legal rights of woman in India

Social condition of women was not equal in ancient India. There are various provisions for the
betterment of women and for her equal rights in Constitution of India which came into effect after its
commencement on 26th January, 1950. There are special provisions for women under Article 53 and
social justice is one of the basic of Constitution of India. The following are the some initiatives
undertaken to protect the rights of women.

Live in relationship

Living relation is recent form of family where two adults decide to live together under a roof without
a marriage. In January 2008, Apex court validated long term live in relationship as marriage. Children
born from such relationship will no longer be called illegitimate. Justice Malimath Committee (2003)
stated that relationship for a reasonable time should enjoy the legal rights of wife. In Mahabat Ali v.
Mahammad Ibrahim Khan, The Court said that law presumes in favor of marriage against
concubinage, when a man and women have cohabitated continuously for a number of years. There is
requirement of evidence of long cohabitation for number of years. But the number of years has not
been specified by law. In Badri Prasad v. Deputy Director Consolidation the Apex Court recognized a
live in relationship as a valid marriage.

Right to dignity

To live with dignity is the basic right of human being. Women are vulnerable in nature and are more
sensitive and delicate. Normally this right is not enjoyed by the women and due to patriarchal
culture women has to suffer various kind of humiliation in society. In Surjit Singh v. Kanwaljit Kaur
Punjab and Haryana High Court held that medical examination of a women for her virginity would
certainly violet her right to privacy. Virginity test is obviously a violation of dignity of women. In
Gautam Kundu v. State of West Bengal the Apex Court held that permitting blood test to prove or
disprove paternity for maintenance is embarrassment and humility for women.

Sexual offences

Sexual offences can be defined as every act of a male being whether on the physical, mental or
intellectual plane of consciousness which leads to infelicity pain or suppression of the will of another
being is an offense. Sexual offences are covered under Indecent Representation of Women
(Prohibition) Act, 1986, Indian Panel Code 1960, Suppression of Immoral Trafficking of women and
girls Act, 1956, Dowry Prohibition Act, 1961 and The Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013.

Indecent representation of women

Women are being represented indecently in media. The terms obscene, indecent or vulgar are
difficult to define. It is merely related to the moral values of society. Provisions related to obscenity
have been included in section 292 to 294 of Indian Penal code. In the landmark judgement Ranjit D.
Udeshi v.State of Maharashtra. The Supreme Court accepted the test laid down in English case R.V.
Hicklin to judge the obscenity of a matter. The obscene matter in a book must be consider by itself
and separately to find out whether it is so gross and its obscenity so decided that it is likely to
deprive corrupt those whose mind are open to influence this sort and into whose hand the book is
likely to fall.
Eve teasing

Eve teasing is used to refer to sexual harassment faced by women in public places. Making or passing
unwelcome sexual jokes showing obscene, gestures, winking, whistling, staring etc. earlier eve
teasing was treated as born right of male. Sometimes responsible and respected persons of society
try to justify such activity saying that these are the normal mistakes of youngsters. It is done intensity
to hurt women physically, emotionally, physiologically, socially, spiritually or to gain attention of that
woman. Men use to do all teasing due servitude position of women in society. In 2013 parliament
has passed an enactment The Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013. It is a significant step forward for the women’s movement in the struggle
against gender-based oppression. The enactment represented a victory in the face of the dilly-
dallying, diversionary tactics and stiff opposition from entrenched interests. The legislation, however,
suffers from a range of problems – from provision of punishment for complaints which are found to
be false, to the exclusion of “project workers” such as ICDS, ASHA, and Midday meal workers, who
increasingly account for a large section of the female workforce, from the ambit of the law. A very
serious lacuna, again, is that the law contains no provision whatsoever for elected representation
within sexual harassment committees.

Dowry deaths

Dowry is the oldest custom in society which is prevalent in every part of country. Dowry death is
common in Indian society. Presently our society is developing its technique and scientific
temperament but women are being burnt for the want of dowry in India.

Dowry is define in Section 2 of the Dowry Prohibition Act, 1961 and further clarified by Hon’bl
Supreme Court in Ashok Kumar v. State of Haryana18 as any property or valuable security given or
agreed to be given either directly or indirectly by one party to another during or after marriage.

In Satbir Singh v. State of Punjab19 the Apex Court held that the property or valuable property given
or agreed to be given in connection with the marriage is considered as dowry. But customary
payments in connection with the birth of child or other ceremonies are not involved within ambit of
dowry. Section 3 of the Dowry Prohibition Act 1961 ensures penalty for the giving or taking dowry.

Succession right

Hindu Succession Act 1956 provide right to inherit ancestral property by women. The Hindu
Succession (Amendment) Act 2005 has brought radical change in the present Act. Daughter whether
married or unmarried has been provided the right of succession in the joint Hindu family property; if
the joint Hindu family is governed by the Mitakshara Law. Daughters are also liable like Son to bear
the liability of the properties.

Stri means women and stridhan means property of women. The Hindu sages define the stridhan as
property of women by different means such as gift by parents, any stranger and naputal gift. Now
male and female are treated equal without any distinction. According to the section 14 of Indian
Succession Act, 1956 property of a woman is her absolute property. Section 29 A provide equal right
to daughters in coparcenary property i.e., succession by survival ship.

Other offences against women

Indian Panel Code contains various sections to protect women from violation their rights such as
Section 354 provided that assault or criminal force to women with intent to outrage her modesty
shall be punished for a term, which shall not be less than one year by which may extend to five years
shall also be liable for fine.

Section 354A of Indian Penal Code talk about the sexual harassment when a man commit
unwelcome physical contact and advances or a demand or request for sexual favor showing
pornography etc. punishment for sexual harassment for a term which may be extend to three years
or with fine or both. Section 354C of Indian Penal Code explains voyeurism which means if any man
watches or captures the image of women engaged in a private act in any circumstances where she
would usually have being observed shall be punished with not less than one year, which may extend
up to three years. For second time convict will be punished not less than three years which may
extend to seven years.

Section 354D of Indian Penal Code talk about stalking. Stalking is defined as any man who follows a
women and contacts, or attempt to contact such women to force her repeatedly to interact despite a
clear indication of disinterest of such women. Monitor the women through internet, email or other
communication commits the offence of stalking. A person who commits the offense of stalking shall
be punished on first conviction with imprisonment for a term which may extend to three years and
shall also be liable for fine. On the second conviction he may be punished with imprisonment of five
years and also is liable for fine.

Crime of rape

Rape is most heinous crime against women. It destroys the psychological and social being of women.
Victim also leads traumatic life. The victims suffer with mental agony, trauma and imprinted scars on
her mind which never heals in her life. Attitude of society towards rape victim is worst. Rape victim
are being treated as offender rather than victim. Women of all age groups right from childhood to
old age are victimised for rape.

Section 376 of Indian Penal Code provides punishment for rape. In Delhi Domestic Working Women’s
forum v. Union of India the Supreme Court analyzed the defect of existing systems, it said that firstly
complaints are handled roughly and are not given due attention as is warranted women more them
often humiliation by the police. Rape trials become traumatic experience and even worse rape itself.
In Bodhi Sathwa Gautam v. Subhra Chakrabarty, the Supreme Court awarded an interim
compensation of Rs. 1000 per month to the victim of rape until her charges of rape are decided by
the trial court.

POST MODERNISM

Introduction:

Postmodern jurisprudence emerged in the late 20th century as a reaction to the rigidity and
universalism of modernist legal theories such as positivism, liberalism, and even parts of natural law.
It questions the objectivity, neutrality, and universality of law and argues that legal knowledge is
contingent, fragmented, and constructed through language and power relations. Rooted in post-
structuralist thought, it draws heavily from philosophers like Michel Foucault, Jacques Derrida, and
Jean-François Lyotard.

1. Core Premises of Postmodern Legal Theory:

Postmodernism rejects the Enlightenment ideal of a singular, rational truth. Applied to law, it implies
that:
 • Law is not fixed or objective; it is a narrative shaped by culture, language, and power.

• There is no universal human nature or single definition of justice.

• Legal texts have multiple interpretations, none of which can be deemed final or absolute.

• Meta-narratives like justice, fairness, and legal certainty are viewed with suspicion.

2. Key Themes in Postmodern Jurisprudence:

(A) Deconstruction (Jacques Derrida):

• Deconstruction is a method of unpacking legal texts to expose internal contradictions and

hidden assumptions.

• For example, concepts like “justice” and “rights” are inherently unstable and defined in
opposition to other concepts.

• Derrida argues that the “meaning” of law is always deferred, never fully present or fixed.

(B) Power-Knowledge (Michel Foucault):

• Foucault sees law not as a neutral arbiter, but as an instrument of power.

• He focuses on how law disciplines individuals and constructs identities (e.g., criminal, insane,
deviant).

• Legal systems do not just punish; they create norms of behavior and enforce conformity
through institutions like prisons, hospitals, and schools.

• Foucault's idea of the “panopticon” shows how surveillance becomes a method of control in
modern societies.

(C) Incredulity Towards Meta-Narratives (Lyotard):

• Postmodernists reject grand theories such as Marxism, liberalism, or natural law, which claim
to explain everything.

• Lyotard emphasizes “language games”, suggesting that law is just one discourse among
many.

• Truth in law is contextual and discursive, not universal.

3. Critique of Modern Legal Thought:

Postmodernists challenge the foundational ideas of modern legal systems, including:

• Legal Formalism: Treating law as a closed logical system is naive.

• Liberal Legalism: Claims to fairness and equality are exposed as tools that often preserve
existing power hierarchies.

• Objectivity: Legal “objectivity” is often a mask for dominant ideologies, especially those
related to gender, race, and class.
4. Influence on Legal Practice and Theory:

While largely theoretical, postmodern jurisprudence has influenced several critical legal movements:

• Critical Legal Studies (CLS): Argues that law is political and indeterminate.

• Feminist Jurisprudence: Challenges male-centered legal reasoning using postmodern tools.

• Critical Race Theory: Examines how law sustains racial hierarchies.

• Queer Theory: Uses postmodern insights to critique how law enforces binary gender norms
and heteronormativity.

It also encourages a more reflective, inclusive, and pluralistic approach to interpreting statutes,
constitutions, and legal decisions.

Criticisms of Postmodern Jurisprudence:

• Lack of Constructive Solutions: Critics argue that it deconstructs without offering concrete
reforms.

• Relativism: If all interpretations are valid, how can we justify legal judgments?

• Too Theoretical: Its language is often abstract, making it hard to apply to real-world legal
problems.

• Undermines Legal Certainty: Excessive skepticism may erode the predictability and stability
essential to law.

WHY DO LEGAL SYSTEMS SUFFER?

Introduction:

Legal systems are essential institutions meant to ensure justice, order, and social cohesion. However,
despite their intended purpose, many legal systems around the world suffer from inefficiency,
injustice, corruption, and erosion of legitimacy. These problems arise due to a complex interplay of
social, political, economic, and structural factors. Jurists from different schools—sociological, critical,
feminist, and postmodern—have analyzed these shortcomings, each offering distinct insights.

1. Disconnection Between Law and Society (Sociological Jurisprudence):

Sociological jurists like Roscoe Pound and Eugene Ehrlich argue that legal systems suffer when they
fail to reflect the real needs and living norms of the people they govern.

• “Law in books” vs. “law in action”: Legal codes often do not align with how justice is actually
practiced.

• Living Law: Ehrlich emphasizes that customs, social behavior, and informal norms govern
society more effectively than written statutes.

• When courts and legislators ignore this “living law,” the system becomes rigid, irrelevant, and
mistrusted.
2. Inequality and Power Dynamics (Marxist and Critical Legal Studies):

Marxist jurisprudence views law as a tool of the ruling class used to maintain capitalist structures.

• Legal systems perpetuate economic inequality by protecting private property, elite interests,
and capital.

• According to Karl Marx, law appears neutral but is ideologically biased—a form of legal
fetishism where law seems independent but actually hides exploitation.

• Critical Legal Studies (CLS) argue that law is not objective but shaped by politics and ideology,
thereby reinforcing injustice.

3. Bureaucratization and Dehumanization (Weberian Perspective):

Max Weber identified how legal systems become overly bureaucratic and formalistic in capitalist
societies.

• Legal systems prioritize procedural correctness over substantive justice.

• The rise of rational-legal authority creates predictability, but at the cost of personalized
justice.

• People begin to see the law as cold, distant, and mechanical, which erodes faith in its moral
value.

4. Marginalization and Exclusion (Feminist and Critical Race Theory):

Feminist jurists argue that legal systems have been historically male-centric, ignoring the experiences
and voices of women.

• Laws fail to recognize gendered violence, labor, and care work.

• Similarly, Critical Race Theory highlights how legal systems in many countries reinforce racial
hierarchies and systemic discrimination.

• When entire communities feel excluded or oppressed by the law, it suffers from a crisis of
legitimacy.

5. Postmodern Critique – Loss of Meaning and Legitimacy:

Postmodern theorists like Michel Foucault and Jacques Derrida suggest that legal systems suffer
because they claim neutrality and objectivity, but are inherently shaped by power.

• Deconstruction reveals the contradictions in legal reasoning.

• People no longer believe in “grand narratives” like justice or fairness as they see law being
used for political or corporate gain.

• This results in a "disenchantment" with the legal system.

6. Practical Factors:

Besides theory, practical issues also cause legal systems to suffer:

• Delays and backlogs in courts.

• Corruption within police, judiciary, or administration.

 • Poor legal literacy among the public.

• Inaccessible legal aid and high litigation costs.

SAVIGNY, SIR HENRY MAINE, MAX GLUCKMAN

Friedrich Carl von Savigny – Historical School and the Volksgeist

Introduction:

Friedrich Carl von Savigny (1779–1861) was a German jurist and legal historian who founded the
Historical School of Jurisprudence in reaction to the rapid codification and legal positivism of his
time. He believed that law is not a product of arbitrary will or legislation, but a historical and cultural
phenomenon, deeply rooted in the traditions, language, values, and collective consciousness of a
particular society. His central concept, Volksgeist, meaning “the spirit of the people,” shaped his
understanding of how law evolves over time.

Core Theory – The Concept of Volksgeist (Spirit of the People):

Savigny’s primary belief was that law originates and develops from the unique spirit of a people, not
from legislation or state decrees. He argued that legal systems must reflect the organic unity of a
nation’s cultural and historical experience.

• Volksgeist refers to the collective national consciousness, comprising shared customs, moral
values, beliefs, and social institutions.

• Law is not created, but rather discovered—it emerges from the people’s way of life, much
like language and art.

• Any attempt to impose foreign or artificial laws disrupts the natural development of law and
causes disconnection between law and society.

Thus, according to Savigny, true legal development must be historical and evolutionary, guided by
custom and cultural context.

Key Principles of Savigny’s Historical Jurisprudence:

1. Law Evolves Like Language:

• Savigny drew a powerful analogy between law and language: both are spontaneous, organic,
and unconscious creations of the people.

• Just as a language cannot be imposed but must evolve through usage and shared
understanding, law too must grow gradually from communal experience.

• He criticized rationalist and codified legal systems (like Napoleon’s Civil Code) for being
abstract, artificial, and disconnected from national identity.

2. Custom as the Primary Source of Law:

• For Savigny, custom is the oldest and most legitimate source of law.

• Customs reflect the real will of the people, as opposed to enacted statutes which may be
arbitrary or political.
 • Judges and jurists do not invent laws; they simply recognize and declare existing social norms
that are already embedded in the cultural fabric.

3. Opposition to Codification and Universal Law:

• Savigny famously opposed the early codification of German law, especially the efforts led by
Thibaut, who proposed a unified civil code for Germany.

• He argued that codification should only occur when a nation’s legal system has reached full
maturity, meaning it must be an organic synthesis of its customs and jurisprudence, not an
imported framework.

• He rejected universal natural law theories that sought to impose common legal rules across
different societies, asserting instead that each nation has its own legal identity shaped by its
own history.

Savigny’s Methodology and Role of Jurists:

• Savigny gave a central role to jurists and scholars, viewing them as the custodians of the
Volksgeist.

• Their task was not to create law but to study historical legal sources (customs, judicial
decisions, Roman law) and systematize them into coherent doctrines.

• This belief laid the groundwork for legal science as a disciplined, historical, and interpretative
process.

Influence and Contribution to Jurisprudence:

1. Foundation of the Historical School:

o Savigny is considered the father of the German Historical School of Law.

o This school emphasized legal tradition, historical continuity, and national spirit, in
contrast to abstract, universalist legal theories.

2. Revival of Roman Law and Pandectics:

o Savigny played a key role in reviving the study of Roman law in Germany, especially
the Pandects (Digest of Justinian), which later influenced the German Civil Code
(BGB).

o He viewed Roman law as a historical and cultural inheritance of European legal

civilization.

3. Critique of Natural Law and Positivism:

o He challenged both natural law (which relies on reason or divine order) and
positivism (which relies solely on state legislation), offering a middle path based on
custom and historical evolution.

4. Impact on German Legal Development:

o His ideas delayed the codification of German law, but eventually influenced the
structure and methodology of the BGB (German Civil Code, 1900).
Criticisms of Savigny’s Theory:

• Conservatism: Critics argue that his insistence on tradition and custom may hinder legal
reform or progressive change.

• Nationalism: The Volksgeist theory may overemphasize national identity, leading to exclusion
or rigidity.

• Neglect of Individual Rights: By focusing on collective cultural values, his theory downplays
the importance of individual freedoms or justice.

• Underestimation of Legislation: In modern democratic states, law-making by elected

representatives is a key source of legitimacy, which Savigny underplayed.

Sir Henry Maine – Theory of Legal Evolution (From Status to Contract)

Introduction:

Sir Henry Maine (1822–1888), a British jurist and comparative historian, is best known for his
evolutionary theory of law. In his seminal work "Ancient Law" (1861), Maine explored how legal
systems evolved historically from status-based societies to contract-based societies. He is often seen
as a bridge between anthropological and historical jurisprudence, and his theory profoundly
influenced colonial legal thought and comparative law.

Core Theory – "From Status to Contract":

Maine’s central thesis was that society evolves from one in which an individual's rights and duties are
determined by status (birth, caste, family) to one in which they are defined by contract (individual
consent and agreement).

➤ In status-based societies:

• Law governs people based on kinship, clan membership, or caste.

• Rights and duties are inherited, not chosen.

• Example: In early Roman or Hindu law, a person’s legal position depended on their family or
group.

➤ In contract-based societies:

• Law treats individuals as autonomous agents capable of entering into voluntary agreements.

• Legal relationships are based on consent, equality, and individual will.

• Example: Modern legal systems where property rights, contracts, and partnerships are freely
entered into.

Key Aspects of Maine’s Legal Evolution:

1. Patriarchal Society:

o Early societies were organized around the patriarchal family, where the eldest male
(pater familias) exercised absolute control.
 o Legal authority was personal, familial, and absolute.

2. Growth of Law Through Fiction, Equity, and Legislation:

o Law evolves through three instruments:

▪ Fiction: Legal devices that adapt old laws to new circumstances without
changing the text (e.g., Roman adoption practices).

▪ Equity: Judicial innovations that introduce fairness and moral reasoning.

▪ Legislation: Finally, formal statutes codify the evolved practices.

3. Comparative Method:

o Maine used anthropological data and compared ancient legal systems (Roman,
Hindu, Germanic, etc.) to show universality in legal development.

o He argued that all societies follow a similar legal trajectory, though at different
speeds.

Contributions and Legacy:

• Maine is considered the founder of comparative jurisprudence.

• His "status to contract" theory is a foundational idea in understanding legal modernity and
individual rights.

• His work provided intellectual justification for the British colonial legal system, though often
criticized for Eurocentric bias.

Criticism of Maine’s Theory:

• Over-simplification: Not all societies follow the same linear path from status to contract.

• Eurocentrism: His model privileges Western legal evolution and marginalizes indigenous
systems.

• Neglect of Customary Law: He underestimated the continued importance of status-based

norms in modern societies (e.g., caste in India).

• Colonial Instrumentalization: His theories were used to justify British legal superiority in
colonies.

Max Gluckman – Law as Social Process and Conflict Resolution

Introduction:

Max Gluckman (1911–1975) was a South African-born British anthropologist and a leading figure of
the Manchester School of Anthropology. His jurisprudential contributions are rooted in legal
pluralism and conflict theory. Gluckman challenged Eurocentric models by examining how law
operated in non-Western societies, particularly African tribal communities, not as primitive, but as
highly complex systems for managing conflict and sustaining order.
Core Theory – Law as a Social Process:

Gluckman argued that law is not a fixed code, but a dynamic process of negotiation and dispute
resolution embedded in social, economic, and cultural contexts.

• He studied African customary law and found it to be highly sophisticated, challenging earlier
views that tribal societies lacked legal order.

• Law in these societies functions to resolve conflicts, reinforce social norms, and maintain
community cohesion, even where there is no centralised legal authority.

Key Concepts and Contributions:

1. Cross-Cutting Ties:

o Social groups are interconnected through overlapping roles and relationships (e.g.,
kinship, trade, politics).

o This web of ties helps prevent escalations of conflict, as individuals are socially
invested in multiple networks.

o Law helps mediate disputes to maintain these relationships rather than enforce
individual rights abstractly.

2. Rituals of Reconciliation:

o In many African societies, conflict resolution involves rituals, public hearings, and
symbolic gestures, not just punitive judgments.

o These practices restore balance rather than impose rigid sanctions, showing that law
can be restorative, not just retributive.

3. Law and Social Solidarity:

o Like Durkheim, Gluckman saw law as a mechanism of social integration.

o Disputes are part of normal social life, and their resolution strengthens group norms
and values.

4. Critique of Colonial Legal Systems:

o Gluckman was critical of colonial administrations that imposed Western legal

systems, undermining indigenous dispute resolution mechanisms.

o He called for recognition of legal pluralism, where multiple legal orders coexist and
interact.

Legacy and Significance:

• Gluckman is a pioneer of anthropological jurisprudence.

• He showed that law functions as a social glue, not merely a coercive tool.

• His work influenced restorative justice models, customary law recognition, and modern legal
anthropology.
 Criticism:

• Some critics argue that Gluckman romanticized traditional legal systems, overlooking
inequalities or gendered biases.

• His focus on cohesion may underplay the power dynamics and oppression within customary
laws.

• Still, he remains a central figure in the study of non-Western legal systems and conflict
resolution.

Comparative Summary Table:

Jurist Focus Area Central Theory Key Contribution

Savigny German historical law Law develops from Volksgeist Law grows organically with culture

Ancient & modern

Maine From Status to Contract Legal evolution tied to social change
law

Law ensures social Tribal laws are complex, not

Gluckman Tribal societies
integration primitive

UNIT – 4
RIGHTS AND DUTIES

WHAT IS RIGHT? THOERIES OF RIGHTS

INTRODUCTION:-

The development of society is credited to the constant evolution of law. When people come into
contact with each other, everyone has certain rights and duties obligated towards one another. A
right and duty are the pillars of law, and are hence consequently protected by it. Both these concepts
are intertwined. The concepts of legal rights and duties in Jurisprudence are elucidated below.

DEFINITION OF RIGHT The definition of legal rights have been propounded by several famous legal
philosophers. Some definitions are as follows –

John Austin – According to Austin, “A party has a right when another or others are bound or obliged
by law to do or forbear towards or in regard of him”. This definition was not widely accepted. It was
stated by John Stuart Mill that the act referred by Austin should be in the interest of the person who
can be said to have the right. He illustrated with an example by stating that when a prisoner is
sentenced to death, the jailer is bound to execute him. Does this mean that the convict has the right
to be hanged?

Rudolf Von Jhering – Jhering defined rights as “legally protected interests”. The law does not protect
all such interests. The interests of men conflict with one another and the law, is the rule of justice
and protects only certain interests.

John Salmond – Salmond defines right as an interest recognised and protected by a rule or justice.
He says, for an interest to be regarded as a legal right, it should obtain not merely legal protection
but also recognition. The law protects cruelty against animals, and to some interest the interest of
animals, but animals do not possess any legal rights.

Holland – Legal rights were defined by Holland as the “capacity residing in one man of controlling,
with the assent and assistance of the state the actions of others.” He followed Austin’s definition

Gray – He defined a legal right as “that power which a man has to make a person or persons do or
refrain from doing a certain act or certain acts, so far as the power arises from society imposing a
legal duty upon a person or persons.” He states that the “right is not the interest itself, it is the
means to enjoy the interest secured.”

Supreme Court of India – The Apex Court of India defined legal right in the case of State of Rajasthan
v. Union of India [AIR (1977) SC 1361] as: “In strict sense, legal rights are correlatives of legal duties
and are defined as interests whom the law protects by imposing corresponding duties on others. but
in a generic sense, the word ‘right’ is used to mean an immunity from the legal power of another,
immunity is exemption from the power of another in the same way as liberty is exemption from the
right of another, Immunity, in short, is no subjection.”

THEORIES OF LEGAL RIGHTS:-

There exist two main theories of legal rights – 1. The Will Theory and 2. The Interest Theory.

The Will Theory of Legal Rights – The Will Theory states that right is an inherent attribute of the
human will. It says that the purpose of the law is to allow the free expression of human will. This
theory was advocated by scholars like Hegel, Kant, Hume and so on. The subject matter is derived
from human will. Austin, Holland and Pollock define rights in terms of will. According to the famed
French Jurist, John Locke “the basis of the right is the will of the individual.” Puchta defined the legal
right a power over an object which by means of right can be subjected to the will of the person
enjoying the right. This theory has been widely accepted by the jurists in Germany. Despite its wide
acceptance, there were many scholars who disagreed with it. Some of the criticisms were from
Duguit who is opposed to the “will” theory. According to him the basis of law is the objective fact of
“social solidarity” and not the subjective will. The law is to protect only those acts or rights which
further “social solidarity”. He calls the theory of subjective right a a mere metaphysical abstraction.

The Interest Theory of Legal Rights - The Interest Theory was proposed by the German Jurist, Rudolf
von Jhering. Jhering defined rights as legally protected interest. Jhering does’ not emphasize on the
element of will in a legal right. He asserts that the basis of legal right is “interest” and “not will”. The
main object of law is protection of human interests and to avert conflict between their individual
interest. These interests are not created by the state, but they exist in the life of the community
itself. Salmond supported it but mentioned that enforceability is also an essential element. He says,
“Rights are concerned with interest, and indeed have been defined as interests protected by rules of
right, that is by moral or legal rights.”

Types of Rights:-

1. Natural Rights: Faith in natural rights is strongly expressed by several scholars. They hold that
people inherit several rights from nature. Before they came to live in society and state, they used to
live in a state of nature. In it, they enjoyed certain natural rights, like the right to life, right to liberty
and right to property. Natural rights are parts of human nature and reason. However, several other
scholars regard the concept of natural rights as imaginary. Rights are the products of social living.
These can be used only in a society. Rights have behind them the recognition of society as common
claims for development, and that is why the state protects these rights.
2. Moral Rights: Moral Rights are those rights which are based on human consciousness. They are
backed by moral force of human mind. These are based on human sense of goodness and justice.
These are not backed by the force of law. Sense of goodness and public opinion are the sanctions
behind moral rights. If any person violates any moral right, no legal action can be taken against him.
The state does not enforce these rights. Its courts do not recognize these rights. Moral Rights include
rules of good conduct, courtesy and of moral behaviour. These stands for moral perfection of the
people.

3.Legal Right:

ELEMENTS OF A LEGAL RIGHT

According to Sir John Salmond, each legal right has 5 essential elements –

1. The Person of Inherence – It is also known as the subject of right. A legal right is always vested in a
person who may be distinguished, as the owner of the right, the subject of it or the”person of
inherence”. Thus, there cannot be a legal right without a subject or a person who owns it. The
subject means the person in whom the right is vested or the holder of the right. There can be no
right without a subject. A right without a subject or a person who owns it is inconceivable. The
owner of the right, however, need not be certain or determinate. A right can be owned by the
society, at large, is indeterminate.

2. The Person of Incidence – A legal right operates against a person who is under the obligation to
obey or respect that right. He is the “person of incidence”. He is a person bound by the duty or the
subject of the duty.

3. Contents of the Right – The act or omission which is obligatory on the person bound in favour of
the person entitled. This is called the context or substance of right. It obliges a person to act or
forbear in favor of the person who is entitled to the right. It may also be known as the substance of
the right

4. Subject matter of Right – It is something to which the act or omission relates, that is the thing
over which a right is exercised. This may be called the object or subject-matter of the right. Some
writers, although argue that there are certain rights which have no objects.

5. Title of the Right – Salmond has given the fifth element also, that is, “title”. He says that “every
legal right has a title, that is to say, certain facts or events by reason of which the right has become
vested in its owner”.

KINDS OF LEGAL RIGHTS:-

Jurists have classified legal rights in the following ways –

Primary and Secondary Rights – Primary Rights are also called antecedent rights. It is vested within a
person by law or any other legal manner. These are the bundles of those rights which are the
privileges enjoyed by any person e.g. a person’s rights to Liberty. A violation or breach of the primary
rights, on the other hand, gives rise to a sanctioning right or remedial right. These are also known as
secondary rights. It is also called the remedial or adjectival rights. It is called so as it is a mode of legal
enforcement, for the loss of the primary right. It is subdivided into two kinds –

1. Right to exact and receive a pecuniary penalty from the defendant for loss of right and
2. Right to exact and receive damage for the injury caused to the defendant. It can be said that
primary rights exists independently whereas secondary rights have no separate existence and arise
only on violation of primary rights.

Public and private rights – Legal rights can be considered as both public and private. Public rights are
those vested with the state. The state enforces such right as a representative of the subjects in public
interest. A public right is possessed by every member of the public. For example, a right that is
concerned with the Government may be termed as a public right such as the right to vote. A private
right, on the other hand, is concerned with individuals, that is both the parties connected with it are
private persons. For example, owning a vehicle is a private right.

Positive and negative rights - A right is considered as positive or negative depending upon its
correlative duty. A positive right exists when the owner of it is entitled to something to be done by
the person of incidence. A person possessing a positive right can compel the person with the duty to
perform a positive act. For instance, a right to receive a compensation is a positive right. A negative
right corresponds to a negative duty and is a right that the person bound shall refrain from some act
which would operate to the prejudice of the entitled; in other words, a negative right, corresponds a
negative duty. It is a right of the person and the person bound shall restrain from doing some act
which will be prejudicial to the person entitled, such as when a person owns a land, it is the duty of
others to not trespass.

Every person is entitled to negative rights, but only a few get positive rights. The number of negative
rights is larger than the positive rights. The difference between these rights is illustrated below –

• A positive right corresponds to a positive duty whereas a negative right corresponds to a negative
duty.

• A positive right involves a positive act while a negative right involves some kind of forbearance or
not doing.

• A positive right entitles the owner of it to an alteration of the present position to his advantage
whereas a negative right seeks to maintain the present position of things.

• A positive right aims at some positive benefit but a negative right aims at not to be harmed.

• A positive right requires an active involvement of others but a negative right requires only positive
acquiescence of other persons.

• A positive right receives something more than what one already has whereas a negative right seeks
to retain what one already has.

• A positive right has a mediate and indirect relation to the object while a negative right is
immediately related to the object.

Vested and Contingent Rights - A vested right is a right in respect of which all events essential to vest
the right in the owner have happened; while a contingent right is one in respect of which only some
of the events necessary to vest the right have happened and the vesting can be complete only on the
happening or non-happening of a specified uncertain event. A vested right is not dependent upon
the fulfillment of any condition and a right becomes contingent only on the fulfillment of any
condition that may either be subsequent or precedent. Vested rights are transferable and
inheritable, this is not possible in contingent rights.
Perfect and Imperfect Rights – A perfect right is one which corresponds to a perfect duty and a
perfect duty is one which is not only recognized by the law but is enforced also. Perfect right means
the complete right, which signifies the right for which there is remedy also. This is explained by the
latin maxim “ubi jus ibi remedium” which means, where there is a right, there is a remedy. When in
case of the breach the right is not enforceable in a court of law then it is known as imperfect right.
This was stated in the case of Allen v. Waters & Co. [(1935) 1 KB 200]. The Directive Principles of the
State Policy that is present in the Indian Constitution is an example of imperfect rights.

Principal and Accessory Rights - A principal right is a primary right of a person vested in him by the
law of the land, or through any other legal method. An accessory right is a right which is connected
with the principal right. Principal rights exist independently while accessory rights are dependent
upon principal rights. They are beneficial on the principal right.

Legal and Equitable Rights - These type of legal rights cannot be found in India. It is found only in
England. Legal rights are those which were recognized by the Courts of Common Law in England and
Equitable rights are those which were solely recognized in the Court of Chancery. The underlying
principle in regards to equitable rights is that when there are two inconsistent equitable rights
claimed by different persons over the same thing, the first in time shall prevail. Although, where
there is a conflict between a legal right and an equitable right, the legal right shall take precedence
over equitable right even if it is subsequent to the equitable right in origin. The Privy Council in
Chatra Kumari Devi v. Mohan Bikram [(1931) 58 I.A 279] observed that the Indian law does not
recognized legal and equitable estates.

Proprietary and Personal Rights - Proprietary Rights are rights that are related to a person’s property
whilst personal rights relate to one’s body. Proprietary rights are transferable and personal rights are
not. If the breach of a right can be measured in terms of money or it has money value than it is said
that the person has proprietary right but if the breach of a right cannot be measured in money or it
has no money value that that right is known or called as personal right. A personal right is
uninheritable and dies with him.

Rights in Rem and Rights in Personam - These are also called real and personal rights. The modem
terms right “in rem” and right “in personam” have been generalized, somewhat inaccurately, from
Roman sources. A right in rem means a right available against the whole world whereas a right in
personam is a right that is available only against specific number of people.

Rights in re Propria and Rights in re Aliena - Rights in re Propria and Rights in re Aliena are a
classification of proprietary rights. Right in re Propria is the right in his own thing and if he has a right
in the property belonging to another than he is said to have a right in re Aliena. A right in re-Aliena
‘or encumbrance”’ has been defined by Salmond as one which limits or derogates from some more
general right belonging to some other person in respect of the same subject-matter. Salmond refers
to four classes of encumbrances, namely,

i) Leases – A lease is an encumbrance of property vested in one person by a right to the possession
and use of it vested in another person.

ii) Servitude – A servitude is a right to the limited use of a piece of land unaccompanied either by the
ownership or possession of it.

iii) Security – Security is an encumbrance vested in a creditor over the property of his debtor for the
purpose of securing the recovery of the debt.
iv) Trust – A trust is an encumbrance in which the ownership of property is limited by an equitable
obligation to deal with it for the benefit of someone else. The owner of the encumbered property is
called the trustee and the owner of the encumbrance is the beneficiary of tire trust.

ENFORCEMENT OF LEGAL RIGHTS

A legal right may be enforced through a Court of Law that has been established by the State. A legal
right is generally enforced by awarding damages in civil cases. IF damages don’t suffice, the object
itself may be restored. Specific performances may also be ordered by the court. Alternatively, the
court may grant an injunction for the enforcement of a legal right. The law of injunction is mentioned
in Specific Relief Act, 1963. It is a prohibitive writ which restrains a party from doing an act that
affects the plaintiff from enjoying his legal right.

DUTY

A duty is an obligatory act. It is something to do or abstain from doing in favour of another person. A
man has a duty towards any matter that he is legally obligated to. The term legal duty has been
defined in the following ways –

Keaton – A duty is an act of forbearance which is enforced by the state in respect of a right vested in
another and breach of which is a wrong.

Salmond – A duty is roughly speaking an act which one ought to do, an act the opposite of which
would be a wrong. A duty is of two kinds – 1. Moral and 2. Legal

Moral – An act that is the opposite of which is a moral or natural wrong. A duty may be moral but
not legal or legal but not moral, or both at once. For example, the act of not wasting paper is our
moral duty but not legal.

Legal – A legal duty is an act, the opposite of which is a legal wrong. It is an act recognized as a duty
by law and treated as such for the administration of justice. The law enforced the performance of a
legal duty, and punishes the disregard of its performance.

CLASSIFICATION OF DUTIES

Duties are classified under the following categories –

Primary and Secondary Duties – A primary duty is one which exists “per se” and is independent of
any other duty. A secondary duty, on the other hand, is one which has no independent existence of
other duties. A secondary duty is also called sanctioning or a remedial duty. Positive and Negative
Duties Duties may also be distinguished into positive and negative duties. Duties that are to be
performed by us at the behest of the law is known as a positive duty whilst an act that is prohibited
from being performed under the law is a negative duty.

Absolute and Relative Duties - In the words of Austin, rights and duties are interdependent. He has
classified duties into absolute and relative. Relative duties are those for which there is a
corresponding right and absolute duties are those that do not have any corresponding rights. He
mentions four kinds of absolute duties:-

Self-regarding duties such as a duty not to commit suicide or not to consume drugs or liquor, etc.

Duties towards indeterminate persons or public at large, e.g. a duty not to commit a nuisance. Duties
to those who are not human beings such as duty towards God or animals, birds, etc. A duty towards
the sovereign or the state.
RIGHTS AND DUTIES

It is an agreed fact that rights and duties are co-existent. Although there is exists a difference in
opinion whether there must be a right that correlates to the duty.

Salmond says that there can be no right without a corresponding duty and vice versa. According to
this, every duty must be a duty towards a person or some person, in whom a correlative right is
vested and conversely every right must be a right against some persons upon whom, a correlative
duty is imposed. Every right and duty has a bond of legal obligation. Austin has stated that rights are
interdependent, not correlative, contrary to Salmond’s opinions. He has classified them into relative
and absolute duties as explained above.

Relation between Rights and Duties!

1. Rights and Duties always go together:- Rights and duties are closely related and cannot be
separated from one another. Both go side by side. These are the two sides of the same coin. If the
state gives the right to life to a citizen, it also imposes an obligation on him to not to expose his life to
dangers, as well as to respect the life of others. If I have a right to work and earn, it is also my duty to
recognize the same right of others.

2. Right of One is the Duty of Others:- Rights can be enjoyed only in the world of duties. For every
right there is corresponding duty. When the people fail to discharge their duties properly, the rights
all become meaningless. “I can enjoy my rights only if the others allow me to do the same. I have”
the right to life and it is the duty of others to respect my life and not to cause any harm to me.”

3.Rights of a Citizen also implies Duties for him:- Rights are not the monopoly of a single individual.
Everybody gets these equally. This means that “others also have the same rights which I have, and it
is my duty to see that others also enjoy their rights.” Laski has rightly said that one man’s right is also
his duty. It is my duty to respect the rights of others as well as the duty to use my rights in the
interest of society.

4.Rights are to be used for Social Good:- Rights originate in society. Therefore, while enjoying rights,
we must always try to promote social interest. It is the duty of every one of us to use our rights for
promoting the welfare of the society as a whole.

5. Duty towards the State:- Since state protects and enforces rights, it also becomes the duty of all
citizens to be loyal to the state. It is their duty to obey the laws of the state and to pay taxes honestly.
Citizens should always be ready to defend the state. Thus a citizen has both Rights and Duties. He
enjoys rights and performs his duties. Rights and Duties are the two sides of the same coin.

HOHFELD’S ANALYSES

Introduction:

Wesley Newcomb Hohfeld (1879–1918) was an American jurist and professor at Yale Law School
whose contributions radically transformed the way legal scholars, judges, and practitioners
conceptualize rights. Dissatisfied with the ambiguous and overlapping use of the term "right" in legal
language, Hohfeld introduced a structured typology of rights and correlated duties to bring clarity
and precision to legal reasoning. His approach, presented in his 1913 and 1917 articles in the Yale
Law Journal, became a foundational pillar of analytical jurisprudence and is still used in legal
education, constitutional law, and judicial reasoning worldwide.
Hohfeld’s Fourfold Scheme of Legal Relations:

Hohfeld argued that the term "right" is often misused to describe different kinds of legal
relationships. To address this confusion, he devised a logical matrix of rights based on jural
correlatives (two legal positions that imply each other) and jural opposites (two positions that
exclude each other). His framework includes four fundamental legal concepts:

1. Claim-Right and Duty (Jural Correlatives)

• A claim-right exists when one person (A) has a legal entitlement that another person (B)
must respect, thereby imposing a duty on B.

• This is the most traditional and frequently understood type of legal right.

Example: If A lends ₹1,000 to B, A has a claim-right to repayment, and B has a duty to repay the
amount.

• Jural Opposites:

o A claim-right is the opposite of no-right (i.e., if A has no right, B has no duty).

o A duty is the opposite of liberty (i.e., if someone has a duty, they do not have liberty
to act otherwise).

This concept forms the basis of obligations in contract law, tort law, and property law.

2. Liberty (Privilege) and No-Right (Jural Correlatives)

• A liberty or privilege means that a person is free to do or not do something without being
legally obliged to do otherwise.

• It corresponds to another person having no-right to interfere.

Example: A is at liberty to walk in a public park; B has no-right to stop A unless a legal restriction
(e.g., curfew) is in place.

• Liberty ≠ Right in the Claim Sense: A liberty does not obligate others to assist or support; it
simply means there is no legal prohibition.

• Contrast with Duties: A liberty entails no corresponding duty, whereas a claim-right

necessarily does.

This idea is fundamental to civil freedoms — e.g., the liberty to speak, write, or practice a religion.

3. Power and Liability (Jural Correlatives)

• A power is the legal capacity to create, alter, or extinguish legal relations — either one's own
or another's.

• When one person has a power, another has a liability to be affected by its exercise.

Example:

• A has the power to make a will; others are liable to inherit accordingly.

• A judge has the power to sentence a defendant; the defendant is liable to be punished.
 • Distinction from Liberty: Power involves the ability to change legal status, whereas liberty
simply means freedom of action within existing rights.

This concept is pivotal in contract law, property transfers, trust law, and constitutional structures
(e.g., Parliament's power to amend the Constitution).

4. Immunity and Disability (Jural Correlatives)

• An immunity means that one person’s legal position cannot be altered by another person;
the other person has a disability to interfere.

Example:

• An MP has immunity from prosecution for speech in Parliament; the state has a disability to
prosecute them for that act.

• Immunities are particularly important in constitutional law, fundamental rights, and

sovereignty.

Another Example: Citizens may have immunity from ex post facto laws; the state has no power to
criminalize past lawful acts.

This relation protects individuals from the exercise of legal authority by others and ensures the non-
arbitrariness of state power.

Jural Opposites and Correlatives Table (Summary):

Legal Position Jural Correlative Jural Opposite

Claim-Right Duty No-Right

Liberty No-Right Duty

Power Liability Disability

Immunity Disability Liability

Significance of Hohfeld’s Analysis:

1. Legal Clarity and Precision:

Hohfeld cleared the conceptual confusion around the term "right" by breaking it down into
distinct categories, enabling accurate legal argumentation.

2. Theoretical and Practical Use:

Courts and legal scholars continue to use Hohfeldian terms to distinguish between freedoms,
claims, and state powers, particularly in human rights and constitutional adjudication.

3. Separates Form from Substance:

Hohfeld focuses on the structure of legal relations, not their content. His framework allows
jurists to map out legal positions without invoking moral or political considerations.

4. Universal Applicability:
His typology works across different branches of law — from civil law systems to common law,
and in public and private law.
Criticisms of Hohfeld’s Theory:

• Too Abstract: Critics argue that Hohfeld’s theory is too formalistic and ignores the social,
moral, and historical context in which rights develop.

• Value-Neutrality: The theory doesn’t tell us which rights should be protected or prioritized —
it merely categorizes them.

• Ignores Power Dynamics: Feminist and critical legal theorists say that his framework doesn’t
consider how rights function in an unequal or oppressive social structure.

HUMAN RIGHTS, ANIMAL RIGHTS

Human Rights and Animal Rights – A Comparative Jurisprudential Overview

Introduction:

Human rights and animal rights are two parallel yet distinct domains of legal and ethical inquiry.
Human rights are entitlements inherent to all individuals by virtue of being human, while animal
rights challenge the anthropocentric nature of law by arguing that non-human animals deserve
moral and legal consideration. Both concepts are rooted in ideas of dignity, welfare, and justice,
though they diverge in their legal status and enforcement.

Part I – Human Rights

1. Definition and Nature:

Human rights are universal, inalienable, and indivisible rights inherent to all people regardless of
nationality, race, religion, or status.

• They uphold dignity, liberty, equality, and justice.

• They can be civil and political (e.g., right to free speech), or economic, social, and cultural
(e.g., right to education or health).

2. Legal Foundation:

A. International Instruments:

• Universal Declaration of Human Rights (UDHR, 1948) – moral foundation for global rights.

• International Covenant on Civil and Political Rights (ICCPR, 1966)

• International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966)

• Regional treaties: European Convention on Human Rights, African Charter, etc.

B. Constitutional Framework (India):

• Fundamental Rights (Part III of the Constitution)

o Article 14: Equality before law

o Article 19: Freedoms

o Article 21: Right to life and personal liberty

 • Directive Principles (Part IV): guide socio-economic justice.

3. Key Jurisprudence (India):

• Maneka Gandhi v. Union of India (1978) – expanded Article 21 to include dignity, personal
liberty, and due process.

• Vishaka v. State of Rajasthan (1997) – recognized sexual harassment guidelines as part of

human rights.

• Navtej Singh Johar v. Union of India (2018) – struck down Section 377 IPC to uphold LGBTQ+
rights.

4. Philosophical Justification:

• Natural Law Theory: Rights are derived from human dignity and reason (Aquinas, Locke).

• Kantian Ethics: Humans are ends in themselves and deserve autonomy and respect.

• Utilitarianism: Human rights maximize overall well-being (though sometimes controversial in

practice).

Part II – Animal Rights

1. Concept and Evolution:

Animal rights assert that non-human animals are sentient beings capable of suffering, and therefore
deserve legal protections, respect, and moral consideration.

• Goes beyond animal welfare, which focuses on minimizing cruelty but still permits
exploitation.

• Argues for intrinsic value of animals, not just instrumental value to humans.

2. Legal Recognition:

A. Internationally:

• No universal treaty, but soft law exists:

o Universal Declaration on Animal Welfare (draft, UN-initiated)

o World Animal Protection Charter

o EU Treaty of Lisbon recognizes animals as sentient beings.

B. Indian Context:

• Constitutional Provisions:

o Article 48A: Protect wildlife and environment.

o Article 51A(g): Fundamental duty to show compassion to living creatures.

• Statutes:

o Prevention of Cruelty to Animals Act, 1960

o Wildlife Protection Act, 1972

3. Landmark Indian Case Laws:

• Animal Welfare Board of India v. A. Nagaraja (2014):

o Banned Jallikattu under PCA Act.

o Declared that animals have a right to live with dignity and free from cruelty.

o Introduced “Five Freedoms”: freedom from hunger, pain, distress, fear, and to
express natural behavior.

• People for Ethical Treatment of Animals (PETA) v. Union of India (2012):

o Protected birds from being kept in cages.

4. Ethical and Jurisprudential Justifications:

• Utilitarianism (Bentham, Singer):

o Emphasizes capacity to suffer – “Can they suffer?” is the key question.

• Rights-based Theory (Tom Regan):

o Animals have inherent value as subjects-of-a-life and deserve rights like humans.

• Eco-centric and Deep Ecology Theories:

o Focus on ecological balance, not just individual animals.

5. Current Issues and Challenges:

• Lack of enforceable international regime.

• Conflicts with religious and cultural practices.

• Industrial exploitation in factory farming, animal testing, etc.

• Weak penalties and poor enforcement in many jurisdictions.

Comparative Table: Human Rights vs Animal Rights

Aspect Human Rights Animal Rights

Enforceable under constitutional Limited or moral recognition in most

Legal Status
& int’l law states

Basis of Recognition Human dignity, autonomy Sentience, capacity to suffer

Utilitarianism (Singer), Rights Theory

Primary Jurisprudence Natural law, Kant, Locke
(Regan)

Indian Constitution Part III – Fundamental Rights Article 48A, 51A(g), PCA Act

Enforcement Mechanism Courts, NHRC, UN bodies Animal Welfare Boards, NGOs, PILs
 PERSONALITY

INTRODUCTION

Laws are laid down in a society to regulate the conduct of individuals in the society. When
individuals live together in a community, they have certain rights and duties towards each other,
which are controlled by the law prevalent in the society. Acts which interfere adversely with the
rights of others are termed unlawful and law imposes liability on such acts, the enforcement of
which is ensured through legal sanctions. At the outset, rights and duties look the same for everyone
but when we take a closer look, we notice that rights and duties differ at various levels based on the
entities they are dealing with. The concept of legal personality becomes important in jurisprudence
because there cannot be rights and duties without a person.

In general terms, ‘person’ is the bearer or carrier of rights. He is also obliged to perform certain
duties in a society. Individuals are subject matters of rights and duties, but law also recognises
certain groups of persons or of property which are also capable of being subject matter of rights and
duties by conferring artificial personality to them.

In the legal scenario therefore, there are two types of persons which law recognises- natural and
artificial. The first category refers to human beings whereas latter refers to non-human entities.

DEFINITION OF ‘LEGAL PERSON’

This term has been defined by jurists in different ways. The use of term personality is often limited to
human beings alone as they are considered to be the only subject matter of rights and duties.
However, it is to be noted that the term has a much wider ambit and includes within it gods, angels,
idols,corporations etc.

The German jurist Zitelmana defined legal person in the following words, ‘personality is the legal
capacity of will, the bodiliness of men for their personality a wholly irrelevant attribute’.

According to Salmond – “A person is any being whom the law regards as capable of rights and bound
by legal duties.Any being that is so capable is a person whether human being or not and nothing that
is not capable is a person even though he be a man.

Gray defines a person as entity to which rights and duties may be attributed.

According to G.W.Paton, legal personality is a medium through which some such units are created in
whom rights can be vested.

A juristic person is therefore not constrained to human beings alone. It may be any other subject
matter to which rights, liabilities and duties can be attached. Law confers them the capacity of a
person and hence they are called ‘legal persons’. a legal personality is a prerequisite to legal capacity,
it is a prerequisite for international organizations to be able to sign international treaties in its own
name.

NATURE OF LEGAL PERSONALITY

A legal person has two essential elements

– Corpus- it is the body into which law infuses a personality i.e., rights, liabilities and obligations.
– Animus- It is the personality or will of the person.

Legal personality is a creation of the law. Such recognized entities are capable of entering into legal
relationships. While a natural person acquires legal personality naturally by being born, legal persons
are artificial creations. Law attributes such creations a human persona which makes them dutiful and
accountable. They are treated in the same way as human beings for legal purposes. A legal person
has a real existence but its personality is fictitious, because such a thing does not exist in fact but
which deemed to exist in the eyes of law.

LEGAL STATUS OF UNBORN PERSON

In general notion a person is a human being who is or was in existence out in the physical world.
They are inferred to have rights, liabilities and duties. However, over a period of time laws around
the world have recognized the rights, liabilities and duties of non-human entities as they perform
functions that raise questions of accountability.

But what perplexed the legal system was the status of unborn children. They are humans, but not
present in the outer world and hence technically not a person. Questions regarding their rights
stirred discussions.

Law now attributes legal status to unborn children. By legal fiction, a child in the mother’s womb is
treated as already born and can be treated as a person for a number of purposes. Pre-natal existence
of a child as a legal person is also recognized for the purposes of civil action. This means a child is
entitled to recover damages for injuries caused to him while he was a foetus inside the womb of
mother, after he is born. In the landmark case of Montreal Tramways Co. V. Leveille, the Canadian
Court granted damages to a female infant for the deformity caused to her while in mother’s womb.

The notions on this matter differ across various legal systems. In a similar circumstance as mentioned
above, in the case of Walker v. Great North Railway Company, an Irish Court denied damages to an
infant for injuries suffered at pre-natal stages by holding that the company is not duty bound to
person whose existence was unknown to them.

In the case of Eliot v. Lord Joicey (1935) AC 209[12], it was held that ownership may be vested in a
child in mother’s womb (en ventre sa mere) and such a child constitutes life for the purpose of the
rule against perpetuity. For example- Sec 99(i) of the Indian Succession Act 1925 provides: All words
expressive of relationship apply to child in the womb who is afterwards born alive.

The rights conferred on unborn children are contingent upon his taking birth alive, when they are
transformed into vested rights. The Transfer of Property Act 1882 grants protection to property made
in favour of unborn persons. Its object is to protect the property for too long a period from the
possibility of alienation by their owners being unborn persons.

In Criminal Procedure Code 1973, Sec 416 states that in case any woman who is sentenced to death
is found pregnant, an order to postpone the execution must be passed by the High Court, or it deems
it fit, the execution can be reduced to life imprisonment. This is because our legal system recognises
the right to full development of a child. Similar provisions exist in English law under the Sentence of
Death (Expectant Mothers) Act 1931.
LEGAL STATUS OF DEAD PERSON

The general theory is that the personality of person commences with his birth and concludes with his
death. Hence dead people are not technically ‘persons’ in the eyes of law as they no longer hold any
duties or rights.

Salmond points out three things in respect of which anxieties of living men extend beyond the period
their death[15]. The law ensures protection to the following-

A dead man’s body

Dead man’s reputation

Dead man’s estate.

Although the dead man’s corpse is the property of no one, the law seeks to ensure a proper burial or
cremation. article 130 of the fourth Geneva Convention (International Humanitarian Law) is titled as
“Burial Cremation” and it states that the dead bodies must be honourably buried, if possible
according to their religion and that their graves are always respected, properly maintained and
marked in a way that they can always be recognized.

The Supreme Court of India in the case of Ashray Adhikar Abhiyan v. Union of India held that even a
homeless person is entitled to a decent burial as per his religious faith. Maintenance of basic human
dignity must be extended even at the event of death.

The Indian Penal Code, 1860, through its provisions grants protection to the rights and dignity of
corpses. Sec.297 criminalizes trespassing on burial place with the intention of hurting any person or
religion.

Sec. 404 provides punishment to any person who dishonestly misappropriates property possessed by
deceased person at the time of his death.

In India, the criminal law under Sec.499 of IPC, has held that any imputation that damages the
reputation of a deceased person, had he been alive during that time, or is intended to injure the
feelings of his family or near relatives, shall be an offence of defamation.

A will made by a person is enforceable after his death, provided that the will has to be made in
favour of a living legatee. The dispositions made in his will are carried out as per his will, which is
specifically true in case of charitable purposes. Gifts made by deceased for charitable purposes
would be maintainable under law but not otherwise.

LEGAL STATUS OF LOWER ANIMALS

In common sense, animals are considered as the objects of rights and duties and never a subject of
them. But looking back into legal history, it reveals that several laws existed which contained
punishments for animals if they were found guilty of causing death of a man. Sutherland refers to
instances where bulls were punished for killing a man, whereby the bulls are stoned to death and
their flesh not eaten.

In modern sense animals cannot be punished. If they are extremely dangerous, they can be shot
down only under certain laws according to the procedures prescribed.
An animal is incapable of possessing legal rights and duties. It is considered to be the rights and
duties of its owners, which means the owner will be held liable for the damages caused by his
animal. A legal duty falls upon owners of animals, especially ferocious animals, to train and control
them, any departure from which will be considered as negligence from the part of the owner.

The instances where animals possess some legal rights are as follows-

Cruelty to animals is a criminal offence. In india, Sec.11 of Prevention of Cruelty to Animals Act 1960
prescribes punishment for cruelty caused to animals by beating, kicking, torturing, mutilating etc.

A trust for the benefit of a particular class of animals, as opposed to one for individual animals, is
valid and enforceable as public and charitable trust.

CORPORATE PERSONALITY

The legal systems of both England and India recognizes the legal personality of a corporation. A
corporation is an artificial person. There are three conditions that are inferred from the juristic
personality attributed to a corporation. These are-

There must be a group of human beings coming together for certain purpose.

There must be organs through which corporation functions

The corporation is attributed will (animus) by legal fiction.

The characteristics of a corporation are as follows

– A corporation has a legal personality of its own distinct from that of its members.

– In a limited liability company no member is bound to contribute anything more than the nominal
value of shares held by them.

– An incorporated company has perpetual succession which means a company will continue to exist
even after its members change or die. In short, members may come and go but company will remain
forever.

– Shares of the company are transferable in the manner provided by the articles of the company[27].

– As a juristic legal person, a company can sue in its own name and also can be sued in its name[28].

– A company as a separate legal entity is capable of owning its own property. The property of a
company is not equated as the property of its shareholders.

Lifting of corporate veil

This is a legally recognized doctrine where a court, based on circumstances of the case, alters its
perspective and view a corporate and its members in a different light, and hold the members
personally liable for the acts committed in the name of corporation, instead of suing the corporation.

The instances where modern company law disregards corporate personality are-

Where companies are in the relationship of holding and subsidiary or sub-subsidiary companies, as
held in the case of Freewheels (India) Ltd. V. Dr. Ved Mitra.
When the limited liability of a company ceases to exist due to defying the statutory provision which
calls for minimum number of shareholders in a company. For example- if the number of shareholders
in a private limited company falls below 2 or fall below 7 in case of public limited company, in such
case each shareholder is personally liable to an unlimited extent, to the creditor for any debt or
liability contracted by the company after the expiration of six months from the date the numbers fall
below legal minimum, if the member concerned knowingly continued as member.

In certain matters concerning law of taxes, debts, duties and stamps, where the question of
controlling interest is in issue.

Under law relating to foreign exchange and controls.

Under regulations relating to trading with enemy, where the test of control is adopted.

Under express provisions of the statute.

In any other case where it is necessary to lift the corporate veil in the interest of justice and truth.

Liabilities of a corporation

– Civil Liability:

As per the vicarious liability principle, a corporation is liable for the acts committed by its employees
or agents during the course of their employment. However, a perplexing question before the courts
where whether corporations be held accountable for the acts of its servants that involve malice.

In Stevens v. Midland Countries Railway Ltd and Abrath v. North Eastern Railway Company, it was
held that corporation being merely a fiction does not possess a mind of its own. Therefore, it is
incapable of conceiving any malice and cannot be held liable in an action involving malice.

The decision in Abrath case was overruled in Citizen’s Life Assurance Co. v. Brown. it was told that a
company can be held liable for torts involving malice such as defamation. It is now settled that a
corporation may be sued for malicious prosecution or deceit or defamation which involves malice as
a requirement. However, corporation will not be accountable for acts of its servants which are not
authorized by the articles of association of the company.

– Criminal Liability

Previously, companies were not held liable criminally for the acts of its servants. But in the modern
view, a corporation may incur criminal liability in cases involving malice, fraud, or other wrongful
motives. In India also criminal liability may be imposed upon corporations under the Companies Act
and other statutes.

THEORIES OF CORPORATE LEGAL PERSONALITY

Fiction Theory

Savigny, Kelson, Salmond and Holland are the exponents of this theory. According to them,
corporation is merely a fiction. It is a group of persons which by legal fiction are regarded as a real
person.
According to Professor Gray, by fiction an abstract entity called the corporation is created and by a
second fiction the wills of individuals are attributed to it.

A company in law is different from its shareholders or members. The company may become
bankrupt, but its members may remain rich.

2. Concession Theory

According to this theory, juristic personality is a concession granted by the state. It is entirely the
discretion of a state whether to grant juristic personality to a corporation or not. It differs from
fiction theory on the ground that the concession theory emphasizes on the State’s power to
recognize a corporation.

This over emphasize has been criticized by many jurists as it can open doors to State dictatorship.

3. Group personality theory

This theory supposes that every collective group has a real mind, a real will and a real power of
action[39]. this theory was mainly contended by Johannes Althusius and carried forward by Otto Van
Gierke. Gierke stated that the existence of a corporation is real and not based on any fiction. It is a
psychological and not a physical actuality. He further stated that the law has no power to create an
entity but solely has the right to identify or not to identify an entity.

4. Bracket theory

Ihering, a German jurist is the key propounder of this theory. According to this a juristic personality is
only a symbol to facilitate the working of the corporation. Only the members of the corporation are
‘persons’ in true sense and around them a bracket is put to indicate that they are to be treated as
one unit when they have formed themselves into a corporation.

The main criticism against this theory is that it nowhere prescribes the instance of lifting the
corporate veil and holding individual members accountable for their acts.

5. Purpose theory

Here, corporations are treated as persons for certain specific purposes. In Germany foundations are
treated as juristic person. A foundation is a trust like setup for charitable purposes. These
foundations are treated as juristic personality in order to facilitate legal transactions.

6. Kelson’s theory of legal personality

Kelsons theory tells that personality is only a technical personification of a complex of norms, a focal
point of imputation which gives unity to certain complexes of rights and duties[41]. Kelson shows
that there is no difference between the legal personality of an individual and that of a corporation.
LEGAL PERSONALITY OF STATE

State is the greatest form of social organizations. State is a juristic person who can sue and be sued.
Article 300 of the Indian Constitution states that “The Government of India may sue or be sued by
the name of the Union of India and the Government of a State may sue or be sued by the name of
the State”.

Modern writers attribute sovereignty to state. The state is the sovereign, laws are the state laws, the
revenues are state revenue and the public liabilities are state liabilities.

In England the state is not a recognized legal personality. Salmond suggest that existence of
monarchy has rendered the attribution of legal personality to the State superfluous. The rights and
duties of the state are always regarded as that of the King who is the head of the state. So, there is
no independent legal personality for a State.

PROPERTY, POSSESSION AND OWNERSHIP

Introduction:

The concepts of property, possession, and ownership are central to legal systems and private law.
Jurisprudentially, these terms signify different legal relationships between persons and things. While
property refers to the aggregate of rights a person has in a thing, possession is the physical control or
custody of the thing, and ownership is the most complete right one can have over a property.

1. Property – A Bundle of Rights

Meaning and Nature:

In legal theory, property is not a thing but a right over a thing. It refers to a bundle of legal rights over
a resource, such as the right to use, exclude others, transfer, and derive income from it.

Types of Property:

1. Movable and Immovable Property

2. Corporeal (tangible) and Incorporeal (intangible)

o Corporeal: Land, goods.

o Incorporeal: Intellectual property, easements, etc.

Theories of Property:

1. Natural Law Theory (Locke): Property arises from labor and mixing one’s efforts with nature.

2. Historical Theory (Savigny): Property evolves with society and customs.

3. Positivist Theory (Austin): Property exists because the sovereign gives legal recognition.

4. Marxist Theory: Property leads to class conflict; law protects bourgeois interests.

5. Sociological Theory (Duguit): Property should serve a social function, not just private
interest.
Key Case Law (India):

• K.T. Plantation v. State of Karnataka (2011): Recognized property as a constitutional right

under Article 300A, even after deletion of Article 19(1)(f).

2. Possession – The De Facto Relationship

Meaning and Importance:

Possession is the physical control or occupation of a thing, accompanied by the intent to exclude
others. It is protected even without ownership due to its importance in maintaining social order.

Elements of Possession:

1. Corpus Possessionis (physical control)

2. Animus Possidendi (intention to possess)

Salmond: “Possession is the continuing exercise of a claim to the exclusive use of an object.”

Kinds of Possession:

• Actual and Constructive Possession

• Mediated Possession (e.g., through agents or tenants)

• Adverse Possession – Possession without title that may mature into ownership through time
(e.g., limitation laws)

Legal Significance:

• Possession is protected by law even against the true owner to maintain public order.

• In criminal law, illegal possession of stolen goods or narcotics is punishable.

• Transfer of possession is crucial in contracts of bailment, lease, or sale.

Relevant Case:

• Krishna Ram Mahale v. Shobha Venkat Rao (1989): Recognized unauthorized dispossession as
a legal wrong even without ownership.

3. Ownership – The De Jure Control

Definition and Scope:

Ownership is the legal right to possess, use, dispose of, and exclude others from a property. It is the
most complete and comprehensive right in relation to a thing.

Honore’s 11 Incidents of Ownership:

According to A.M. Honore, ownership consists of several legal rights:

1. Right to possess

2. Right to use

3. Right to manage

4. Right to income
 5. Right to capital

6. Right to security

7. Incident of transmissibility (inheritance)

8. Absence of term

9. Prohibition on harmful use

10. Liability to execution (debt recovery)

11. Residual character (reversion)

Ownership is both a legal and moral concept, involving control, accountability, and duty.

Types of Ownership:

1. Sole and Co-ownership

2. Trust and Beneficial Ownership

3. Legal and Equitable Ownership

4. Absolute and Limited Ownership

Transfer and Extinguishment:

• Ownership can be transferred through sale, gift, will, or succession.

• It can be extinguished by destruction, abandonment, or state acquisition.

Comparative Table

Concept Nature Legal Focus Key Jurist/Thinker

Property Bundle of rights over a thing Rights: use, transfer, profit Locke, Marx, Duguit

Possession De facto control + intent Physical control + animus Salmond, Ihering

Ownership De jure, ultimate legal control Full legal title Honore, Austin, Bentham

NEGLIGENCE

Introduction:

Negligence is a foundational concept in tort law and an important subject in legal philosophy.
Jurisprudentially, it refers to the breach of a legal duty to take care, resulting in damage or injury to
another. Unlike intentional wrongs, negligence deals with harm caused by carelessness. It signifies
the legal threshold of responsibility expected in interpersonal conduct and forms the backbone of
civil liability in modern legal systems. Jurists and philosophers have debated the basis of
negligence—whether it lies in morality, foreseeability, utility, or social policy.
Definition and Elements of Negligence:

Negligence is typically defined as the failure to exercise the standard of care that a reasonably
prudent person would have exercised in a similar situation. The classical test was laid down in the
case of Donoghue v. Stevenson (1932), where Lord Atkin introduced the “neighbour principle.” For a
successful negligence claim, the following elements must be established:

1. Duty of Care: A legal obligation to avoid acts or omissions which can reasonably be foreseen
to likely cause harm.

2. Breach of Duty: Failure to meet the expected standard of care.

3. Causation: A direct link between the breach and the resulting harm (both factual and legal
causation).

4. Damage: The claimant must prove actual harm or injury occurred.

These criteria have become universally adopted benchmarks in evaluating liability in negligence
cases.

Historical and Philosophical Evolution:

Negligence developed historically in common law to manage risks in increasingly industrial and urban
societies. Early cases such as Heaven v. Pender and Donoghue v. Stevenson marked the shift from
strict liability to fault-based liability. Philosophically, the development of negligence aligns with the
transition from retributive justice (based on intention) to corrective justice (based on harm and
fairness).

Utilitarian thinkers like Jeremy Bentham supported the negligence principle as a means of
maximizing social welfare by encouraging due care. By holding individuals accountable for
preventable harm, law deters risky behavior and protects societal well-being. In contrast, Kantian
theorists might critique negligence law for assigning liability without intentional fault, thereby
infringing on individual autonomy.

Negligence and the Reasonable Person Standard:

The “reasonable person” test is a central jurisprudential standard in negligence law. It is an objective
test: would a prudent person, in the defendant’s position, have foreseen and avoided the harm? This
test embodies a moral and legal benchmark for societal expectations of conduct. While this standard
provides predictability, critics argue it overlooks subjective factors like age, disability, or cultural
background, raising questions about fairness and justice in its universal application.

Economic and Sociological Perspectives:

From a law and economics standpoint, negligence law incentivizes cost-effective behavior. Scholars
like Richard Posner argue that liability for negligence pushes individuals and corporations to invest in
efficient precautions, balancing the cost of care against the probability and gravity of harm. On the
other hand, sociological jurisprudence (e.g., Roscoe Pound) sees negligence rules as a way of
harmonizing competing interests in society, ensuring that individual freedom does not come at the
cost of collective safety.
Strict Liability vs. Negligence:

In contrast to strict liability, where fault is irrelevant (as in Rylands v. Fletcher), negligence requires
proof of carelessness. The jurisprudential debate here centers on fairness—whether imposing
liability without fault promotes justice or unfairly punishes morally innocent defendants. In certain
areas like product liability or environmental damage, the law has moved closer to strict liability to
better protect vulnerable victims.

Modern Developments and Criticism:

Contemporary negligence law has expanded to cover professional negligence (e.g., medical
malpractice), negligent misstatements (e.g., Hedley Byrne v. Heller), and even emotional or
psychiatric harm. Critics argue that expanding the scope of negligence may lead to a flood of
litigation and unpredictability. Feminist and critical legal scholars also point out that the “reasonable
man” standard often reflects patriarchal or class-based assumptions, requiring a more inclusive legal
approach.

PUNISHMENT : RETRIBUTIVISM – WEAK AND STRONG, CONSEQENTIALISM, RESTORATION

Introduction:

Punishment is a central concern in criminal jurisprudence. Legal theorists have long debated why
societies punish—whether it is to inflict deserved suffering, deter future wrongdoing, rehabilitate
offenders, or repair harm. Jurisprudential approaches to punishment are generally categorized into
three major schools: Retributivism, Consequentialism (or Utilitarianism), and Restorative Justice.
Each offers a different rationale for state-inflicted penalties and reflects deeper views on morality,
justice, and social order.

1. Retributivism

Retributivism is a backward-looking theory. It holds that punishment is justified because the offender
deserves it due to their past wrongdoing. The focus is not on future consequences but on moral
culpability and desert.

(A) Strong Retributivism (Deontological Retributivism):

Strong retributivism argues that punishment is a moral duty, independent of its consequences. It is
rooted in Kantian ethics, where treating people as rational agents means holding them accountable
for their choices.

• Key tenet: “Let justice be done, though the heavens fall.”

• Even if punishment leads to no social good, it is still morally obligatory because it affirms
justice and respects human autonomy.

• Punishment should be proportional to the crime, not based on deterrent value.

Example: A murderer must be punished—even if society gains nothing from doing so—because
failing to punish would mean denying the moral agency of the criminal.
(B) Weak Retributivism (Character-Based or Desert-Weighted Retributivism):

Weak retributivism sees desert as a necessary condition, but not a sufficient reason for punishment.
It blends with consequentialist concerns by allowing deserved punishment only when it also
produces good outcomes (e.g., deterrence, order).

• It is more flexible than the strong form and compatible with practical considerations like
rehabilitation or public safety.

• Seen in modern sentencing policies where retribution is balanced with social welfare.

Example: An offender deserves 10 years for robbery, but may get a lesser sentence if they show signs
of rehabilitation.

2. Consequentialism (Utilitarian Theory of Punishment)

Consequentialism is a forward-looking theory that justifies punishment only if it leads to beneficial

outcomes for society. This is the hallmark of Utilitarianism, developed by thinkers like Jeremy
Bentham and J.S. Mill.

Key Justifications:

• Deterrence: Punishing wrongdoers prevents others from committing similar acts.

• Incapacitation: Prevents the offender from causing more harm while incarcerated.

• Rehabilitation: Aims to reform the offender into a law-abiding citizen.

• General social welfare: Ensures public confidence in the legal system and reduces fear.

The utilitarian approach treats punishment as a means to an end, not an end in itself. It focuses on
cost-benefit analysis—punishment is justified if its benefits (e.g., crime reduction) outweigh the
social costs (e.g., loss of liberty, expense of incarceration).

Criticism: Critics argue that this approach can justify excessive or unfair punishment (e.g., punishing
an innocent person to deter others), violating individual rights and moral principles.

3. Restorative Justice (Restoration)

Restorative justice is a transformative and community-centered approach that focuses on healing

rather than punishment. It seeks to repair the harm caused by crime by involving all stakeholders—
the victim, offender, and community—in a process of dialogue, accountability, and restitution.

Core Principles:

• Accountability: Offenders must take responsibility for the harm caused.

• Reparation: Victims are offered compensation, apology, or other forms of amends.

• Reintegration: Both victim and offender are supported in rejoining society.

• Participation: The process is collaborative, not adversarial.

Restorative justice moves away from state-centered punishment and emphasizes reconciliation and
moral repair. Common practices include victim-offender mediation, community conferencing, and
circle sentencing.
Example: A juvenile offender who vandalized a school may meet with victims (teachers, students),
apologize, and agree to repaint the building as part of the restitution process.

Comparison and Critical Reflections:

Theory Justification for Punishment Focus Criticism

Deserved punishment for past May ignore consequences or

Retributivism Morality
wrongdoing rehabilitation

May violate individual rights for

Consequentialism Future benefits like deterrence Utility
social good

Healing, reparation, and May be too lenient for serious

Restorative Relationships
reintegration crimes

THEORIES OF JUSTICE – UTILITARIANISM, LIBERTARIANISM, CONCEPT OF EQUALITY AND SOCIAL

JUSTICE

Introduction:

Justice is a central and contested idea in jurisprudence. At its core, it refers to fairness in the
distribution of rights, resources, and responsibilities. Over time, several philosophical traditions have
offered distinct visions of justice. Prominent among these are Utilitarianism, which focuses on
outcomes; Libertarianism, which emphasizes individual freedom; and broader concepts like Equality
and Social Justice, which advocate fairness in social arrangements and opportunities. Each theory
reflects a different understanding of what it means for a society to be just.

1. Utilitarianism and Justice

Utilitarianism, associated with Jeremy Bentham and John Stuart Mill, is a consequentialist theory—it
holds that justice is achieved by maximizing the greatest happiness for the greatest number. A just
act or law is one that produces the most utility, meaning pleasure, happiness, or welfare.

Key Features:

• Act Utilitarianism (Bentham): Each act should be evaluated based on whether it increases
overall happiness.

• Rule Utilitarianism (Mill): Justice lies in following rules that, on balance, tend to promote the
greatest good.

Justice Implications:

• Law is just if it promotes social welfare (e.g., criminal law deters harm and increases safety).

• Punishment, property rights, or redistribution is justified if it maximizes collective utility.

Criticism: Utilitarianism may sacrifice minority rights or justify unjust acts (e.g., punishing an innocent
person to deter others), undermining fairness and individual dignity.
2. Libertarianism and Justice

Libertarianism, associated with Robert Nozick, sees justice as the protection of individual liberty and
private property. It is a rights-based theory that opposes state interference in personal and economic
life.

Core Ideas (Nozick’s Entitlement Theory):

• Justice in Acquisition: Property is justly owned if acquired through legitimate means (e.g.,
labor).

• Justice in Transfer: Ownership remains just if transferred voluntarily (e.g., by sale or gift).

• Justice in Rectification: If property was unjustly taken, it must be rectified.

Justice Implications:

• Minimal State: The only legitimate state function is protecting rights (against force, theft,
fraud).

• Redistribution (e.g., taxation for welfare) is viewed as morally illegitimate, akin to forced
labor.

• Emphasis is on individual autonomy, not collective outcomes.

Criticism: Libertarianism is blind to inequalities caused by systemic disadvantages. It fails to address

issues like poverty, discrimination, or unequal starting points.

3. Concept of Equality

Equality as a component of justice refers to treating like cases alike and ensuring individuals are not
disadvantaged due to arbitrary factors (race, caste, class, gender).

Types of Equality in Justice:

• Formal Equality: Equal treatment under the law (e.g., anti-discrimination laws).

• Substantive Equality: Recognizes that unequal social conditions require unequal treatment to
ensure fairness (e.g., affirmative action, reservation).

• Equality of Opportunity: Everyone should have the same chance to succeed, regardless of
birth status.

Justice Implications:

• Legal systems must actively remove structural barriers that inhibit equal participation.

• Law must protect disadvantaged groups, not just remain neutral.

Criticism: Pure equality can conflict with liberty (e.g., forced redistribution) or merit (e.g.,
reservations overriding open competition).
4. Social Justice

Social Justice is a broader, more inclusive conception of justice. It encompasses economic, political,
and social fairness. Thinkers like John Rawls, Amartya Sen, and B.R. Ambedkar contributed
significantly to this domain.

John Rawls – Theory of Justice as Fairness:

• Introduced the Original Position and Veil of Ignorance: People design just institutions without
knowing their position in society.

• Proposed Two Principles of Justice:

1. Equal basic liberties for all (freedom of speech, religion).

2. Social and economic inequalities must benefit the least advantaged (Difference
Principle).

Amartya Sen – Capability Approach:

• Justice is not only about distributing resources but about enhancing people’s capabilities
(real freedoms) to live a life they value.

B.R. Ambedkar – Social Democracy and Justice:

• Argued for justice through liberty, equality, and fraternity.

• Emphasized eradication of caste and social inequality in India.

Justice Implications:

• Social justice seeks to restructure institutions and laws to eliminate deep-rooted hierarchies.

• Focuses on group-based harms, social inclusion, and affirmative policies.

Criticism: Critics argue that such policies may encourage dependency, reverse discrimination, or
conflict with merit-based systems.

Comparative Summary:

Theory Core Focus Justice Means... Strengths Weaknesses

Maximizing happiness
Emphasizes public May justify harm to
Utilitarianism Overall welfare for the greatest
good minorities
number

Respecting freedom,
Individual rights Strong defense of Ignores social
Libertarianism voluntary transfer,
& property liberty inequality
non-coercion

Treating equals Supports anti-

Fair treatment Conflicts with liberty
Equality equally; removing discrimination,
& opportunity and merit
structural barriers reservations
Theory Core Focus Justice Means... Strengths Weaknesses

Restructuring society Risk of overreach or

Targets root causes
Social Justice Holistic fairness to remove reverse
of inequality
disadvantage discrimination

EFFECTIVENESS OF PRECEDENTS

Introduction:

The doctrine of precedent, also known as stare decisis (Latin for “to stand by decided matters”), is a
foundational principle in common law legal systems. It refers to the practice of deciding current cases
by referring to judicial decisions made in previous cases. The effectiveness of precedents lies in their
role in promoting legal certainty, consistency, predictability, and rule of law, but their practical use
also raises questions of rigidity, adaptability, and judicial creativity.

1. Promotes Legal Certainty and Predictability

One of the core strengths of precedent is that it enables legal certainty. When courts follow
established decisions, individuals and lawyers can anticipate the legal outcomes of similar cases. This
predictability is essential for a stable legal order, where people plan their affairs confidently knowing
how the law is likely to be interpreted and enforced. For example, in contract or tort law, reliance on
precedent helps businesses understand legal liabilities and rights.

2. Ensures Consistency and Uniformity

Precedents help achieve consistency in the administration of justice. Similar cases must be treated
alike, and this uniformity safeguards the principle of equality before the law. A lower court must
follow the decision of a higher court on a similar point of law, which reduces the chances of arbitrary
judgments and reinforces public confidence in the judicial system. It also creates a hierarchical
coherence across different levels of courts.

3. Facilitates Judicial Economy

Precedents contribute to judicial efficiency. Instead of re-arguing the same legal principles in every
case, courts can refer to established rulings. This saves time and judicial resources. It also reduces the
burden on parties by streamlining litigation and promoting faster dispute resolution. Over time,
precedent builds a repository of legal reasoning that guides both judges and lawyers.

4. Encourages Development of Law Through Case Law

While statutes provide general rules, many legal situations require interpretation. Precedents allow
courts to fill legislative gaps, resolve ambiguities, and apply law to new facts. This makes the law
more dynamic and responsive. For instance, the Indian judiciary’s evolving interpretation of Article
21 of the Constitution—from protection of life to inclusion of environmental and privacy rights—is a
testament to the evolutionary power of precedent.

5. Balances Stability with Flexibility

Although precedent ensures stability, it is not entirely rigid. Courts, especially apex courts, have the
power to overrule or distinguish past decisions when they are outdated, erroneous, or unsuitable for
new social realities. For example, the Supreme Court of India has overruled several earlier decisions
in the interest of justice, morality, and evolving constitutional values (e.g., overruling ADM Jabalpur
in Puttaswamy case).

6. Criticism: Can Lead to Rigidity and Injustice

The flip side of strict adherence to precedent is that it may perpetuate outdated or unjust rulings. If
courts mechanically apply old decisions without considering changing social, moral, or legal contexts,
it can hinder legal reform. This is particularly problematic when courts blindly follow colonial-era
precedents or ignore progressive changes. Judicial creativity is sometimes suppressed in the name of
adherence to precedent.

7. Complexities in Distinguishing and Overruling

Determining whether a precedent applies often involves complex reasoning. Courts may distinguish a
case on facts or principles, which can sometimes be artificial or inconsistent. Moreover, conflicting
precedents create confusion, especially when there is no clear hierarchy or when higher courts
deliver ambiguous rulings. The process of overruling requires clear authority and reasoning, which
may not always be exercised consistently.

8. Relevance in Indian Legal System

In India, Article 141 of the Constitution states that “the law declared by the Supreme Court shall be
binding on all courts within the territory of India.” Thus, precedent holds constitutional weight.
However, India also allows for a blend of precedent and equity, especially in public interest litigation
(PIL), where the courts sometimes depart from strict precedent to achieve social justice or
constitutional morality.