Law – source of law-function and purpose - law and morality – Rosco

Pound Schools of law – kelsons`s pure theory of law - custom – dharma -

interpretation of statutes – rules of interpretation - Ratio Decidenti and
obiterdicta - Person – type of persons - legal status - legal personality -
Right – rights of unborn – rights of animals -duties - legal right - owner
ship – types of ownership - possession - co ownership - sole ownership-
types of possession - corpus possession - property – types of property –
liability - types of liability –immunity - judicial activism – American
realism – social justice – legal realism – fiction theory – grund norm – role
of Indian Judiciary in developing fundamental rights.

1. Introduction to Law and its Purpose

Definition of Law

Law can be defined as a body of rules, statutes, and principles governing

behavior within a community, enforced by a controlling authority or
government. It ensures that individuals and institutions act in a manner that
upholds justice, order, and societal balance.

Purpose of Law
Law serves several key purposes:

1. Regulation of Behavior: Law establishes acceptable standards of

behavior for individuals, ensuring social stability.
2. Protection of Rights and Liberties: Laws safeguard individual rights,
such as freedom of speech, privacy, and property.
3. Conflict Resolution: Law provides mechanisms for resolving disputes
through courts and other legal processes.
4. Promotion of Justice: Through equitable laws and judicial decisions,
law works to address injustices and inequalities within society.
5. Social Engineering: Law adapts to changing societal norms and
technological advancements, guiding society’s evolution while balancing
individual and collective needs.

The difference between law and morality is often discussed in this context.
While both aim to uphold social order, law is enforceable through governmental
authority, whereas morality relies on personal or cultural beliefs without formal
enforcement.

2. Sources of Law
Primary Sources

1. Legislation: Statutory laws passed by legislative bodies are a major

source of law. Examples include the Indian Penal Code and the
Constitution of India.
2. Judicial Precedents: Decisions made by higher courts set precedents for
future cases under the principle of stare decisis. Precedents ensure
consistency in judicial decisions, with landmark cases like Kesavananda
Bharati v. State of Kerala shaping constitutional interpretation.

Kesavananda Bharati v. State of Kerala (1973)

Facts
Kesavananda Bharati, a head of a Hindu religious mutt in Kerala, filed a case
challenging the Kerala state government's attempts to impose restrictions on
the management of his property under land reform laws. He argued that these
laws violated his fundamental rights, especially his rights to property and
religious practice. This case ultimately questioned the extent of Parliament’s
power to amend the Constitution, specifically whether it could alter
fundamental rights.

Decision and Significance

The Supreme Court, in a landmark decision, held that while Parliament had
the power to amend the Constitution, it could not alter its Basic Structure, a
core set of principles that uphold the Constitution's essence. This decision
limited Parliament’s power and introduced the Basic Structure Doctrine, a
crucial aspect of Indian constitutional law.

3. Customs: Long-standing customs recognized by law may be given legal

authority, especially in personal law domains (e.g., Hindu customary
practices recognized under the Hindu Marriage Act).

Secondary Sources
Secondary sources include books, legal commentaries, and scholarly articles
that offer interpretations of laws and judicial decisions, influencing legal
thought. Texts such as Commentaries on the Constitution of India by D.D. Basu
serve as essential references in understanding legal principles.

4. Function and Purpose of Law

dharma is a moral code that guides a person's life, and morality is

the area of ethics that focuses on whether an action aligns with a
society's values
Law functions as a regulatory framework, ensuring individual rights are
protected while setting limits to prevent infringement upon others' rights. It
plays specific roles in various domains:

 Public Law: Governs the relationship between individuals and the state
(e.g., criminal law, constitutional law).
 Private Law: Regulates relationships between individuals (e.g.,
contracts, property law).
 International Law: Oversees relationships between states, covering
issues like treaties and human rights.

4. Law and Morality

Law and morality often overlap, especially in issues such as murder or theft,
which are both legally prohibited and morally condemned. However, they may
diverge:

 Examples of Overlap: Prohibitions against theft and assault, which are

both immoral and illegal.
 Examples of Divergence: Some immoral acts (like lying) are not illegal,
while some legal mandates (like paying taxes) are morally neutral.

The debate centers on whether the law should enforce morality or allow
individuals personal autonomy, with scholars like H.L.A. Hart and Patrick
Devlin contributing differing views on law’s role in moral regulation.

5. Schools of Jurisprudence

Roscoe Pound’s Sociological Jurisprudence

Pound proposed that law should be an instrument for balancing competing
societal interests. He viewed law as a tool of "social engineering" designed to
resolve conflicts and promote social welfare. His approach:

 Emphasized the practical application of law to address social issues.

 Considered the impact of laws on society, urging judges to consider
social interests alongside strict legal interpretations.

Kelsen’s Pure Theory of Law

Hans Kelsen’s theory, known as the Pure Theory of Law, emphasizes the
separation of law and morality. Key tenets include:
 1. Hierarchy of Norms: Each law derives authority from a higher norm,
ultimately leading to the “grundnorm” or fundamental norm.
2. Autonomy of Legal Science: Kelsen argued that law should be studied
independently of political, social, or moral influences.
3. Universal Applicability: His theory applies to all legal systems, allowing
analysis without subjective influence.

Kelsen’s theory has faced critiques for being overly abstract, especially in
complex legal scenarios where moral considerations influence legal
interpretations.

6. Custom as a Source of Law

Customary law refers to unwritten laws derived from longstanding practices

accepted by society as binding. For a custom to be legally recognized, it must
generally fulfill criteria:

1. Reasonableness: Customs must be reasonable, promoting fair and just

behavior.
2. Continuity: A custom should be practiced over a significant period.
3. Certainty: Customs must be clearly defined and widely recognized.
4. Acceptance: Customs must be commonly accepted by the community
they govern.

Examples in Indian Law: Customs hold significant weight in personal laws.

The Hindu Marriage Act incorporates various customs observed by Hindu
communities, giving them legal recognition.

7. Concept of Dharma in Law

In Indian jurisprudence, dharma signifies a set of moral, ethical, and legal

duties. Rooted in ancient texts, dharma encompasses both personal virtues
and obligations towards society. Unlike the Western concept of law, which
emphasizes rights, dharma is duty-oriented.

Comparative Perspective
Dharma, as a guiding principle, aligns with legal principles in some cases (e.g.,
duty to family and society) but also transcends them by incorporating moral
responsibilities. This concept underscores the communal approach to law
found in traditional Indian thought, contrasting with individualistic legal
frameworks in the West.
8. Interpretation of Statutes

Interpretation of statutes is essential for understanding legislative intent.

Different rules guide judicial interpretation:

1. Literal Rule: Interpreting statutes according to their plain, ordinary

meaning, regardless of outcome. Example: R v. Judge of the City of
London Court (1892), which established that "words should be given their
natural meaning."
2. Golden Rule: Allows modification of the literal meaning to avoid absurd
results. For instance, in Adler v. George (1964), the court modified
interpretation to avoid an absurd conclusion.

Adler v. George (1964)

Facts
The defendants were accused of obstructing military personnel "in the vicinity"
of a prohibited area, as specified by the Official Secrets Act. They argued that
they were actually inside the prohibited area, not "in the vicinity" of it, and
thus the Act did not apply.

Decision and Significance

The court used the Golden Rule of interpretation to avoid an absurd result. It
held that "in the vicinity" included being inside the prohibited area. This case
illustrates the application of the Golden Rule, showing how courts may
interpret statutes flexibly to fulfill legislative intent.

3. Mischief Rule: Interprets statutes based on the "mischief" or issue the

law intended to address. In Heydon's Case (1584), the court examined
the problem that a statute aimed to solve, shaping modern
interpretations.

Heydon's Case (1584)

Facts
This old English case dealt with the interpretation of statutes and established
the “Mischief Rule,” a method for interpreting unclear legislative provisions.
The case required the court to consider the intent of the legislation, identifying
the "mischief" the statute aimed to correct.

Decision and Significance

The Mischief Rule was established to interpret statutes by considering the
problem the legislation intended to address. This rule is still used as a guide to
statutory interpretation, allowing courts to go beyond literal meanings in cases
where legislative intent is unclear.

4. Purposive Interpretation: Considers the broader purpose behind a

statute, often used in cases involving human rights.

The purposive approach has gained importance in India, especially for

interpreting constitutional provisions to ensure the fulfillment of fundamental
rights.

9. Ratio Decidendi and Obiter Dicta

Ratio Decidendi
The ratio decidendi (reason for the decision) is the binding principle of a court
judgment. It forms the legal basis that must be followed by lower courts in
future cases, ensuring consistency and stability in legal interpretation.

 Identification: Determining the ratio can be challenging, as it involves

discerning the core issue the court addressed and the legal principle
applied.
 Example: In the landmark case Donoghue v. Stevenson (1932), the ratio
was the establishment of a duty of care owed to others, laying the
foundation of modern negligence law.

Donoghue v. Stevenson (1932)

Facts
In this case, Mrs. Donoghue consumed ginger beer purchased by a friend from
a café. After drinking it, she found a decomposed snail in the bottle and
suffered shock and illness. She sued the manufacturer, Mr. Stevenson, alleging
negligence for failing to ensure the product was safe for consumption, although
she had no direct contract with him.

Decision and Significance

The House of Lords established the principle of duty of care, holding that
manufacturers owe a duty to ensure their products are safe for consumers.
This case laid the foundation of modern negligence law, particularly the
principle that a duty of care is owed to one's "neighbor"—those foreseeably
affected by one's actions.

Obiter Dicta
Obiter dicta are remarks or comments made by a judge that are not essential to
the decision. They do not carry binding authority but may be persuasive in
future cases.

 Role in Legal Reasoning: Obiter dicta can influence legal reasoning and
offer insights into a judge's thoughts on broader legal issues.
 Example: In Hedley Byrne v. Heller (1964), obiter comments on negligent
misrepresentation became persuasive authority in subsequent cases
involving similar issues.

Hedley Byrne v. Heller (1964)

Facts
Hedley Byrne, an advertising company, requested a bank reference for their
client from Heller & Partners. The bank provided a reference but included a
disclaimer of liability. Hedley Byrne suffered financial losses based on this
information and sued for negligent misrepresentation.

Decision and Significance

The court held that a duty of care could exist in certain circumstances where
negligent misrepresentation occurs, though Heller was not liable due to the
disclaimer. This case laid the foundation for liability in cases of negligent
misrepresentation, especially in professional advice contexts.

Together, ratio and obiter dicta enable judges to interpret past judgments,
balancing strict adherence to precedent with adaptability.

10. Legal Personality and Types of Persons

Legal Person
A legal person is an entity that law recognizes as capable of having rights and
duties. Legal persons are divided into two main categories:

1. Natural Persons: Human beings, who have inherent rights and

responsibilities under the law.
2. Artificial Persons: Entities such as corporations, organizations, and
governments, which the law grants legal rights similar to individuals.

Legal Personality
Legal personality allows artificial persons to enter contracts, sue and be sued,
and own property. Corporate personality enables companies to exist
independently from their shareholders, as established in Salomon v. Salomon &
Co. Ltd. (1897), a foundational case in corporate law.
Salomon v. Salomon & Co. Ltd. (1897)

Facts
Mr. Salomon owned a boot manufacturing business and later incorporated it as
a limited company, Salomon & Co. Ltd., transferring ownership to the
company. He held most of the company’s shares and was its main creditor.
When the company went into liquidation, the creditors sought to hold Mr.
Salomon personally liable, arguing that the company was merely his agent.

Decision and Significance

The House of Lords ruled that the company was a separate legal entity from
Mr. Salomon, with its own rights and liabilities. This case established the
doctrine of corporate personality, affirming that shareholders are not
personally liable for the company’s debts—a cornerstone principle in corporate
law.

11. Rights, Duties, and Legal Rights

Rights
Rights are legally enforceable claims that individuals or entities hold. They may
be classified as:

 Fundamental Rights: Guaranteed by the constitution, such as the right

to equality and freedom of expression.
 Civil Rights: Protect individuals' freedoms in a society, including
freedom from discrimination.

Rights of Specific Groups

 Rights of Unborn Children: Legal systems often recognize the unborn’s

interests in inheritance or guardianship. For example, in Indian law, an
unborn child can inherit property under Section 13 of the Transfer of
Property Act, 1882.
 Rights of Animals: Jurisdictions recognize animal welfare, and some
countries grant animals limited rights to protection from cruelty, with
India enacting animal welfare laws under the Prevention of Cruelty to
Animals Act, 1960.

Duties and Legal Duties

Duties are obligations that an individual or entity must perform, corresponding
to the rights of others. Legal duties are enforceable by law and include moral
and statutory obligations.
12. Ownership and Types of Ownership

Ownership
Ownership refers to the right to possess, use, and dispose of property. Types
include:

1. Sole Ownership: Full ownership by a single individual.

2. Co-ownership: Shared ownership by multiple individuals, often governed
by agreements regarding rights and responsibilities.

Distinction Between Ownership and Possession

While ownership grants full rights over a property, possession refers to the
physical control of it. Possession is a legal concept granting rights to use a
property even without formal ownership.

13. Types of Possession and Corpus Possessionis

Types of Possession

1. Actual Possession: Physical control over property.

2. Constructive Possession: Possession where an individual has control
over a property without physical custody, such as through a lease
agreement.
3. Legal Possession: Recognized by law, even if the possessor does not
have physical control.

Corpus Possessionis
This term denotes the element of control essential to possession. In legal
theory, possession is established not merely by physical control but by the
intent to control the property, demonstrating the possessor’s authority.

14. Property and Types of Property

Property
Property encompasses both tangible and intangible resources that individuals
or entities hold ownership over. Broadly, property is classified into:

 Movable Property: Items that can be moved from one place to another,
like vehicles or furniture.
  Immovable Property: Land and buildings that cannot be moved and are
typically governed by stricter legal rules.
 Tangible and Intangible Property: Tangible property includes physical
items, whereas intangible property refers to non-physical assets like
patents and trademarks.

Each category of property has unique legal implications, especially regarding

inheritance, ownership transfer, and taxation.

15. Liability and Types of Liability

Liability
Liability denotes an obligation to compensate or fulfill duties arising from one’s
actions or omissions. Types include:

1. Civil Liability: Typically arises in civil cases where one party is held
liable for harm caused to another. Examples include contract breaches
and tort liability.
2. Criminal Liability: Arises in criminal cases where an individual is
responsible for violating criminal statutes, leading to punishment.
3. Vicarious Liability: When a party is held liable for the actions of
another, such as an employer’s liability for employees’ actions.
4. Strict Liability: Liability imposed without fault or negligence, often in
cases involving hazardous activities.

Examples in Indian Law: Vicarious liability is exemplified in employer-

employee relationships under the principle of respondeat superior, where
employers are liable for employees’ actions during employment.

16. Immunity

Immunity
Immunity is the legal protection against prosecution or liability. Types of
immunity include:

1. Sovereign Immunity: Governments and their officials are often immune

from lawsuits unless they consent to be sued.
2. Diplomatic Immunity: Protects diplomats from legal action in the host
country under international law, specifically the Vienna Convention on
Diplomatic Relations.
 3. Judicial Immunity: Judges are typically protected from liability for their
judicial actions to ensure independence and impartiality in decision-
making.

Immunity ensures that certain positions can operate without fear of legal
repercussions, but it has limitations to prevent abuse.

17. Judicial Activism

Definition
Judicial activism refers to the judiciary’s proactive role in interpreting the law,
often to protect rights and address societal issues. Through judicial activism,
courts may expand rights, influence policy, and promote social justice.

Examples in India
The Supreme Court of India has engaged in judicial activism, especially in
cases relating to fundamental rights. Landmark judgments include:

 Kesavananda Bharati v. State of Kerala (1973): Established the Basic

Structure Doctrine, limiting the Parliament’s power to amend the
Constitution.
 Vishaka v. State of Rajasthan (1997): Addressed sexual harassment at
workplaces, leading to the creation of guidelines in the absence of
legislative protections.

Vishaka v. State of Rajasthan (1997)

Facts
The case arose after the brutal gang rape of a social worker named Bhanwari
Devi in Rajasthan. There were no specific laws addressing sexual harassment
at workplaces in India, so Vishaka and several women’s organizations filed a
Public Interest Litigation (PIL) seeking enforcement of women’s fundamental
rights in workplaces.

Decision and Significance

The Supreme Court established the Vishaka Guidelines, setting out procedures
to prevent sexual harassment at workplaces. These guidelines were to be
followed until proper legislation was enacted. This judgment was instrumental
in the enactment of the Prevention of Sexual Harassment (POSH) Act, 2013,
and highlighted the role of judicial activism in addressing social issues.

Judicial activism, while instrumental in social change, faces criticism for

allegedly overstepping the judiciary's role.
18. American Realism and Legal Realism

American Realism
American Realism is a legal philosophy that emphasizes the role of societal
influences on judicial decisions. It challenges the notion that law is a set of
objective rules and suggests that factors such as judges’ personal beliefs and
social conditions influence rulings.

Legal Realism
Legal Realism, more broadly, argues that law should be based on social needs
and realities. Realist thinkers advocate for laws that reflect social values and
address contemporary issues, rather than adhering strictly to precedent and
formalistic interpretations.

Influence on Modern Jurisprudence

American Realism has influenced judicial systems worldwide, encouraging a
more flexible and pragmatic approach to interpreting laws.

19. Social Justice

Social Justice in Law

Social justice involves ensuring fair treatment and equal rights within a society.
Legal systems often strive to promote social justice through protections for
marginalized communities, labor rights, and affirmative actions.

Legal Mechanisms for Social Justice

In India, social justice is integral to the Constitution. Articles 15 and 16, for
instance, prohibit discrimination and promote equal opportunities in public
employment.

Judicial Role
Courts play a vital role in interpreting laws to further social justice. For
example, the Supreme Court’s progressive rulings on issues like reservation
policies and labor rights reflect a commitment to social equity.

20. Fiction Theory

Definition
The Fiction Theory in corporate law posits that legal personality granted to
corporations is a legal fiction. It means corporations are treated as “persons”
under law, despite lacking physical existence.

Application in Corporate Law

Corporations, under Fiction Theory, have rights and liabilities similar to
individuals, enabling them to sue, be sued, and own property. This theory,
established by cases like Salomon v. Salomon & Co., supports the concept of
limited liability, where shareholders are not personally liable for corporate
debts.

21. Grundnorm

Grundnorm in Kelsen’s Theory

The Grundnorm, or basic norm, is a foundational concept in Hans Kelsen’s
Pure Theory of Law. It represents the supreme legal principle that underpins all
other laws in a legal system. Kelsen argued that a Grundnorm is necessary to
establish a legal system's legitimacy.

Criticisms
The concept has been criticized for its abstract nature, as it lacks a concrete
basis and may be difficult to identify in practice. Despite this, it remains
influential in discussions on legal foundations.

22. Role of Indian Judiciary in Developing Fundamental Rights

The Indian judiciary has played a significant role in expanding fundamental

rights through interpretation and activism. The Supreme Court has used
judicial review to protect individual rights and maintain the constitutional
framework.

Significant Cases

 Maneka Gandhi v. Union of India (1978): Broadened the scope of

Article 21, ensuring the right to life includes dignity, personal liberty,
and fair procedure.

Maneka Gandhi v. Union of India (1978)

Facts
Maneka Gandhi’s passport was impounded by the Indian government “in
public interest” without giving her a hearing, which she argued was a violation
of her right to personal liberty under Article 21 of the Constitution.

Decision and Significance

The Supreme Court ruled that “right to life and personal liberty” under Article
21 includes a right to a fair procedure. This judgment broadened the
interpretation of Article 21, making it inclusive of due process. It established
the requirement of reasonableness and procedural fairness, significantly
expanding fundamental rights in India.

 Navtej Singh Johar v. Union of India (2018): Decriminalized

homosexuality by reading down Section 377, advancing LGBTQ rights in
India.

Navtej Singh Johar v. Union of India (2018)

Facts
This case challenged the constitutionality of Section 377 of the Indian Penal
Code, which criminalized "carnal intercourse against the order of nature."
LGBTQ individuals argued that the provision violated their rights to equality,
privacy, and personal freedom.

Decision and Significance

The Supreme Court struck down the portion of Section 377 that criminalized
consensual homosexual acts between adults, recognizing it as
unconstitutional. This historic ruling decriminalized homosexuality in India
and represented a major step forward for LGBTQ rights, affirming equality and
personal freedom.

By expanding fundamental rights, the Indian judiciary has shaped India’s

democratic and egalitarian principles.