8 Explain the importance of Legislation as source of Law. OR
Distinguish between supreme and subordinate legislation?
INTRODUCTION:- Legislation means the process of law making. This law making power is vested in the legislation body which is sovereign body. It is called Parliament at the centre level and legislative assembly at the state level. Legislation is the most important and modern source of Law. This source has played an important role in the development of modern law and also different from custom and precedent etc.
LEGISLATION AS A SOURCE OF LAW:- The importance of legislation starts from the beginning of analytical school. This school ignored the importance of custom and gave the stress on command of sovereign which can make law only through legislation. This school also ignored the judge made law. About custom they say that the custom are not law but they are the source of law.
HISTORICAL SCHOOL:- It gives no importance to the legislation rather gives more importance to custom. According to them the function of law in only to specify and to correct the custom into law whereas in the modern times the importance of legislation has considerably been increased. With the coming of existence of the State the legislation has also been come into existence and become most important source of law. The scope of legislation has become very wide in the modern times.
KINDS OF LEGISLATION:- There are two kinds of the legislation :-
1. Supreme Legislation:- It has the powers of making law and is known as supreme legislation in each country. This power is vested in sovereign body in India i.e. Parliament at the centre and legislation in the State.
2. Subordinate Legislation: It is inferior from supreme legislation and is indirect legislation. It takes power to make law indirectly from Parliament, who gave him power to make law that is why is called subordinate legislation authority. It is further divided into the following parts :-
i) Autonomous Laws : A group of persons for making law is known as autonomous law and body i.e University or Boards.
ii) Judicial Rule :- means the rules made by judicial body under power owed from supreme authority i.e. High courts or supreme court etc.
iii) Local Law: means law made by local bodies under the control of SC i.e Zila Parishad, Municipal Corporation.
iv) Colonial Law: It is for those countries who are under the control of any other country can make laws with the permission that country.
Executive Law:- The law and the rule can be made by the executive body in the State under the power conferred by the Sovereign/ Parliament which is also known as delegated legislation. It includes the following origins :
I) Legislation:- The legislation is the super power to make law for a country.
II) Executive:-The executive body of the nation is to imposes law in the country.
III) Judiciary:- The Judiciary is to explain and implies the law so passed.
Parliament in India delegates its laws making power to the executive body and this power is called legislated or delegated legislation.
Many reform acts were handing power of making reforms, controlling of employment, development of education. In 20th century some important matters were given to delegated legislation to restrict the State to interfere in the daily life of the citizens.
CRITICISM:- Many of the writers has criticized this power because it gives much power to the executive body and administration body. The legislation has passed by facing the complicated problems in the constitution. There were some supporters also who were in the favor of this delegation of power.
REASONS FOR DELEGATED LEGISLATION
i) Lack of Time:The parliament has the shortage of time because of a Public welfare state. It has to pay much time towards national problems.
ii) Technicality of Matters:- With the progress of society the things have become more complicated and technical. Therefore the policy is made by the Parliament and the imposing matter is left on the masters of it.
iii) Flexibility: Law should be flexible and according to the need & conditions of the Public along-with the local matters which are different from area to area, So keeping in view of this reason the power is handed over to the executive.
There are some dangers in delegations of this power:-
i) The executive body may uses the more powers than the powers delegated by the Parliament. (ii) The Parliament has no time to examine the rules passed by the executive under delegated legislation.
In India there is a Parliament form of legislation and it is a welfare state and the Parliament cannot go aside from the constitution. Any cut against the constitution is void. The Main power of delegated legislation & CONCLUSION is :
Power of facing an act into operation. Power to apply the Act.
Power to increase or to decrease the scope of the Act. There is a parliamentary as well as judiciary control over delegated legislation. This power in India has also on constitutional basis.
9 Discuss the nature and scope of Jurisprudence. What is the importance of this subject in the study of law? OR “Jurisprudence is the eye of law”.
INTRODUCTION :- Jurisprudence in its nature is entirely a difference subject from other social science. The reason for this is that it is not codified but a growing and dynamic subject having no limitation on itself. Its inquiry system is of different status from other subjects. Every jurist does not base his study on the rules made but tries to understand their utility after due deliberation Thus the jurisprudence has no limited scope being a growing subject. There is difference of opinion about the nature of jurisprudence. It is called both art and science. But to call it science would be more proper and useful. The reasons for this is that just as in science we draw conclusions after Making a systematic study by investing new methods. In the same way jurisprudence is concerned with the fundamental principles of law systematic and scientific study their methods.
Scope of Jurisprudence:- According to justice P.B.Mukherjee: ,” Jurisprudence is both an intellectual and idealistic abstraction as well as behavioural study of man in society. It includes political, social, economic and cultural ideas. It covers that study of man in relation to state and society.”
Jurisprudence involves certain types of investigations into law, and investigation an abstract, general and theoretical nature which seeks to lay the bare essential principles of law and legal systems.
Salmond observed: “In jurisprudence we are not concerned to derive rules from authority and apply them to problem, we are concerned rather to reflect on the nature of legal rules, on the underlying meaning of legal concepts and on the essential features of legal system.” It therefore follows that jurisprudence comprises philosophy of law and its object is not to discover new rules but to reflect on the rules already known.
CONTENTS OF JURISPRUDENCE:- The following are the contents of jurisprudence:-
i) Sources It is true that the basic features of a legal system are mainly to be found in its authoritative sources and the nature and working of the legal authority behind these sources. Under this head matters such as custom, legislation, precedent as a sources of law, pros and cons of codification of laws, methods of judicial interpretation and reasoning, an inquiry into the administration of justice etc., are included for study.
ii) Legal Concepts :- Jurisprudence includes the analysis of legal concepts such as rights, title, property, ownership, possession, obligations, acts, negligence, legal personality and related issues. Although all these concepts are equally studied in the ordinary branches of law, but since each of them functions in several different branches of law, jurisprudence tries to build a more comprehensive picture of each concept as a whole.
iii) LEGAL THEORY :- Legal theory is concerned with law as it exists and functions in the society and the manner in which law is created and enforced as also the influence of social opinion and law on each other. It is therefore necessary that while analysing legal concepts, and effort should be made to present them in the background of social developments and changing economic and political attitudes.
UTILITY OR IMPORTANCE OF JURISPRUDENCE
It is often said that jurisprudence being an abstract and theoretical subject, is not of any practical use. But it is not correct to say so. Its utility is as under :-
1. Salmond pointed out that jurisprudence has its own intrinsic interest like and other subject of serious scholarship, likewise the writer on jurisprudence may be impelled to his subject by its intrinsic interest. The legal researches on jurisprudence may well have their effect on contemporary socio-political thought and at the same time may themselves be influenced by these ideologies.
2. Jurisprudence also has its practical applicability. In other words it serves to render the complexities of law more manageable and rational and in this way theory can help to improve practice in the seats of law.
3. Jurisprudence has great educational value. The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their rigidity and formalism and trains them to concentrate or social realities and the functional aspects of law. It is not the form of law but the social function of law which has relevance in modern jurisprudence. For instance, a proper understanding of law of contract may perhaps require some knowledge of economic and economic theory or a proper grasp of criminal law may need some knowledge of criminology and psychiatry and perhaps also of sociology.
4. Commenting on the significance and utility of jurisprudence : Holland observed, “ the ever renewed complexity of human relations call for an increasing complexity of legal details, till a merely empirical knowledge of law becomes impossible.” Thus jurisprudence throws light on the basic ideas and the fundamental principles of law in a given society. This why it has been characterised as “The eye of law.”
5. Jurisprudence helps the Judges and the Lawyers in ascertaining the true meaning of the laws passed by he legislature by providing the of interpretation.
6. The study of jurisprudence helps in rationalising the thinking the students and prepares them for an upright civil life. The knowledge of law and legal precepts also helps them to face every exigency of human affairs boldly and courageously.
7. Jurisprudence may also be helpful o legislators who play a crucial role in the process of law-making. The study of jurisprudence may familiarise them with technicalities of law and legal precepts thus making their job fairly easy as also interesting.
According to Dias the study of jurisprudence provides an opportunity for the lawyer to bring theory and life into focus for it concerns human thought in relation to social existence. The law should serve the purpose of social-engineering by preserving societal values and eliminating conflicting interests of individuals in the society.
JURISPRUDENCE IS THE EYE OF LAW:- On account of importance of jurisprudence in the field of law it is called, “The eye of Law”. The eyes are one of the most important parts of human body. Almost all human activities and the movements of body are possible only through them. Unless man can see anything properly, he cannot do any work. The reason of calling jurisprudence the ‘ the eye of law’ is that jurisprudence functions for law in the same manner as the eyes do in human body. For example- the interpretation of law is a very difficult task, It cannot be done without the help of jurisprudence. ‘PATON’ in this connection says that,” Jurisprudence is a particular method of study, not the law of one particular county but of the general notions of law itself.’ Whenever any complicated problem regarding law like:-
1 How and when the law developed. 2 What is its object. 3 Whether the law was made by people or it was due to the inspiration of some Divine force. 4 Whether the law is a command of a sovereign or it is a result of gradual development of civilization in society. The main function of jurisprudence is to study the origin of law, its development and its contribution towards society.
The matters to birth, marriages, death, succession etc., are equally controlled through laws. It is the well known saying that, “ignorance of law is no excuse,” hence it is essential to know the correct basic principles of law which are contained only in the jurisprudence. Law is also connected with civil life. A person who obeys laws is known as a civilized citizen. A person who does not obey law is punished. It is therefore necessary that all the people should have the sound knowledge of law which is possible only with the help of jurisprudence. Therefore, jurisprudence, having so much importance for the society, has rightly been called the eye of law.
14 Define Precedents? Lay down the importance of the precedents as the source of law. In what sense they are binding? Do the judges make law?
INRODUCTION:- Precedents literally means previous judicial decision. The decisions of the higher courts are binding on the lower courts. The binding force of decision is called precedent. The precedents play an important role in the development of law. It is the second important source of law. First source is customs and the third source is legislation. Sometimes act may be insufficient for the case or there may be an vacuum or any thing missing in the act. Under these circumstances the court can apply their own mind. These independent decisions becomes precedents which are followed later on by the same & Lower courts. This method of decision is also called as Judge made law. The English and American law is mostly based upon the precedents. In India Art.141 of Indian Constitution says that the decision of the higher courts shall be binding upon the lower courts.
DEFINATION OF PRECEDENTS:- Precedents are a decision of a court which is also called judicial decision. According to the Oxford University, “Precedents means the previous decision case given by a court according to rules.” Various writers have given the definition of precedents is conduct of court adopted by the lower court in similar facts and in similar circumstances in a case. Particularly the precedents means the Judge made law. When the court gives its own ideas for creating new rules. England, America and China also follow the previous decisions as the source of law but the continent countries like Germany, Japan does not accept the previous decisions as the source of law. The method of taking precedents as source of law is called inductive method, while the method of continental countries not following previous decisions of the court is called deductive method.
MERITS OF PRECEDENTS:- Precedents are a very important source of Law. They play an important role in the development of law, so they have certain advantages as:
1. Precedents show true respect to the ancestors means by adopting the previous decision of the higher court to decide the present case, it is a kind of respect to elders.
2. Precedents are suitable to the present situation means after some times the circumstances of the society can change with the change of time so the precedents they are more suitable and fit for the present time and circumstances.
3. Precedents are based on customs means the law in the form of act which based upon customs. Court interprets the customs while interpreting any act.
4. Precedents are convenient and easy to follow because they are available in the form of written reports.
5. Precedents bring certainty in law, once decision is given in a case there would be no need to repeat all precedents in any other case if it resembles to the former case.
6. Precedents are the best guide for the Judges: They play an important role in the judiciary because the precedents are the guide lines for the courts.
DEMERITS OF THE PROCEDENTS:- lthough the demerits are very few but these are as under :-
i) The decisions are given by the human beings while performing the duties as judge, his decision may not be suitable to all persons who have different mind and thinking. This will be a bad effect on Judiciary.
ii) Sometimes the decisions of the higher courts contradictory to each other. It becomes harder to another judge to apply the same verdicts as a precedents of higher court
iii) Sometimes the higher courts give a wrong decision and over pass the important factors of the case due to one reason or the others.
PRECEDENTS ARE BINDING:- The precedents is an important source of law. It is available in the form of judicial decisions. Now the question arises that in what sense and when the precedents are binding o follow. For the answer of this query different views have been given by the various writers and jurists. No doubts the precedents is not binding like warrant issued by a court of law. It means precedent can be over ruled if they are not right or appropriable to the case to be decided but warrant has to be followed by all to whom it is applicable.
It is not necessary that in the case which is to be decided the circumstances and the facts must be the same as in resembling case. If the facts and the circumstances of the cases are materially similar then the precedents or previous judicial decision is applied in the later cases and are applied only in the form of ‘ratio decidendi’ of previous cases. There are two parts of it :-
i) Ratio-decidendi:- means reasons which leads the court to reach the decision. It is the main part of the case in judgement and the ratio decidendi of the decision is binding in the form of precedent.
ii) Obits decidendi:-It is also a part of the decision which is irrelevant to the facts and circumstances of the case. The judge takes into consideration the social conditions, morality, principal of natural justice that is why the Judges play an important role in the development of legal system.
DIFFERENCE BETWEEN CUSTOM & PRECEDENTS
CUSTOMS PRECEDENTS
Custom is primary source of law.
Precedents are the secondary source of law.
Custom is given by people in general. Precedents are given by courts.
Custom is conduct adopted by people of society. Precedents is itself complete certain, reasonable given by a competent court of the country.
Custom is based upon the reasoning of common people of the society.
Precedents are based upon the reasoning of a individual Judge or very few judges.
Customs have more value then precedents and cannot be ignored. It can be ignored if it gives un-justice.
DO JUDGES MAKE LAW:-
There are two theories about this purpose one theory says that Judgs do not make laws and other theory says that Judges in fact are the makers of Laws. This theory is also known as declaratory Theory. According to this the judges are not makers of the laws which they are already n existence. The judges while deciding the case only applies the existent and relevant customs for deciding the cases.
Judges are not the law makers:- The supporters of this theory (historical school) says that all the laws are based upon customs. The judges only to explain these laws and customs. According to Coke hate and Dr.Carter, that the law is created by the King or by the Parliament or by the Legislature bodies. Common Laws is based upon custom. The public through the decision of courts come to know those customs. It means that Judiciary is not the maker of law. A case: Rageshwar Parsad v/s state of West Bengal. It was held that, The court does not create Law.
ORIGINAL LAW MAKING THEORY
This theory is opposite to the first theory. It says that the Judges are the real makers of the law. They not only interpret or explain but also make the law. According to Salmond: who is the main supporters of this theory says, “ That the decisions of the courts are a great contribution to the legal system.” Dicay says that, “that legal system is the best part of the law of England which is judge made law.”
CONCLUSION:- The conclusion or the correct view is that we cannot ignored any of the above theories because both are correct and complements to each other and both should be taken. No doubt that a Judge can only to explain or to interprets the existing laws but at the same time he also creates the new ideas, thoughts and gives new touch ideas which play an important role in the development of law.
2 What is Law? Discuss. Definition given by various jurists?
INTRODUCTION: It is easier to explain than to define it. It means that things are easy to explain than to define it. Definition is very necessary for the study of the subject, because the beginning and in one sense it ends is also its definition. To give a definition of Law is comparatively a hard task due to many reasons :
1. In Hindu :- Dharma
2. In France :- Droit
3. In Rome :- Jur.
4. In Muslim :- Hukma
All these above words conveys different meaning. And we can say that a definition which contain all the above meaning and all elements would be a good definition of law. Endlly definition given by every person is always different. Because definition given by a lawyer a philosopher, a student or a lecturer is always different. A definition which doesn’t cover all these elements would be an in-perfect definition.
DEFINITION OF LAW:- The word, “Law” has been taken from the ‘latin word’ which means “The body of Rules” various scholars has attempted to define this term according to their own prospective. Some of them are as under:-
According to Roman Scholars:- The law is concerned with the parameters which is right or wrong, fair and unfair.
ULPIAN:- The famous Roman scholars and a Juries, he defined the term ,” Law as standard of what is just and unjust.”
According to Salmond:- The law is the body of principals recognised and applied by the state in the administration of justice.
According to Positivist Definition :- They are known as a modern thinkers and they propounded a new school in the Law namely, “ Analytical School.” This school is also known as a scientific school. Benthem, Austin and Kelson define the term of Law in the following manners:-
1. AUSTIN:- Austin is the father of English Jurisprudence and according to him, “Law is the command of sovereign” There are three elements of law according to Austin :
a) Command )
b) Duty ) = LAW
c) Sanction )
According to him every law have a command and due to this command we have the duty to obey this command and if we don’t obey this duty then there is a sanction.
2. As per Benthem:- The law is the violaion of some declarations by the political head with utiity ensuring maximum happiness of he maximum people in the society. Benthm concept of law revolves around individual utilitarianism and its concern with the theory of pain and pleasure, which means that the purpose of Law to reduce the pain and harms and pleasure in the society.
3. According to Kelson:- The law is depsycholigically command. He is concern with those commands which purely rest upon the formal expression of law.
3. Sociological Definition: The sociological approach is not a single approach but it includes a number of thoughts, but all these thought related to society, that is why heading is given them to sociological. And we shall discuss some of true definitions :-
DUGUID :- According to him the law is a set of sosme formal norms aiming an creation of soliditary in society.
IHERING :- According to Ihering the Law is a form of guarantees of the conditions of life in society which are assured by the states power of constraint.
EHRLICH :- Ehrlich lays down, “that the law consists of norms coverings social life. But only the living Law is the actual law.”
ROSCUEPOUND :- According to him Law is an instrument for balancing, conflict or completing interest of people in the society.
REQUIREMENTS FOR LAW
The followings are some requirements for the definitions of law :-
i) Before the law there is a State.
ii) Before the State there must be a society.
iii) State & society develop a legal order to be followed.
iv) And finally law always has a purpose.
CONCLUSION:-
In end we can say that law is the important and necessary part of the state and developing the human beings. Law gives rights and duties to human beings. And law is the essential part of a State. Law is an instrument of social control as well as social change.
3 Define ‘Right’ and discuss the essential elements of legal right. OR
What is a ‘Legal Right’? Discuss the characteristics of a legal right.
INTRODUCTION: Right generally means an interest or facility or a privilege or immunity or a freedom. In this way right for the purpose of jurisprudence is called legal right. Austin in his theory has separated the subject matter of jurisprudence from morality or materiality. He gave the concept of positive law. So here also right means positive law right only, which is term of legal right. Legal right is recognised by law. It is different from moral right. Moral right if violated is called moral wrong. The violatin of natural right is called natural wrong. But these wrongs are not remedial under law while if a legal right is violated then it will be legal wrong which is remedial under law. The different jurists have defined legal right in different ways:- According to Austin : “ Right is a faculty which resides in a determinate party or parties by virtue of a given law and which avails against a party or parties other than the party or parties in whom it resides.” According to Salmond :- “ Right is an interest recognised and protected by the rule of right.” Here rule of right means rule of law or law of country. When an interest of a person is protected by the rule of law then it is called right. Salmond definition involves two points, firstly that right is an interest and secondly it is protected by rule of right. It means that it relates to his (person) interest i.e., life liberty, heath and reputation etc. Grey has criticised the interest theory propounded by Salmond, Ihering and Heck and he has supported the view that right is not an interest but that means by which the interest is secured. According to Holland, “ right is as a capacity residing in one man of controlling, with the assent and assistance of the state the action of others.”
According to Paton : “ That legal right is that it should be enforceable by the legal process of the state.” He however says that there are three exceptions to this rule :-
1. It is not necessary that the state should always necessarily enforce all the legal rights.
2. There are certain rights which recognised by law but not enforced by it for example : In a time barred debt, the right of the creditor to recover the debt is an “ imperfect right”
3. There are certain laws which do not confer right of enforcement to the courts, for example : International Court of Justice has no power to compel enforcement of its decrees under International Law.
THEORIS OF RIGHT :- There are two theories of right :
1. WILL THEORY : This theory is based upon the will of human beings. It says that a right reflects the inner will of a human being. Austin, Holland, Halmes and Dov recognised this theory of right. According to them a person wants o remain in the world freely and according to his own choice because a man is born free.
2. Interest Theory:- This theory says that interest is the base of the right. It is only interest which is recognised by law. This theory reflects the external nature of the human beings. Supporter of this theory say that there are many interests in the world. These interest which are protected and recognised by law are called right.
ELEMENTS OF LEGAL RIGHT:- Following are the elements of Rights :-
1. Subject: here means a person who has right. So there must be a person for rights
2. Act of Forbearance :- Right means some standard of action permitted by law. In a right either an act is done or an act is forbidden. This is also called as content of right.
3. Object:- There must be a object upon which the right is exercised. Mainly there are three essential elements of right e.g. Lives in a house. Here : (i) A has the right to live in the house. (ii) A is subject, house is object and (iii) His living in the house is act content. But some writers give some more elements of right.
4. Correlative duty: For right there must be a correlative duty. In the above example ‘A’ has the right to live in the house but other persons have correlative duty not to disturb him. Almost all jurists agree on the point because one cannot exists without the other. Here Austin is not agree to this He says that the duty may be divided into two kinds i.e. (1) Absolute and (ii) Relative.
5. Title: Salmond gives one more element of rights in the form of title. He says that a right has got also a title. Title may be in the form of the owner or co-owner or mortgager or leaser or buyer etc.
ILLUSTRATION: If, ‘A’ buys a piece of land from ’B’. A is the subject or owner of the right so required. The person bound by the co-relative duty is persons in general because a right of this kind avails against the world at large. The right consists in non-interference with the purchaser’s exclusive use of the land.
KINDS OF RIGHTS :- The following are the kinds of rights :-
1. Primary right and secondary right : Primary right is an independent right while secondary right means dependent right. They are also called as principal right and helping right or remedial right. ILLUSTRATION:- ‘A’ has right of reputation which is his primary and independent right. If any person defames A then A has the right of damages against the defamer. This right of damages is called secondary right or remedial right.
2. Positive and Negative Right:- Positive right is linked with negative and negative right is linked with duty. Positive right permits to do an act while negative right prohibit doing an act.
ILLUSTRATION:- ‘ A ‘ has the right of reputation. This is his positive right and any person should not defame him. The defaming his reputation called negative right.
3. Right Rem and Personam:- Right in Rem means right against the whole world while right in persosnam means right against a definite person.
ILLUSTRATION: ‘A’ has not to be harmed by any person. This is right in rem. On the other hand, ‘A’ has entered into a contract with ‘B’ and ‘B’ has broken +ve contract. ‘ A “ can enforce this right against ‘B’. This is known as right in personam.
1. LEGAL AND EUITABLE RIGHT (NATUAL JUSTICE):- The division of right has its origin in England. Legal ight is recognised by Law. While equitable right has been recognised by natural justice. In England there were two types of courts: (i) Legal courts (ii) Chancery courts
Chancery Courts recognised the conquerable rights on the basis of justice, equity and good conscience.
4. Vested & Contingents Right:- These rights is of permanent nature that depends upon the happening of an uncertain event. Thus contingents right becomes full right only when such uncertain events happen according to the condition.
5. Proprietary and Personal Right:- Proprietary rights which are concerned with property. A person possessing any property has the proprietary right over it, and personal right means the right related with a person or a body. Every person has a status. He should not be injured or defamed. If any person injures or defames another person then the wrong doer infringes the personal right of a person.
6. Perfect or Imperfect Right:- These rights which are enforceable by law are perfect and which law does not enforceable are imperfect rights.
7. Right of Re-propia and Right in re-alena:- Right in re-propia means the right in one’s own thing whereas right in re-aliena means the right in the things of others.
17 Define Ownership. Discuss the various kinds of ownership. Distinguish between possession and ownership.
INTRODUCTION: Ownership is linked with possession. Possession is the first stage of ownership. It means for ownership possession is necessary. Possession and ownership both are two sides of the same coin and one cannot exist without the other.
Ownership gives the full right over the thing. Ownership is ultimate and final right for disposing the property. It means to transfer that property in any way. Ownership is a relation ship between the person and the thing. For ownership there must be a thing and the owner of thing. The concept of ownership was absent in the ancient society. There was also no concept of possession too. Slowly and slowly as the society developed the concept of possession also developed. The idea of ownership came into existence. So this way after the progress of the concept of ownership the person became the full owner of his property.
DEFIN ITION :- Before to define the ownership we have to discuss the various kinds of law :-
Roman Law :- As evident from history that the Roman Law was the first law in the world. It is considered the ancient law. All concepts of law begin from the period of Roman society. Under the Roman Law the concept of ownership is defined in the form of dominion that means to have the right control of a thing. The concept of ownership developed in the form of a right over the thing. Dominion is distinguished from possession. Possession means to have possession over a thing but dominos means to have a right over the thing.
HINDU LAW :- Hindu Law is also considered as the most ancient law in the world. In Hindu law the concept of ownership also has been discussed. In Hindu Law ownership is said a , “According to Hindu Law ownership means a relationship between person and a thing. Person is called owner and a thing is called property. Means a property which is in the control of a person is his property.
VIEWS OF MODERN & WESTERN JURISTS
The western jurists like Austin, Holland and Salmond defined the concept of ownership.
Austin :- According to him ownership is the relationship which exists in between the person and the thing.” This definition resembles with the definition under Hindu Law. Austin says that in ownership a person has the following relations with the thing.
1.Indefinite Use :- It means to use that thing in any way whether to use it for agriculture or for industry, residence but there is a restriction that one cannot use one’s property in such a way which destructive in the living of others.
2.Un-restricted power of dispose:- Means to transfer that thing or property according to his choice. He can sale or to mortgage even to give on lease or gift to anybody. But under art.19(2) of the Constitution reasonable restrictions can be imposed by the Govt., in the interest of public policies.
3.Un-limited duration of time :- means the right of transfer of his property will remain always in the name of owner. After his death it will go to his heirs so there is no time limits.
4.Domination :- It means to have control over the thing. For this purpose both elements of possession corpus and animus should be there. If the conditions are there between person and the thing and then the person is owner of that thing.
According to Holland: He defined the ownership as a plenary control of a person over a thing. The definition also contains the following conditions :-
1.Possession 2. Enjoyment 3. Disposal.
According to Salmond :- Salmond defines ownership as a relationship between person and the right. Right means to have a thing under possession. Thing always represents physical objects. But right always represents a thing which is not in physical existence like copy right and allowances are always thing which are called property. And which are not in physical existence.
Salmond has included all those right which are property in the concept of ownership. In view of the above it is learnt that Austin and Holland definitions are not complete. But salmond is completely perfect in his definition.
KINDS OF OWNERSHIP
There are various kinds of ownership which are as under :-
1. Corporal and Incorporeal ownership: Corporeal and incorporeal ownership also called material and immaterial ownership. Corporeal ownership is the ownership of a material object and incorporeal ownership is the ownership of a right. Ownership of a house, a table or a machine is corporeal ownership. Ownership of copyright a patent or a trade mark is incorporeal ownership.
2. Sole and co-ownership:- The general principal of ownership is that vested in one person only. But some times it vested in many persons in other words two or more person have the right of ownership. If only one person have right of ownership that known as sole ownership and where two or more persons have the right of ownership then know as co-ownership.
3. Vested and contingent ownership:- Ownership is either vested or contingent it is vested ownership when the title of the owner is already perfect. It is contingent ownership when the title of the ownership is yet imperfect.
4. Absolute and Limited ownership:- means owner is one in whom are vested all the rights over a thing to the exclusion of all or when a person has an absolute right over his property known as absolute ownership.
When there are limitations on the user duration or disposal of rights of ownership the ownership is limited ownership.
5. Legal and Equitable ownership:- Legal ownership is that which has its origin in the rules of common law. Equitable ownership is that which proceeds from the rules of equity. Legal right may be enforced in rem but equitable rights are enforced in personam.
CONCLUSION
The ownership is a relationship between person and the right. These rights include the right of possession enjoyment and disposal of the property. If all conditions are there then it is called Ownership.
DIFFERENCE BETWEEN POSSESSION & OWNERSHIP
POSSESSION OWNERSHIP
1.Possession is a primary stage of ownership which is in fact. 1. Ownership is in right.
2.Possession does not give title in the property defacto exercise of a claims 2. While in ownership it gives title in the property dejure recognisation.
3.Possession is a fact. 3. Ownership is a right and superior to possession.
4.Possession tends to become ownership. 4.Ownership tends to realize itself in to possession.
5.Possession dominion corpus and animus are necessary. 5.Ownership they are not necessary because law gives full rights.
6.Transfer of possession is comparatively easier.
7. Possession is nine points of law. 6.Ownership most of the cases involves a technical process i.e. conveyance deed etc.
7.Ownership always tries to realize itself in possession i.e. complete thing.
18 Define Custom and essentials of a valid custom. Discuss its importance as a source of law and also compare with precedents.
INTRODUCTION: Custom is a conduct followed by persons in the society. Custom is considered as the most ancient and most important source of law. Source means origin of a thing. It is also considered that law basically comes out from customs. In the past customs were prevailing for the control over the society.
Austin was the first person who discarded the value of the custom. But the historical school again gave the importance to custom. The sociological school also gives importance to law with relation to society.
In the modern times the precedents i.e. Judge made law and legislation have become over powered to that of customs. As in a case of Maduri v/s Motu Ram Linga. It was held that even custom power over the state.
VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM AS A SOURCE OF LAW.
The followings are the systems which recognized custom as a source of law :
1.Romal Law :- Roman Law is known to be the oldest one in the world. This law is mainly based upon customs of the society. Those customs which were reasonable continued them as law by the Roman jurists.
2.Hindu Law :- Hindu law is also to be considered as the most ancient law. His sources are Vedas, Sutras and Smiriies and these were mainly based on customs. All personal laws of Hindu are based upon custom that is why Lord Warren Hastings and Lord Cornwallis did not attack on customs of Indians.
Manu said One should follow the given path of their ancestors. This was nothing but the reorganization of customs.
3.Mohammedan:- Particularly ignored customs for the purpose of law. During th Muslim period in India their customs were protected by State. The British rulers in India also protected customs and personal laws which were based upon customs. The traditions which were not opposed by the prophet Mohammedan were recognized as law. In this way we can say that customs in Mohammedan law also played an important role.
4. English Law :- Which is known as common law and in the shape of un-written and based upon customs and conventions. Customs which were reasonable and not against the public policies were recognized as law under English Law.
According to Pollock, The common Law is customary law. Black stol common includes written law and un-written law.” The written law is based upon the general customs. In this way English law also gave importance to the customs as a source of law.
CLASSFICATION OF CUSTOMS
Mainly the customs are of four types :-
1.National Customs :- Those customs which are related to the nation and are applicable on the country’s people.
2. Local Customs :- Those customs which are related with a particular locality.
3. Family Customs :- Those customs which are related with a family and have application on a particular family.
4. Conventional Customs :- These customs based upon conventions e.g. a bigger part of English Law based on customs and conventions.
ESSENTIALS OF CUSTOMS
1. Antiquity :- It means oldness of the customs. The customs must be ancient. There is no limit of time for the antiquity of custom. In India there is no fixation of such time limit.
2. Reasonable :- The customs must be reasonable. It should not be un-reasonable and against the public feelings.
3. Followed :- Customs must be followed by the society. There should be no contradiction in observing customs.
4. Continuity :- Customs must be continuing from the time it was recognized as law. There should not be any break or interruption. If there is break for sometimes it does not mean that the right thing has been lost.
5. Certainty :- Customs must be certain in its nature.
6. Consistency :- There should not any confliction for its reorganization as a law.
7. Peaceful enjoyment :- Custom must be enjoyed peacefully for a long time without an disturbances.
8. Immorality:- Customs should not be against the morality.
9. Public Policy:- It must not be against the public policies or against the will of people.
10. Not against the State of Law:- Customs should not over-ride the legislation . It should not be against the law of the land.
WHEN DOES A CUSTOM BECOME LAW.
ANALYTICAL VIEW:- Austin and Gray are the supporters of analytical school. They say that a custom becomes law when it is recognized by the sovereign in the sense of positive law only.
It means that if a custom has been accepted or adopted or recognized by the sovereign then it will become a law otherwise there will be no value of the custom in judicial system of the society.
HISTORICAL SCHOOL:- Sovereign as the supporter of Historical school says that custom is a main source or base of law He says that “ consciousness of the volkgiest is the main source of law.”
Custom is superior to Judge made law or legislation. The legislation while making a law recognizes the customs of the society. The courts also while giving the decisions recognized the customs prevailing in the society.
CONCLUSION
Custom occupies an important place as a source of law even to these days because most of the material contents of developed system of law have been drawn from ancient customs. Custom is one of most fruitful sources of law. According to Analytical school a custom when recognized by State or sovereign becomes law. According to Historical school when state or courts make law they give importance to the customs. So both of the view are combining to each other and are correct for a custom as source of law.
19 Rights and duties are co-relative. Discuss. OR Distinguish between claims liberties powers and immunities also explain the correlative of each.
Introduction:- Right and duties are the very important element of law. The term ‘ Right’ has various meanings such as correct, opposite of left, opposite of wrong, fair, just and such like other expression etc. But in legal sense a right is a legally permissible and protected action and interest of a man group or state.
Definition
According to Austin :- “Right is a standard of permitted action within a certain sphere. He further define right is a party has a right when others are bounds to obligesed by law to do or not to do any act.”
According to Salmond : “ It is an interest recognized and protected by the rule of justice / law.”
According to Gray:- “Right is not an interest itself but it is the means by which the enjoyment of an interest in secure.”
According to Prof. Allen:- “ The essence of right not a legal guarantee in itself but a legally guaranteed power to realized an interest.”
ELEMENTS OF RIGHTS
1. Subject:- The subject of a right is concerned with the person legal and artificial or a group who legally is entitled to seek the privilege and benefit of against other. In other words the subject is that the person whom the right is vest.
2. Content:- This is the subject matter of the right along-with the nature and limits of that right.
3. The person of Incidence :- It means that the person upon whom falls the corrective duty.
OBJECT:- The object of the right may be material or immaterial determinate or indeterminate.
CHARACTERSTICS OF RIGHTS
1. RIGHT is a general o specific type of claim, interest or such like expression of the people in a State.
2. The right is duly recognized and approved by the State through its agencies.
3. A legal right is expressed a deep correlation with a corresponding duty, liability or disability on the part of those against whom such right is conferred.
4. A right may has its independent existence and type of assemblies with other rights.
5. Basic philosophy or the fundamental concept of right remains permanent but with the time being it is subjected to incorporate the allied changed in it.
6. The realization and scope of a legal right depends upon the type of society and the nature of interest.
THEORIES OF RIGHTS:- There are two main theories of legal right:-
1. Will theory:- The will theory says that the purpose of law is to grant the individual i.e. self expression or positive declaration. Therefore right emerges from the human will. The definition of right given by Austin and Holland, “ that the will is the main elements of a right.” Pollock says, “ that right in term of will.”
2. The Interest Theory:- Interest is the basis of right. A great german jurists defines about the legal right as, “ A legally protected Interest.” According to him the basis of right is “Interest” and not “will”.
The definition of law is in term of ‘purpose’ that law has always a purpose. In case of right the purpose of law is to protect certain interest and not the wills or the assertions of individuals. These interests are not created by the State but they exist in the life of the community itself.
TYPES OF RIGHTS
1. Primary and secondary Right: They are known by Antecedent and remedial rights names also.
2. Perfect and imperfect Right: Means which has a correlative positive duty.
3. Negative and Positive Right:-Positive means related to duty whereas negative means not related to duty.
4. Right in Rem & Personam:
5. Right is repropria and Right is Re-aliena.
6. Vested and contingent right.
7. Propriatory and personal Right.
8. Equitable and legal right.
Duty
Introduction:- The term duty may be used in various form as an obligation, as responsibility and accountability. There are some scolers who define Duty as following:-
Definitions of Duty:- According to Gray, Duty is the act of or forbearance which an organized society used to impose on people through state in order to protect the legal right of other. According to Rose Duty is the Pre-dicament of person whose act are liable to be control with the assistance of the State. As per Hoffield The duty is the correlative of Right.
Classification of Duties:- Duty classified into two categories. There are as follows:-
Duties
Positive And Negative Duties Primary and Secondary Duties
1. Positive and Negative Duty:- A positive duty implies some act on the part of person on whom it is imposed. Negative duty implies some forbearance on the part of the person on whom it is imposed.
2. Primary and Secondary duty:- A primary duty is that which exists perse and independent of other duty. A secondary duty is that duty whose purpose to enforce some other duty.
Essentials of duty:- There are following essential of duty:-
a. It may be dependent and independent.
b. It consists an obligation on the part of someone and confirm a privilege upon other.
c. The concept of duty is affirmed and protected by the law of the land where it exist.
d. The concept of duties is a changing process which arises from time to time, place to place and circumstances to circumstances.
e. Duty in most of the cases creates an absence of right against some person.
f. Duty may be fundamental, legal or moral in character.
Relation between Right and Duties:- The following objects describes the correlation between right and duties:-
i. A right is indispensible without any duty.
ii. A duty and right has separate and independent existence.
iii. A right procreates duty and vice-versa.
OR Your choice
Even though right and duties are opposite points but there is a great relation between two relations. The right and duties has a relation of Father and Child, Husband and Wife because there is no father without child and no wife without husband. So right and duties cannot be separated form each other.
Right/Claim Liberty or privilege Power Immunity
Duty No claim Liability Disliability
(Jural opposites) (Jural correlative)
Conclusion:- Right and duties are correlative of elements of each other. There is no right without duty and there is no duty without right. These are recognized by law for maintaining the society very well.
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