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Jurisprudence

Schools of Jurisprudence

Hindu Law is believed to be of divine origin, being derived from the Vedas, which are the revelations of the Almighty Himself. Law, as understood by the Hindus, is a branch of dharma, i.e., the duties and the rules of conduct (moral, religious and political) enjoined by the God Himself.

Hindu Law really emanated from books called the Smritis, e.g., Manusmriti, Yajnavalkya Smiriti and the Smritis of Vishnu, Narad, Parashar, Apastamba, Vashisht, Gautam, etc. These Smirits were not laws made by parliament or some legislature. They were books written by certain Sanskrit Scholars in ancient times, who had specialized in law. [Justice Markandey Katju]

Yajnavalkya says that “the Shruti, the Smiriti, the approved usage, what is agreeable to one’s soul or good conscience and desire sprung from due deliberation are ordained the foundation of dharma (law).”

According to Mayne, “Hindu Law is the law of Smiritis as expounded in the Sanskrit commentaries and digests which, as modified and supplemented by customs, is administered by the courts.”

The Dharmashastras dealt with both procedural and substantive law, offering rules for recording and evaluating evidence, while at the same time, they described the laws that governed economic transactions and those that regulated the relationship between masters and servants, to name a few.

Artha Shastra and Manu Smiriti are considered as significant treatises as far as the legal system is concerned. In ancient Indian societies, an independent school of legal practices existed. Some general principles in connection with the judicial proceedings state that in case of disagreement between two texts of Smiriti, justice according to usage is to be followed. In case of conflict between a text of Smiriti associated with the dharma and one relating to artha, the former prevails. 

Hierarchy of courts – According to Brihaspati Smiriti, there was a hierarchy of courts in ancient India beginning with the family courts and ending with the king’s court. The lowest was the family arbitrator. The next higher court was that of the judge; the next of the chief justice who was called praadivivaka or adhyaksha; and at the top was the king’s court. The jurisdiction of each was determined by the importance of the dispute, the minor disputes being decided by the lowest court and the most important by the king. The decision of each higher court superseded that of the court below.

According to Vachaspati Misra, “the binding effect of the decisions of these tribunals, ending with that of the king, is in the ascending order, and each following decision shall prevail against the preceding one because of the higher degree of learning and knowledge.”

The King as the Chief Adjudicator – The king was the chief adjudicator of both trial and appellate matters (civil and criminal), which he heard directly. The king was obliged to follow the dharmashastras, although they conferred upon him the power to recognize customary rules, abrogate old laws and promulgate new ones. [Ashutosh Dayal Mathur: Medieval Hindu Law: Historical Evolution and Enlightened Rebellion – Oxford University Press]

The king was required to decide cases in open trial and in the courtroom, and his dress and demeanor were to be such as not to overawe the litigants. He was required to take the oath of impartiality, and decide cases without bias or attachment.

According to Katyayana, “the king should enter the courtroom modestly dressed, take his seat facing east, and with an attentive mind hear the suits of his litigants. He should act under the guidance of his Chief Justice (praadivivaka), judges, ministers and the Brahmana members of his council. A king who dispenses justice in this manner and according to law resides in heaven.”

Grounds of Litigation – Manu mentions following grounds on which litigation could be instituted—

  1. Non-payments of debts;
  2. Deposits;
  3. Sale without ownership;
  4. Partnership;
  5. Non-delivery of gifts;
  6. Non-payment of wages;
  7. Breach of contract;
  8. Disputes between owners and herdsmen;
  9. Law concerning husband and wife;
  10. Law on boundary disputes;
  11. Verbal assault and physical assault; and other form of violence;
  12. Theft;
  13. Crimes against women;
  14. Partition of inheritance; and
  15. Gambling and betting.

The development of Roman law comprises more than a thousand years of jurisprudence – from the Twelve Tables (c. 439 BC) to the Corpus Juris Civilis (AD 529) ordered by Emperor Justinian-I. This Roman law, the Justinian Code, was effective in the Eastern Roman (Byzantine) Empire (331-1453). It also served as a basis for legal practice in Continental Europe, as well as in Ethiopia, and many of the former colonies of European nations, including Latin America.

In Germany, Roman law practice remained longer, having been the Holy Roman Empire (963-1806); thus, there was great influence upon the civil law systems in Europe. Moreover, Roman law also influenced the English and North American Common Law.

Division of Society – The citizens of Rome were divided into two classes – patricians, the elite class who ruled Roman society, and plebeians, the common people. A group of patrician men called ‘pontiffs’ made decisions and ruled in questions of customary law. Over time, plebeians came to see that because of the disparity between their positions, patricians tended to have some advantage in the legal decisions made by the pontiffs who were their equals in status and power. Hence, the dissatisfaction grew on the issue of the arbitrariness of the decisions made. The plebeians raised the demand of writing down of the laws, so that they could better anticipate the decisions made by the patrician pontiffs and understand their basis in the established law.

Emergence of Jurists – However, Rome’s most important contribution to European legal culture was not the enactment of well-drafted statutes, but the emergence of a class of professional jurists and of a legal science. This was achieved in a gradual process of applying the scientific methods of Greek philosophy to the subject of law, a subject which the Greeks themselves never treated as a science.

Among the famous jurists of the republican period was Quintus Mucius Scaevola. He wrote a voluminous treatise on all aspects of the law, which was very influential in later time.

Servius Sulpicius Rufus, a friend of Marcus Tullius Cicero was the other noted jurist.

Thus, Rome had developed a very sophisticated legal system and a refined legal culture when the Roman republic was replaced by the monarchical system of the principate in 27 BC.

Jurists’ Contribution – The jurists performed different functions. They gave legal opinions at the request of private parties. They advised the magistrates who were entrusted with the administration of justice, most importantly the praetors. They helped the praetors draft their edicts, in which they publicly announced at the beginning of their tenure, how they would handle their duties, according to which specific proceedings were conducted. Some jurists also held high judicial and administrative offices.

Praetor’s Edict – The jurists also produced all kinds of legal commentaries and treatises. Around AD 130, the jurist Salvius Iulianus drafted a standard form of the praetor’s edict, which was used by all praetors from that time onwards. This edict contained detailed descriptions of all cases, in which the praetor would allow a legal action and in which he would grant a defense. The standard edict thus functioned like a comprehensive law code, even though it did not formally have the force of law. It indicated the requirements for a successful legal claim. The edict therefore became the basis for extensive legal commentaries by later classical jurists like Paulus and Domitius Ulpianus.

Praetor was a title granted by the government of Ancient Rome to men acting in one of two official capacities: the commander of an army; or an elected magistrate, assigned various duties.

The Law of the Twelve Tables – The Law of the Twelve Tables was the ancient legislation that stood at the foundation of Roman law. The Law of the Twelve Tables formed the centerpiece of the constitution of the Roman Republic and the core of the mos maiorum (custom of the ancestors).

Lex Aquilia – Another important statute from the Republican era is the Lex Aquilia of 286 BC. It may be regarded as the root of modern tort law.

Custom of the Ancestors – The Roman Republic’s constitution or mos maiorum (custom of the ancestors) was an unwritten set of guidelines and principles passed down mainly through precedent. Concepts that originated in the Roman Constitution live on in Constitutions to this day. Examples include checks and balances, the separation of powers, vetoes, filibusters, quorum requirements, term limits, impeachments, the powers of the purse, and regularly scheduled elections. Even some lesser used modern constitutional concepts, such as the block voting found in the electoral college of the United States, originate from ideas found in the Roman Constitution. [Law in Ancient Rome: Crystalinks]

The Justinian’s Code – Like other Roman emperors before him, Justinian-I faced the challenge of maintaining control and creating a sense of unity among far-flung territories where other cultures and languages besides Latin (such as Greek) predominated.

One of the ways that Justinian-I sought to unify the empire was through law. He formed a commission of jurists to compile all existing Roman law into one body, which would serve to convey the historical tradition, culture, and language of Roman law throughout the empire. This compilation is sometimes referred to as Justinian’s Code.

Revival of Roman Law – The compilation of Justinian is widely considered the emperor’s greatest contribution to the history of Western society. Though largely forgotten for several centuries after the fall of the Western Empire, Roman law experienced a revival that began at the University of Bologna, Italy, in the eleventh century and spread throughout Europe. Surviving manuscript copies of Justinian’s compilation were re-discovered, systematically studied and reproduced.

Corpus Juris Civilis – These new editions of the compilation, which were given the name Corpus Juris Civilis (body of civil law), became the foundational source for Roman Law in the Western tradition. All later systems of law in the West borrowed heavily from it. This included the civil law systems of Western continental Europe, Latin America, and parts of Africa and to a lesser, but still notable extent, the English common law system, from which American law is principally derived. [The Regents of the University of California: The Robbins Religious and Civil Law Collection]

By the 16th century, Roman law was in force throughout most of Europe. However, in the process of adoption, many Roman rules were mixed up or changed to better suit the legal norms of the various European nations. In general, the rules that were applied by the European countries at that period were identical to the Roman law from Justinian’s time. Nonetheless, the law that has evolved was common to the most of the European countries and so it was called Jus Commune, i.e., the Common Law. In this form, Roman law was in force in many countries until national codes were later created in 18th and 19th centuries. For example, in Germany, Roman law remained the primary legal source until 1900 when the German Civil Code was first introduced.

Today, the Roman law has been replaced by modern codes. These codes were created by transmitting the rules of Roman law and placing them in a framework, which provided a modern, systematic order. This is particularly true as regards the German Civil Code. This is equally true concerning the most modern European legal systems and Constitutions. However, some Roman rules were implemented directly and even today; they apply to all of us.

Shariah is the Islamic Law – Shariah, an Arabic word meaning ‘the right path’, refers to traditional Islamic Law. The Shariah comes from the Quran, the sacred book of Islam, which Muslims consider the actual word of Allah. The Shariah also stems from the Prophet Muhammad’s teachings and interpretations of those teachings by certain Muslim legal scholars. Muslims believe that Allah revealed his true will to Prophet Muhammad, who then passed on Allah’s commands to humans in the Quran.

The Quran sets down basic standards of human conduct, but does not provide a detailed law code. Only a few verses deal with legal matters. During his lifetime, Prophet Muhammad helped clarify the law by interpreting provisions in the Quran and acting as a judge in legal cases. Thus, Islamic Law, the Shariah, became an integral part of the Muslim religion. Since the Shariah originated with Allah, Muslims consider it sacred.

Fiqh – Fiqh means knowledge about Islamic legal rulings from their sources. Deriving religious rulings from their sources necessitates the mujtahid (an individual who exercises ijtihad) to have a deep understanding in the different discussions of jurisprudence. A faqih must look deep down into a matter and not suffice himself with just the apparent meaning, and a person who only knows the appearance of a matter is not qualified as a faqih.

The term ‘fiqh’ has also been used to denote the appropriate understanding to know the essence of the commandments (ahkam) prescribed in Quran and Sunnah. Technically, the term fiqh refers to the knowledge of deducing laws and verdicts from the basic sources of Shariah namely Quran and Sunnah.

The Quran – Quran provides a general theoretical framework containing universal and practical rules, principles, exhortations and commandments, which are manifest, sublime and blessed. The Quranic verses have been classified into three categories as per the plan of instruction—

(a) The articles of faith;

(b) The ethical and legal instructions; and

(c) The regulations concerning state and society.

The Sunnah – The Sunnah consists of all the authentic reports of the acts, utterances and tacit approval of the Prophet Muhammad. 

Quran is definitive as well as final and authoritative as a whole and in its detail. Sunnah is neither definitive nor final or authoritative in its detail but must be taken as a whole. There are three possible relations of Sunnah to Quran—

  1. The first is where Sunnah agrees with Quran in all respects, and in such a case, the two corroborate and reinforce the given point.
  2. The second is where Sunnah explains and illustrates Quran.
  3. The third is where Sunnah legislates on a matter on which Quran is silent. No other possibilities exist for Sunnah can never run counter to Quran.

Schools of Jurisprudence

Views of Burlamqui—According to Burlamqui, “Natural law comprises rules, which so necessarily agree with the nature and state of man that, without observing their maxims, the peace and happiness of society can never be preserved. They are called natural laws because a knowledge of them may be attained merely by the light of reason, from the act of their essential agreeableness with the constitution of human nature.”

Views of Kelson—According to Kelson, “the natural law doctrine undertakes to supply a definitive solution to the eternal problem of justice, to answer the question as to what is right and wrong in the mutual relations of men.” The answer is based on the assumption that it is possible to distinguish between human behaviour, which is unnatural; hence contrary to nature, and forbidden by nature.

Views of John Finnis—According to John Finnis, a theory of natural law claims to be able to identify conditions and principles of practical right-mindedness, of good and proper order among men and in individual conduct. According to him, natural law consists of two sets of principles—

(a) The first consisting of certain basic values that are good for human beings;

(b) The second consisting of the requirements of practical reasonableness.

Views of John Dias—In the opinion of Dias, the natural law thinkers includes a moral element in their conception of law since they think of it as an indispensable factor in the continued existence and functioning of law. Positivists exclude a moral element since they are mind-full of the necessity of having clear-cut means of identifying laws for practical purposes of the present, unclouded by impalpable moral considerations.

Views of John Salmond—Salmond opines that natural law is the idea that law consists of rules in accordance with reason and nature. Ordinary human law is only truly law as far as it conforms to these principles. These principles of justice and morality constitute the natural law. Man should live according to nature. Since the distinctive feature of man’s nature is his endowment with reason, he should live according to the dictates of reason.

Views of John Cicero—While defining or explaining the scope of natural law, Cicero, said as following—

“True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times. There will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and because of this very fact, he will suffer the worst penalties, even if he escapes what is commonly considered punishment.”

The word ‘positivism’ was probably first used to draw attention to the idea that law is ‘positive’ or ‘posited’, as opposed to being ‘natural’ in the sense of being derived from natural law or morality.

Legal positivism is a philosophy of law that emphasizes the conventional nature of law—that it is socially constructed.

According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. Formal criteria of law’s origin, law enforcement and legal effectiveness are all sufficient for social norms to be considered law. Legal positivism does not base law on divine commandments, reason, or human rights.  As a historical matter, positivism arose in opposition to classical natural law theory, according to which there are necessary moral constraints on the content of law.

Legal positivism does not imply an ethical justification for the content of the law, nor a decision for or against the obedience to law. Positivists do not judge laws by questions of justice or humanity, but merely by the ways in which the laws have been created. This includes the view that judges make new law in deciding cases not falling clearly under a legal rule. Practicing, deciding or tolerating certain practices of law can each be considered a way of creating law.

Drawbacks of positivism—Legal positivism has been criticized by the naturalists as sterile and inadequate because it fails to consider moral considerations.

The theory conflicts with ordinary usage by denying the name ‘law’ to rules which are generally classified as legal, e.g., rules of customary law, international law and much of constitutional law. None of these rules originates from a sovereign command – customary law springs from habitual behaviour rather than from precept, international law is a system of customary rules originating from state practice, and constitutional law consists in part of conventions, which have evolved without legislation or judicial decision.

Legal moralism is the view that the law can legitimately be used to prohibit behaviors that conflict with society’s collective moral judgments even when those behaviors do not result in physical or psychological harm to others. According to this view, a person’s freedom can legitimately be restricted simply because it conflicts with society’s collective morality. Thus, legal moralism implies that it is permissible for the state to use its coercive power to enforce society’s collective morality.

Patrick Devlin argues that a shared morality is essential for the existence of a society—

“If men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if, having based it on common agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed, the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price.”

Formalism refers to the view that judging is a rule-bound activity. According to formalists, judges apply the governing law to the facts of a case in a logical, mechanical, and deliberative way. For the formalists, the judicial system is a “giant syllogism machine,” and the judge acts like a “highly skilled mechanic.” Once lawmakers produce rules, judges apply them to the facts of a case without regard to social interests and public policy.

Formalism owes much of its existence to the notion of law as legal science. This school of thought views law as a rational, gapless, complete, and almost geometrical system. It is a self-encompassing system in a sense that all that is needed can be found within the system, within the legal rules.

Posner writes that—

“Legalists decide cases by applying pre-existing rules or, in some versions of legalism, by employing allegedly distinctive modes of legal reasoning, such as ‘legal reasoning by analogy.’ They do not legislate, do not exercise discretion other than in ministerial matters (such as scheduling), and do not look outside conventional legal texts, mainly statutes, constitutional provisions, and precedents (authoritative judicial decisions), for guidance in deciding new cases. For legalists, the law is an autonomous domain of knowledge and technique.”

Ethical School of Jurisprudence deals with the principles of law, as they ought to be in an ideal state in future. It deals with the first principles of the ethical significance and adequacy of law and it expounds the first principles of law, as it ought to be. Ethical Jurisprudence points to reasonableness and soundness of law, and through law, justice.

Ethical School deals with the matters, such as the conception of law and, hence, of justice, their respective relationship, how justice is maintained in a society through its system of law, the distinction between law and morality and how each can contribute towards the ends of justice and principles, which deal with the fundamental legal conceptions and ethical significance.

Noted jurists like Grotius, Immanuel Kant and Hegel regard law neither as the arbitrary command of a ruler nor as the creation of historical necessity. To them, the law is the product of human reason and its purpose is to elevate and ennoble human personality.

Law and its Kinds

It is said that the questions, which arise for consideration and determination in a court of law, are of two kinds, i.e., the questions of law and questions of facts. Nevertheless, it is also true that the eye of law does not infallibly see things as they are. It is so partly because of deliberate design and partly by the errors and accidents of historical development, law and fact, legal theory and the truth of things.

Legal presumptions and legal fictions are among the category of deliberate designs of not seeing the things as they are.

Legal presumptions—Legal presumption means the situations where one fact is recognized by law as sufficient proof of another fact whether in truth it is sufficient for that purpose or not. Such legal presumptions are of two kinds being either conclusive or rebuttable—

(a)  A conclusive presumption constrains the courts to infer the existence of one fact from the existence of another fact even though this inference could be proved false.

(b) A rebuttable presumption requires the courts to draw such an inference even though there is no sufficient evidence to support it, provided that there is not sufficient evidence to establish the contrary inference.

Thus, a negotiable instrument is presumed to be given for value; a person not heard of for 7 years is presumed to be dead and an accused person is presumed to be innocent.

Legal fictions—Another method by which the law sometimes deliberately departs from the truth of things for sufficient or insufficient reasons is the use of the device known as legal fiction.

Maine said that the law is brought into harmony with social needs by three instrumentalities—legal fictions, equity and legislation which appear to be in historical order in which they are enumerated.”

To hold a thing to exist which does not exist in fact is a fiction. A thing is assumed to exist only to meet certain needs in the social development, which necessitates certain charges in the law. However, when the change in law is not desirable and expedient, certain assumptions are made based on which the law assumes certain things to exist, which do not exist in reality and thus adopts itself to new circumstances. Such legal assumptions are fictions.

Conditional legislation—When the Act contains within itself the whole legislation on the matter with which it deals and only subsidiary parts are left to any external authority, it is conditional legislation.

Delegated legislation—If the Act does not contain within itself the whole legislation on the matter and the power is given to an external authority to legislate about matters not dealt with, it is delegated legislation. The power, which could not be delegated, was legislative power and power, which could be delegated, was power to execute or carry that legislation into effect.

The test is whether the Act contained within itself the whole legislation on the matter. If the Act does not contain the whole matter, but there is delegation to a foreign authority to legislate in the matter, it is delegated legislation. On the other hand, if  the legislature has exercised its discretion and judgment in regard to every matter and has only left the execution of carrying into effect all that they have done to a foreign power, that is only conditional legislation.

Law can generally be classified as public law or private law—

Public law—Public law is such part of the civil law as deals with the Constitution and working of the States, the functioning of its various departments, the public relations between the State and its citizens. It includes the rights, duties and liabilities of the State and its citizens inter-se, the working of the administrative department of the government, Acts, rules and regulations relating to public health and welfare and so on.

Public law applies to everyone. It is law that has been created by some legitimate authority with the power to create law, and it has been handed down to the people within its jurisdiction. The law making authority itself is also subject to those laws, because no one is above the law. If the law is violated, penalties can be levied against the violator. These penalties are also handed down from some recognized source of authority, like the judiciary.  

Private law—The rest of the civil law is private civil law, dealing with matters such as contracts, insurance, carriage, freight, damages for personal injuries, civil wrongs, agency, bailment, sale of goods, partnership, regulation of companies, insolvency, arbitration, negotiable instruments, transfer of property, trust, trustees and the like.

Private law is typically understood to be law that is binding on specific parties. For instance, parties to a contract are involved in a private law agreement. The terms of the contract apply to the parties of the contract, but not to anyone else. If the parties have a contract dispute, they may use dispute-resolution methods to resolve it. This is because both parties of the contract recognize the judiciary as a legitimate authority that can resolve the contract dispute.

Thus, matters concerning more with the public than the individual are within the scope of public civil law. Private law, on the other hand, is concerned more with the matters relating to the individual than the public. Public law deals more with issues that affect the general public or the state itself, whereas, private law focuses more on issues affecting private individuals, or corporations.

Law—Law is a collection of legal rules meant for determining people’s behavior. The State carries them into effect when someone infringes these rules. Law can be defined as a body of rules and principles of procedure and conduct established and enforced by a political authority. Laws, according to Sir John Salmond are “the body of principles recognized and applied by the State in the administration of justice.”

Morality—Morality is a set of values common to society, specifying the correct course of action in a situation and the limits of what society considers acceptable. Morals are normally just beliefs, values and principles that are set by society or part of a society, determining what is right and wrong. Observation of these norms will make one feel moral (or virtuous), while their breach will implicate feeling of guilt. Morality can be defined as a code of conduct advanced by a society or religion or adopted by an individual to guide his or her own behavior.

In essence, as Kant asserts, “morality is a personal concern, whereas law is a societal concern. Law governs conduct within our society. Morality influences personal decisions relating to individual conduct.”

In very broad terms, the law and morality have a common goal, being the lessening of social harm or evil. The law is always guided, to some extent, by a moral compass and morality continues to influence decision-making and the day-to-day administration of justice in every corner of the legal system.

Distinction between law and morality—Law can be distinguished from morality on the ground that a legal system is comprised of specific, written principles and rules interpreted by officials who are charged with the duty of applying appropriate penalties and awarding appropriate remedies.

Writers like Austin, Kelson and others have tried to makes a clear distinction between law and morality although the two are bound to be affected by each other. Law alone cannot regulate the whole of the life of man and the same is true of morality. Law is concerned with the external actions of individual and morality with their inner conscience.

  1. Law and morality have different origins. Laws are created by Parliament. Morals evolve as a feeling within society. No formal creation exists. Laws can be instantly made and instantly cancelled. It can exist one minute and the next it does not, e.g., when the Act is repealed. Morals form slowly and change slowly as society’s attitudes change.
  2. Breach of law leads to some form of punishment or remedy enforced by the State. Breach of morality leads to some form of social condemnation; there is no involvement of the State.
  3. The law is created and enforced. Morality is taught and is engrained from the very childhood of a person. Thus, morality comes from within the human personality, and law comes from the outside to regulate people’s behaviors.
  4. In law, man is considered as a person because he has a free will; in morals, we have to do with determining the will towards the good.
  5. Law considers man only as far as he lives in community with others; morals give a guide to lead him even if he were alone.
  6. Law has to do with acts as far as they operate externally; morals look to the intention, the inner determination and direction of the will.
  7. Law governs the will as far as it may be external coercion; morals seek a free self-determination towards the good.

All questions that arise before a court of law can be divided into two kinds. Some of them are questions of fact and others are questions of law.

Question of fact—The term ‘question of fact’ has more than one meaning. In a general sense, it includes all questions, which are not questions of law. Everything is a matter of fact, which is not a matter of law.

According to Salmond, “a question of fact means either any question which is not pre-determined by a rule of law or any question except the question what the law is or any question which is to be answered by the jury instead by the judge.”

It narrower sense, a question of fact is opposed to a question of judicial discretion which includes questions as to what is right, just, equitable or reasonable. Evidence can be led to prove or disprove a question of fact. A question of fact is a matter of fact as opposed to a matter of opinion.

Question of law—According to Salmond, the term ‘question of law’ is used in three different senses—

(1) In the first place, it means a question the answer to which has already been declared by some rule or principle, which the courts consider; they ought to apply without regard to their personal opinions as to its desirability.

(2) Secondly, a question of law implies as to what law is—which arise because of uncertainty of law on a particular point.

(3) As regards the third sense in which this term is used, reference is made to the general rule that questions of law are for the judges to decide.

According to Salmond, all matters and questions which come before a court of justice are of three kinds, viz.—

(1) Matters and questions of law;

(2) Matters and questions of judicial discretion;

(3) Matters and questions of fact.

In the first case, it is the duty of the court to ascertain law and decide the case accordingly.

In the second case, the court can exercise its discretion and decide dispute according to what it considers to be right, just or equitable or reasonable.

In the third place, it is the duty of the courts to weigh the evidence and then come to its own conclusions.

Distinction—The distinction between the question of law and the question of fact may be given as under—

(a) Question of law is decided by the judge while the question of fact may be decided by the jury.

(b) Question of law for decision requires no evidence while the question of fact can be decided only on the basis of evidence of that fact.

(c) A question of law is a matter of opinion by the court while a question of fact is a matter of fact and not of opinion.

(d) Law consists of the abstract rules while the facts are the raw material on the basis of which law creates certain rights and duties.

Mixed question of law and fact— Mixed question of law and fact refers to a question which depends on both law and fact for its solution. In resolving a mixed question of law and fact, a reviewing court must adjudicate the facts of the case and decide relevant legal issues at the same time.

Questions of fact are questions about what actually took place between the parties. And questions of mixed law and fact are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what negligence means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. [Canada (Director of Investigation and Research) vs Southam Inc., (1997) 1 SCR 748]

A mixed question of law and fact arises when the historical facts are established, the rule of law is undisputed, and the issue is whether the facts satisfy the legal rule. [See Pullman Standard vs Swint, 456 US 273, 289 n 19 (1982)]

Mixed questions of law and fact generally require the consideration of legal concepts and the exercise of judgment about the values that animate legal principles. [See Smith vs Commissioner, 300 F 3d 1023, 1028 (9th Cir. 2002)]

Substantive law— Substantive law defines how the facts in the case will be handled, as well as how the crime is to be charged. Substantive law also determines whether a crime or tort has been committed and decide whether the evidence supports the charges. It also defines our rights and responsibilities as citizens. There are elements of substantive law in both criminal and civil law. In essence, substantive law deals with the substance of the matter.

Procedural law—Procedural law consists of the set of rules that govern the proceedings of the court in criminal as well as civil and administrative proceedings.

Distinction—

  1. Substantive law is concerned with the ends, which the administration of justice seeks. Procedural law deals with the instrument by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relation in respect of the matters litigated.
  2. Substantive law defines right; the procedural law determines the process for remedies or procedure for enforcement of rights in court.
  3. Substantive law concerns the purpose and subject matter of litigation, the procedural law governs the process of litigation.
  4. Substantive law relates to matter outside the court, the procedural law deals with affairs in the courts.
  1. Salmond’s theory includes imperative aspect, i.e., idea of might in law as imperative rules are also applied by the courts in the administration of justice. Salmond was of the view that might aspect must be there in rules—whether they belong to church, college, family, society or the country.
  2. Salmond’s theory includes right aspect, i.e., the idea of right justice, equity and good conscience as the courts of the country administer equity also.
  3. In Salmond’s definition, connection between law and justice is brought out, as the purpose of law is administration of justice.
  4. Salmond defined law in abstract sense (law in general) and not in concrete sense (law in particular). His theory is of law and not of a law while Austin’s theory is of a law and not of law.
  5. Salmond’s definition includes custom, legislation and precedents in law. It also includes personal laws, law of the country and constitutional law in particular.

It can be said that Salmond’s definition is definitely an improvement over the theory of Austin. Nevertheless, it is also true that the definition of law as given by Salmond is not without shortcomings. There are following drawbacks in his definition—

  1. Salmond’s definition is in concrete sense and not in abstract sense. It is said that although Salmond’s definition covers a wide area and various kinds of law, but it does not include international law. His definition is of civil law (law of the land) and not of law.
  2. He was unduly impressed by administration of justice. Hence, his theory appears to be of justice rather than of law.
  3. Courts are interpreters of law, not the makers of law. Nevertheless, Salmond relies too much on courts of justice.
  4. Law does not originate from the courts, but is something already found in custom, convention, habit or some enactment of the legislature, which the court of law is asked to accept, adopt, confirm, explain, interpret or reject. A statute is law as soon as it is passed and it need not wait for recognition by the courts before becoming entitled to the name ‘law’. The courts recognize a statute because it is law.

Sources of Law

The doctrine of binding precedent is alternatively known as the doctrine of stare decisis. Stare decisis is a Latin term for “to stand by things decided.”  In short, it is the doctrine of precedent. The courts cite stare decisis when an issue had been previously brought before the court and a ruling on that issue had been pronounced.

Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”

Stare decisis is not fully applicable in India—The Supreme Court is not bound by its own earlier decisions; so also the High Courts are not bound by their earlier decisions. However, to say this is to utter a technicality because in fact, the judges are most reluctant to depart from earlier decisions. The Supreme Court has laid down that except for compelling reasons, it will not depart from its earlier decisions. In Indian jurisprudence, an outstanding  example is the historic case of Golaknath which laid down in the year 1966 that even in future, Parliament cannot amend fundamental rights in Part III of the Constitution. This decision was expressly overruled in Keshavanand Bharati’s Case, known as the Fundamental Rights Case, which was decided by the Supreme Court in 1973.

Broadly speaking, ratio decidendi of a case means the principles laid down in the case. Ratio decidendi is the reason for deciding, as reasoning is the soul of decision-making process. The precedents are decided on the basis of ratio decidendi, which means “the rule of law on which a judicial decision is based.”

In giving judgment in a case, the judge will set out the facts of the case, state the law applicable to the facts and then provide his decision. It is only the ratio decidendi (the legal reasoning or ground for the judicial decision), which is binding on later courts under the system of judicial precedent.

During the course of judgment, a judge is called upon to decide that particular case. However, while deciding that particular case, the judge might discuss incidentally other related questions of law; he might express his opinion on a matter of law, which is not necessary to decide in that particular case. For example, while deciding a case of trespass under civil law, while discussing injunction, the judge might compare the remedies of injunction with that of writ petitions and might make comments about the circumstances in which the writ petition may be given in the Constitution of India as compared to injunctions. In such a case, the comments upon writ petition and trespass in civil law are not necessary to decide the specific issue in the case. In common language, the obiter dicta can be said to be “observations made by the judge in course of deciding a particular case which observation are incidental because they do not affect the ultimate decision in that case in any way.”

Thus, those propositions of law which make the judgment, but which are not necessary to be decided in that particular case, are known as ‘obiter dicta’. They are also referred to as obiter or only dicta or both.

Although the granting of equitable relief is discretionary, it is not arbitrary. Instead, the law of equity developed equitable doctrines and maxims, which the court applies, guide its exercise of discretion to grant equitable relief. Some of the common equitable maxims are summarized as following—

(1) Those who come to equity must come with clean hands—The clean hands maxim requires that those who come to equity must come with clean hands; that equity will not grant relief where the seeker of equity has committed a wrong.

The defence of ex turpi causa illustrates an example of this maxim. It means that an illegal contract cannot be enforced. In other words, a plaintiff cannot profit from committing a wrong. If the cause of action arises from an illegal contract, there will be no equitable relief available to a person seeking to enforce such a contract. This maxim focuses on the past conduct of the seeker of equity, and requires him to demonstrate that he has clean hands.

(2) Those who seek equity must do equity—Equity requires those who seek equity to do equity. This maxim requires that the person seeking equitable relief must act fairly towards the person whom he seeks the relief against. This maxim deals with the future conduct of the seeker of equity, as the court may grant equitable relief to the plaintiff on such terms and conditions as the court deems appropriate. Thus, the plaintiff is obligated to fulfill such terms and conditions.

(3) Equity considers done that which ought to be done—Another maxim states that “equity regards as done that which ought to be done.” This means that where a party was required to perform an obligation such as in contract law, equity would apply to consider the parties to be in the relative positions they would have been in, if the obligation had been performed. As such, this maxim applies in favour of the party who was entitled to performance of a contract.

For example, where pursuant to a contract, Aryan was required to do something for Sachin, but failed to do so, or completed only part performance of the contract. The equity would apply to place the parties in the positions they would have been in, relative to each other, if Aryan had actually completed his obligations. Thus, this maxim applies where the defendant was bound in equity to perform an obligation for the plaintiff and focuses on the effect or consequences that would have flowed from completion of the original contract.

(4) Equity follows the law—The equitable maxim that “equity follows the law” explains that equity does not replace statute law or common law. Instead, equity applies where there is no remedy by virtue of statute or common law. However, equity must be consistent with statute or common law.

For example, this maxim applies where a trustee holds legal title to a parcel of land for the benefit of another (the beneficiary). In this case, the law recognizes that the trustee holds legal title, which at common law is unfettered legal ownership.

This means, the trustee has all the rights of ownership including the rights to use, enjoyment, and disposal of the land. However, the trustee holds the land for the benefit of the beneficiary, thereby creating a trust. At law, a trust is an unexecuted use, a conveyancing device such that legal title is conveyed to the trustee to hold the land for the benefit of the beneficiary. Equity cannot operate to change the legal title from the trustee to the beneficiary. Therefore, equity imposes obligations on the trustee to act for the sole benefit of the beneficiary, thereby protecting the equitable rights of the beneficiary in that land.

(5) Delay defeats equity—This maxim deals with the defence of laches to equitable relief. Laches means unreasonable delay such that the granting of relief would produce inequitable results. Laches is more than mere delay, and instead implies neglect to do what ought to have been done. Thus, the maxim means that a party who delays in enforcing rights will not be able to seek equitable relief.

The equitable maxim that delay defeats equity is a general, but not an absolute principle. For instance, the defence of laches does not apply where the plaintiff failed to enforce his rights because he was not aware of them unless the concept of constructive knowledge applies.

In this sense, the defence of acquiescence to equitable relief is related to the defence of laches. The defence of acquiescence applies to bar equitable relief where the plaintiff either affirmed or abandoned his right, thereby implying that the plaintiff had knowledge of his right.

It should also be noted that the defence of laches and defence of acquiescence would not apply where the plaintiff does not in fact suffer any prejudice or change in position because of the delay itself. Furthermore, the maxim “delay defeats equity” will not apply where the conduct of the defendant is such as to render the success of the defence to be inequitable. For example, the defendant does not himself come to equity with clean hands because the delay was caused by the fraud of the defendant.

(6) Equity does not suffer a wrong without a remedy—When the law bestows a right, it also extends a remedy that can be granted in equity. Conversely, a court of equity will not supply a cause of action where none exists in the law. Where there is a right there is a remedy. This idea is expressed in the Latin Maxim ubi jus ibi remedium. It means that no wrong should go un-redressed, if it is capable of being remedied by the courts. This maxim imports that where the common law confers a right, it also gives a remedy or right of action in case there is infringement of that right.

If a party has destroyed, lost or waived his right to an equitable remedy by his own act, this maxim will not apply. It will not apply, if there is a moral infringement being incapable of enforcement.

In Ashby vs White, (1703) 92 ER 126, a qualified voter was not allowed to vote. He, therefore, sued the returning officer. It was held that, if the law gives a man a right, he must have a means to maintain it, and a remedy, if he is injured in the enjoyment of it.

(7) When equities are equals the first in time prevails—Equitable interests usually rank in the order in which they were created. Therefore, where there are two competing equitable interests in property, the usual rule is that the interest that was created first will have priority over the interest that was created later.

In English Law, the order of priority between two competing interests in the same property depends primarily on whether they are legal or merely equitable interests. Where both interests are equitable; or both legal, the basic rule is that the two interests rank in the order of their creation. In the case of equitable interests, the order of priority may be reversed in special circumstances, but where the equities are equal, the first in time prevails. An example of the “special circumstances” arises where an interest has been appropriately registered: registration ensures that an interest has priority over an unregistered interest. [Macmillan Inc. vs Bishopsgate Trust, (1995) 1 WLR 978, 999]

This rule of ‘first in time’ only applies regarding two equitable interests. A subsequently acquired legal interest may have priority over a previously created equitable interest, if a bona fide purchaser for value without notice acquired the legal interest. In such a situation, the legal interest has priority over the equitable interest in both equity and at law. [Macmillan Inc. vs Bishopsgate Trust, (1995) 1 WLR 978, 999]

(8) Equality is equity—The maxim “equality is equity” means that where there are equitable interests in property, equity presumes that they are equal interests. This maxim is founded on fairness. This maxim is also explained as “equity delighteth in equality”, which means that as far as possible, equity would put the litigating parties on an equal level so far as their rights and responsibilities are concerned.

This maxim aims to distribute property and losses in proportion to the claims and liabilities of the persons concerned. It applies to a situation where two or more people are entitled to the same property and there is no other basis for division. Those who are entitled to property should have certainty and fairness of equal division. Equity in this sense does not mean literal equality, but proportionate equality.

Justice Fry said, “When I say equality, I do not mean equality in its simplest form, but which has been sometimes called proportionate equity.”

In general, the maxim will be applied whenever property is to be distributed between the rival claimants and there is no other basis for division. Where, for example, husband and wife operate a joint bank account; each spouse may deposit or withdraw money. Upon divorce, the maxim applies. They share 50-50. The authority is that equity does not want to concern itself with the activities of a husband and wife – to go into the bedroom and make deep inquiries. Hence, there is equal division. If children are involved, that may be considered.

Theories of Law

Stoics regarded ‘nature’ as a living organism. The material world represented its body and the divine or universal reason its pervading soul. Man being the part of the universal nature was supposed to be guided by ‘reason’. Thus, Stoicism viewed natural law as only a manifestation of the ‘divine reason’ in man. It encouraged man to live in harmony with the world organism of which he was but a part. In short, it was the end and purpose of human life for which man had to strive to make his existence happy and conformable to natural laws. This outlook naturally led the Stoics to view nature as fulfilling the legislative function for the human race.

Upon the conquest of Greece by Rome, the Stoic philosophy made rapid progress in the Roman Empire. The Romans, before coming into contact with the Greeks, developed a system of their own, based on reason. This they had derived from jus gentium (Law of Nations). Still the Stoic doctrine afforded to them the more comprehensive unifying principle underlying the diverse phenomena. They found them very useful for the purposes of consolidating their ever-growing empire.

Natural law principles could easily be applied by courts to the diverse population. The natural law being universal and free from the influence of time and place could be binding on the entire human race. In Rome, jus civil (civil law, i.e., law of the land) was for civitas, i.e., the citizens and jus gentium (i.e., law and usages prevailing amongst various people of the world) was for foreigners and citizens both. This jus gentium was nothing but jus natural.

According to Sir Henry Maine, “Jus gentium was nothing but jus natural seen in the light of a peculiar theory” and that theory was Stoic’s Theory.

In Rome, there was unification of jus gentium and jus natural. Justinian, the great Roman Jurist used terms ‘jus gentium’ and ‘jus natural’ interchangeably. The two were fused together by equity.

Administration and Theories of Justice

Administration: the responsibility of the king—Administration of justice, according to the Smritis, was one of the most important functions of the king. The Smritis stressed that the very object with which the institution of kingship was conceived and brought into existence was for the enforcement of Dharma (law) by the use of might of the king and also to punish individuals for contravention of Dharma and to give protection and relief to those who were subjected to injury. The Smritis greatly emphasized that it was the responsibility of the king to protect the people through proper and impartial administration of justice and that alone could bring peace and prosperity to the king himself and to the people as well.

Justice equal to dharma—In ancient India, justice was equal to dharma. Adhering and upholding justice was to uphold dharma, which speaks of the eternal values of peace and tranquility in society. The concept of dharma is very wide and comprehensive; it is unique as there is no English equivalent for the word dharma.

Dharma means truth and righteousness and it integrated civil, moral and spiritual values and supplied the basic impetus for human development towards higher perfection.

In the Upanishad, the concept of dharma was clearly elaborated—

“The Brahman has created the most excellent dharma. Dharma is the force of force or power of power. There is nothing higher than dharma. Henceforth, even a weak man rules a stronger person with the help of dharma, as with (the help of) a King. This dharma is (equivalent to) truth. Hence, if a man speaks truth, they say, he speaks the dharma. And, if he speaks the dharma, they say, he speaks the truth.”

Dharma in the sense of social duty—Kautilya in his Arthashastra used the word ‘dharma’ in the sense of social duty as well as moral and civil law based on truth. According to Kautilya, an accomplished king must be devoted to dharma. The king has to obey the customary and sacred laws of the land. He is called the promulgator of dharma. The king can punish and fine the transgressor of dharma. And the righteous performance of his duties ensures heaven for him. In view of Kautilya, “if a king does not adhere to the moral code, he is bound to suffer a collapse.”

Hierarchy of the courts—The king’s court was the highest court of appeal as well as an original court in cases of vital importance to the state. In the king’s court, the chief justice and other judges, ministers and elders, and representatives of trading community advised the king.

  • Next to the king’s court was the court of chief justice, which consisted of a board of judges to assist him.
  • In towns and districts, the courts were presided over by the state officers, under the authority of the king, to administer justice.
  • In addition to the regular official courts, certain popular courts also existed in ancient India. During the Vedic period, the Sabha probably worked as a popular court. The village elders settled the disputes regarding boundaries of property. Yajnavalkya mentions three types of popular courts—Puga, Sreni and Kula.

Kinds of punishments—Different types of punishments were in vogue. These included the fines, imprisonment, banishment, mutilation and death sentence. The fines were the most common punishment. While deciding upon the punishment, the judges took into account the nature of the crime, the motive of the accused, his age and status in society. Banishment was usually inflicted on the privileged classes. The death sentence was imposed on murderers, traitors, dacoits and persons guilty of heinous sex crimes.

King’s command was supreme—The Mughal Rulers enjoyed unlimited powers in the process of administration of justice. The king was considered the agent of God on this earth. His command was supreme. Anybody who raised a voice against his authority was severely dealt with.

During the reign of Mughal Emperor Jahangir, justice delivery was regarded as the most important duty of the state. To ensure easy and obstacle free access to justice, a gong was hung outside the palace of the emperor. The person seeking justice had to just pull the chain in order to have his grievances redressed by none other than the emperor himself.

Division of kingdom into provinces—The whole kingdom was divided into provinces. However, the number of the provinces differed under different Mughal rulers. For example under Akbar, there were 15 provinces while under Jahangir and Aurangzeb, their number rose to 17 and 21 respectively.

States officials—Each province was under a governor, also known as Nizam, Naib, Subedar or Wali. The governor was a sort of mini king within his own province. He was responsible for the maintenance of law and order, control of local army, realization of state dues and provision of justice.

“The Mughal officials were made delegates of the emperor, who could take away their powers at any time he pleased, though while in office they wielded extensive powers. The emperor appointed and dismissed them. They were mere instruments of the royal policy. The emperor who was the fountain of honour and the asylum of the universe granted powers to his officials as a matter of grace.”

—RP Khosla

Role of the Qazis—The Muslim criminal law administered by the Qazis was divided into two parts—

(1) That portion of the Islamic Canon Law, which dealt with religious infringement, was applied to Muslims only; such as drinking, marrying within the prohibited degree, apostasy etc. For such offences, Non-Muslims were not held liable to punishment under the laws of the Shariah.

(2) That portion of the Islamic Criminal Law, which punished the act, which constituted crimes in the estimation of all nations, was applied to Muslims and Non-Muslims, alike, e.g., adultery, murder, theft, robbery, assault etc.

In the provinces, there were separate officials to decide civil and criminal cases. While the Governor or Siphasalar decided the criminal cases, the Diwan decided the civil cases. However, the chief judicial authority in the province was the Qazi. The Mufti and the Miradi assisted the Qazi. While the Qazi investigated the evidence, the Mufti and Miradi assisted him in expounding the law and delivering the judgments respectively.

The court of the Qazi had both civil and criminal jurisdiction. The cases of both the Hindus and the Muslims could be tried by this court. However, while deciding the cases of the Hindus, the court was expected to apply the Hindu Law. The Qazis were expected to be honest and impartial. In reality, however most of the Qazis were corrupt and dishonest.

The present mode of access to justice through court functioning in India is based on adversarial legalism. In this system, the parties are responsible for initiating and conducting litigation except in criminal cases wherein the State initiates the proceedings.

Hierarchy of courts—At the apex of the entire judicial system exists the Supreme Court of India with a High Court for every State, and under High Courts, there is a hierarchy of subordinate courts.

Every State is divided into districts presided over by a District and Sessions Judge, who is the principal civil court of original jurisdiction and can try all offences including those punishable with death. He is the highest judicial authority in a district. Below him, there are courts of civil jurisdiction, known in different States as munsifs, sub-judges, civil judges and the like. Similarly, criminal judiciary comprises chief judicial magistrate and judicial magistrates of first and second class.

Panchayat courts also function in some states under various names like Nyaya Panchayat, Panchayat Adalat, Gram Kachheri, etc., to decide civil and criminal disputes of petty and local nature. Different state laws provided for jurisdiction of these courts.

Article 21 dealing with ‘life and personal liberty’ guarantees a life of dignity and certainly a life above mere animal existence. Despite the fact that incarceration denudes some of the fundamental rights of the prisoner, but incarceration does not destroy all of his fundamental rights as guaranteed under the Constitution.

Mr. Justice White of United States of America has aptly stated “But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections, when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.”

Mr. Justice Douglas has observed, “Every prisoner’s liberty is, of course, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial. Conviction of a crime does not render one a non-person whose rights are subject to the whim of the prison administration. Therefore, the imposition of any serious punishment within the prison system requires procedural safeguards.” [Shyokaran vs State of Rajasthan, 2008 Cri LJ 1265]

Similar judicial thinking has also been expressed by the Hon’ble Supreme Court in DB Patnaik vs State of Andhra Pradesh, 1975 Cri LJ 556. Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights, which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to practice a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. Nevertheless, the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the right guaranteed by Article 21 of the Constitution that “he shall not be deprived of his life or liberty except according to procedure established by law.”

“A sentence of imprisonment does not automatically extinguish a prisoner’s legal rights. The ordinary civil and criminal law operates in prisons. In spite of his imprisonment, a convicted, prisoner retains all civil rights which are not taken away expressly or by necessary implications.”

—Halsbury’s Laws of England

Prisoner’s right to earn livelihood—The Supreme Court in Olga Tellis Case, AIR 1986 SC 180, has laid down that “the right under Article 21 comprehends the right to earn one’s livelihood.” A person, because he is in prison, does not lose this right so long as his right under Article 21 can be exercised by him consistently with his imprisonment. Work is necessary for the preservation of life. In England, therefore, a prisoner is not only entitled, but he is also bound to work and he is paid for his work at the rates approved by the Secretary of State. The right of the prisoner to earn his livelihood and to preserve his life thus imposes a corresponding obligation on the State to provide work to the prisoner and pay for it. A valid law enacted by the legislature can only take such right of the prisoner away.

The State

Independent state is sovereign—An independent state is sovereign, internally as well as externally, and acknowledges no obedience to any other state.

Dependent state is subordinate—On the contrary, a dependent state is subordinate to another larger state to which it owes allegiance. It has no separate existence, but forms part of a greater state to whose government it is subject. It has only a limited capacity for foreign relations and is an imperfect subject of international law. The exact position of a dependent state can only be determined by reference to treaties and to the extent, its subordinate position has been recognized by the other states.

Salmond holds that “a dependent state is also a state, if it possesses the essential organization by maintaining a separate legislature, judicature and executive and if it fulfills the primary functions of a state by maintaining order and justice.”

A dependent state, according to Oppenheim, “is a subject of international law, if it possesses control over foreign relations.”

While UK, USA and India are independent, States of California and New York are dependent states being part of USA.

Unitary state—A unitary state is one where the supreme legislative power of the state resides in one central authority. It is not made up of territorial divisions. A unitary state thus possesses a single sovereign organ, exercising dominion over the whole territory comprised within the state. The Great Britain is an example of a unitary state.

Composite state—A composite state, on the other hand, is one, which is itself an aggregate or group of constituent states. Composite states can be sub-divided into imperial, federal and confederated states—

(a) In an imperial state, the Central Government possesses in itself the entire sovereignty of the composite state and the constituent states possess no portion of this sovereignty.

(b) In a federal state, on the other hand, the sovereignty of the entire state is divided between the central or federal government and the governments of the several constituent states. The USA and India are examples of federal states where the supreme government is divided by the Constitution in definite shares between the central or common government and the several constituent states.

(c) A confederation is constituted by a number of full sovereign states, linking together by an international treaty into a union with organs of government extending over the member-states, but not over the subjects of those states. They unite by means of a pact for the purposes of mutual cooperation or defense; each constituent member retaining its sovereignty and separate identity. Such confederation is not a state. In a confederate state, the members remain free even to enter into treaties and declare war on their own account. A confederation is merely an alliance between independent states, which does not create any effective common organization.

Composite state—A composite state is a group of constituent states. There are two types of composite state. If the composite state consists of only one region, it is called non-orthogonal composite state. If a composite state has two or more than two regions, it is called orthogonal composite state.

Confederate state—In confederacy, there is an agreement between two or more states or nations by which they unite for their mutual protection and good. This term is applied to such agreement between two independent nations, but it is also used to signify the union of different states of the same nation, as in the confederacy of the states.

Unitary state—A unitary state is one where the supreme legislative power of the state resides in one central authority. It is not made up of territorial divisions. A unitary state thus possesses a single sovereign organ, exercising dominion over the whole territory comprised within the state. The Great Britain is an example of a unitary state.

Composite state—A composite state, on the other hand, is one, which is itself an aggregate or group of constituent states. Composite states can be sub-divided into imperial, federal and confederated states—

(a) In an imperial state, the Central Government possesses in itself the entire sovereignty of the composite state and the constituent states possess no portion of this sovereignty.

(b) In a federal state, on the other hand, the sovereignty of the entire state is divided between the central or federal government and the governments of the several constituent states. The USA and India are examples of federal states where the supreme government is divided by the Constitution in definite shares between the central or common government and the several constituent states.

(c) A confederation is constituted by a number of full sovereign states, linking together by an international treaty into a union with organs of government extending over the member-states, but not over the subjects of those states. They unite by means of a pact for the purposes of mutual cooperation or defense; each constituent member retaining its sovereignty and separate identity. Such confederation is not a state. In a confederate state, the members remain free even to enter into treaties and declare war on their own account. A confederation is merely an alliance between independent states, which does not create any effective common organization.

Prof. Duguit defined the state as “a body of men dwelling upon a determined territory of which the stronger impose their will on the weaker which power is called sovereignty.”

Prof. Duguit denies the existence of the state itself by regarding it as a fiction. He has done a great service by emphasizing that state is not a personified entity, and that it does not possess any quasi-divine or transcendental attributes. The realistic nature of his approach is well brought out in the men who, in fact, in a society are materially stronger than others are. The acts are done by the force of the group or, at least, the majority of it. It satisfies the sense and need for social solidarity and maintenance of justice, as it exists from time to time.

According to Prof. Duguit, a state becomes merely a particular group, which does not make positive law, but has its activities as a matter of law regulated by regles de droit (Rule of Law) emanating from solidarity and sentiment of justice. There is consequently no such thing as the imposition of will by the state.

Law must limit a state—Duguit was in favor of a strong check on the abuse of state power through the principles of establishment of strict principles of state responsibility. He sought to strip the state and its organs of all sovereign rights and other attributes of sovereignty with which the traditional doctrine of public law had bestowed upon it. Duguit rejects the notion of the personality of state and says that a realist examination shows merely that certain persons govern and others obey. Law must limit a state.

Law arises because men live together and can only live together. Law does not depend on the will of the ruler. Duguit says that a rule becomes law even before it is recognized by state provided it has behind it the effective support of the community.

Origin of state prior to man—Aristotle holds the view that the state originated prior to the man. The state is complete and self-sufficient. Like family, the state is also natural. Like family, the state cannot check human development. The state being a logical development of the family, the state cannot be different from it. It is wrong to believe that the state was association of isolated individuals, but it was culmination of widening circles of human associations based on human wants.

In the words of Barker, “According to Aristotle, though chronologically, the individual came first, but teleologically, the state”.  An individual became man only after joining the state and before joining the state, he must have lived as an individual, but certainly not as a human being. In this manner, the state is prior to the individual as well as the society and the family.

State is natural—Aristotle does not agree with the view of Sophists that the political society was the product of convention alone and it was not the product of nature. Aristotle suggests that authority of the state is moral and the state is natural. The duty of the citizens lays in willingly obey the commands of the state without expecting any reward for such obedience. The people embraced the state so that their needs were satisfied.

The state is natural association for it develops organically from the most primitive but natural associations, i.e., the household and the village. It is the end of them and is, therefore, a creation of nature. It is necessary for man who is by nature a social or political animal. Man fully develops his personality in the state, of which he is natural, integral and organic part. The individual is to the state, as a part is to the whole.

Human development possible only in the state—Human beings can achieve self-sufficiency only in the state. Self-sufficiency, according to Aristotle, does not mean merely economic sufficiency, but also moral development and conditions necessary for human development.

State exists for common welfare—Aristotle believes that the state exists not merely for the protection of individual rights. Contrarily, the state also exists for common welfare. The state is a partnership in all sciences, a partnership in all art, and a partnership in every virtue and in all perfection. The state is a natural destination of man, and as such, the men who thought of state, were greatest benefactors.

State is a living organ and is continuously growing—State, according to Aristotle, is persistently developing and growing. The state is not stagnant and static. The state is a living organ having compound character.

State is supreme association—Aristotle says that the state came not only prior to the individual, but also prior to all the associations. The state is “association of associations”. It would be more proper to say that the state is supreme association. The state is the community of highest nature. Its aim is the promotion of highest good. The state is that kind of association, which represents plurality of vocations. The state also represents persons who are different from each other, have different interests, but they have combined.

The prince or the government to protect the state—Machiavelli freed political science or theory from the clutches of religion and morality. He was not interested in high moral or religious principles. His main concern was power and the practical or political interests of the state. He was of the view that the primary concern of the prince in particular and government in general is to protect the interests of state. It should be noted that Machiavelli never denounced virtue, morality and religion. However, what he emphasized is that the domain of morality and religion is quite different from that of politics and the prince must maintain it in his dealings with politics.

State to gain power—The central concept of Machiavelli’s political philosophy is the power of the state and, without power, the state is almost nothing. Studying history, he formed the opinion that “only the power can save Italy”. If there is any message in The Prince (a political treatise written by Machiavelli) then it is that “the sole objectives of the prince shall be to acquire power to make the state self-sufficient in all respects so that it can compete with other states.” This is called the reason of the state.

The prince must be virtuous—In The Prince, Machiavelli emphasized that the prince must follow a virtue, which is “creative”—creative in the sense that the virtue of the prince would be able to maintain the state. With the help of his virtues, the prince would fight off his enemies. Machiavelli used the word ‘virtue’ not in any conventional sense. The supreme objective of a prince is always to maintain the unity of his state and to bring it under good administration. People of the state always demand that they are not to be oppressed and exploited.

States should essentially expand—Machiavelli considers that the states not believing in expansion are sure to die. He, therefore, stresses that the state must try to expand and be self-sufficient. The state is the highest form of human association. It came into being for the reason that the human beings were selfish, weak and of fickle mind and there was the need to curb this tendency of them. There is no limit to the desires of the people and there is the need that the state should check such desire and, at the same time, satisfy human desire as far as possible.

No role of church in state affairs—Machiavelli stressed that the church had no dominant role to play in the affairs of the state. A good ruler, in his view, should take full advantage of the religious feelings of the people as humility and submission.

State to maintain strong army—The state, in order to become strong, must maintain a strong army consisting of its own citizens. The army must always be ready, not only to defend its own territory, but also to expand the same.

Dictatorship, the most suitable form of government—In his Discourses (a work of political history and philosophy written by Machiavelli) Machiavelli makes it perfectly clear that the ruthless rule of a new prince is only one of the forms of government. Machiavelli was quite acquainted with various forms of government including democracy or republicanism. Nevertheless, he preferred dictatorship or despotism as the most suitable form of government.

In the words of Sabine, Machiavelli was of the view that, “There is practically no limit to what statesman can do. He can tear down old states and build up new, change forms of government, transplant populations and build new virtues in the characters of his subjects.”

Plato, in his book Republic, has portrayed what should be an ideal state. While discussing an ideal state, he has merely attempted to lay down what an ideal state ought to be without considering whether achieving that ideal state was practicably possible or not.

Am ideal state not bound by customs and conventions—The ideal state, as portrayed by Plato, was not bound by any customs and conventions. It was a romance of free intelligence. There was superiority of virtue, which was of supreme value in the matter of administration of the state.

Ruler to be wise and virtuous—The ideal state, according to Plato, can be achieved when the ruler is wise and virtuous. In his kind of ideal state, only a few reasonable people should rule. Such an arrangement, he said, was logical and natural in which a few wise should have the right to rule over the large number of ignorant.

Art and literature of very high class—In an ideal state, the art and literature should be of very high class. There should not be any inferior and immoral literature coming before the people. The art and literature should have the characteristic of promoting morality, wisdom and intelligence.

Equal treatment to all—The king, in an ideal state, should do all that is necessary for developing the character of both the men and women. They all should be promoted as useful citizen of the state without there being any distinction in the matter of their development.

Administration of justice—Justice is an integral part of the state. Different sections of society should live in perfect harmony and none should encroach upon the rights of others.

Existence of functional specialization—Plato stressed upon the arrangement of functional specialization. No individual should perform such work, which does not suit his temperament. Everyone should indulge in the performance of such work alone which is assigned to him. Everybody should gain perfection in the task assigned to him.

Skilled soldiers—An ideal state should rely upon skilled soldiers for its defense. Plato believed that the soldiers should be specially trained for their task and be of the very high physical and mental fitness.

State controlled educational arrangement—Education should be in strict control of the state. Education should prepare philosopher king. It should also cultivate the minds of the people in the right direction. Educational system should be such that it is promoting social welfare.

Classes in society—Ideal state should have three classes—rulers to rule the state, soldiers to defend the state and peasants and artisans for economic advancement of the state. Each section of society should strive for attaining perfection in the field assigned to it.

Communism of wife and children—Plato asserted that communism of wife was most essential for a healthy state. Family, in his view, was a great hurdle for the unity of the state. If there is affection towards the family, there is bound to be division of loyalties. The philosopher and the soldiers should not develop affection for a particular family. They should consider the entire society as one large family having common interest and requiring uniform care.

Communism of property—Plato believed that there should be communism of private property at least in the case of rulers and the soldiers. If, both the economic and political powers come in the hands of the ruler, he may turn out to be a tyrant. If private property comes in the hands of soldiers, they may deviate their attention in the matter of defending their country from foreign aggression.

Approach of the state should be totalitarian—An ideal state should be totalitarian in its approach. The people should merge in the state. No individual can be above the state. Every individual is to be integral part of the state. An ideal state has to look after the welfare of its people.

Institution of slavery should be retained—It is necessary for an ideal state that it retains the institution of slavery. The slaves should be given hard work to be performed.

Matriarchal society—A matriarchy is a society, in which females, especially mothers, have the central role in political leadership, moral authority, and control of property.

According to the Oxford English Dictionary (OED), “matriarchy is a form of social organization in which the mother or oldest female is the head of the family, and descent and relationship are reckoned through the female line; government or rule by a woman or women.”

According to William A. Haviland, “matriarchy is rule by women.”

Criticism of matriarchal theory—Sir Henry Maine criticizes the matriarchal theory on the ground that it ignores the mightiest of all passions—sexual jealousy.

Darwinal observes, “Promiscuous intercourse in a state of nature is extremely improbable.”

Prof. Lowie observes, “Sexual communism as a condition taking the place of the individual family exists nowhere at the present time; and the argument for its former existence must be rejected as unsatisfactory.”

Critics also hold the view that the state was created by several factors, of which the family was one. Therefore, this theory makes only a partial study of the origin of the state. Force, religion, politics, family and contract were all there to contribute to the growth of the state.

Stephen Leacock says—“Here it may be a patriarchal family; there it may be a matriarchal family, but there is no denying the fact that family is at the basis of the state.”

Plato and Aristotle propounded patriarchal theory of state. They held the view that in primitive society, the eldest male member was supreme in his family group. There were “neither assemblies for consultation nor themistas or dooms, but each exercised jurisdiction over his wives and children.”

Sir Henry Maine is also a strong supporter of this theory. According to him, the city is a conglomeration of several families, which developed under the control, and authority of the eldest male member of the family. The head or father of the family wielded great power and influence upon the other members of the family. His command was carried out in the household. This patriarchal family was the most ancient organized social institution in the primitive society.

Edward Jenks, another supporter of the patriarchal theory is of the view that “the foundation of the state was caused by three factors – male kinship, permanent marriages and paternal authority.”

Thus, the salient feature of the patriarchal theory is that the families grew through the descendants of the father, not the mother.

Criticism of patriarchal theory—The patriarchal theory as the origin of the state is subjected to the following criticisms—

  • In the opinion of several critics like Meclennan, Morgan and Edward Jenks, the matriarchal family and polyandry were the basis of the state.
  • There are the critics of the view that the origin of the state is due to several factors like family, religion, force, political necessity, etc. Therefore, by identifying the origin of the state with family, one makes the same fallacy as taking one cause instead of several causes. JC Frazer holds the view that “human society is built up by a complexity of causes.”

According to Edward Jenks, tribe rather than family was the beginning of the state; this he said based on his studies in Australia and Malaya Archipelago.

State is bliss of God—The conception of the divine creation of the state may be traced back to remote antiquity. It was universal belief with the ancient people that the king is the representative of God on earth and the state is bliss of God. Thus, the king had both political and religious entity.

According to MacIver, the earliest rulers were a combination of priest, magic man, and the king.

There are many references in the Old Testament which state that God appoints, dismisses, and even slays rulers. Medieval writers used these references to affirm supremacy of the Catholic Church over political affairs.

The Protestant Reformation gave a new impetus to the divine theory. It was declared in the Augsburg Confession (1530) that all authority, government, law and order have been created and established by God himself.

Bossuet advocated the theory of divine origin to support the despotism of Louis-XIV.

James-I, in his book The Law of Free Monarchies asserted this theory, claiming that kings derived their authority directly from God

Criticism of divine origin theory—The theory is considered as dangerous, as it allowed monarchs to have unlimited power.

(a) Gilchrist says that the state is a human institution organized in an association through human agency. Modern political thinkers cannot accept the view that God has anything to do with the creation of the state. It does not stand the commonsense of the moderns that God selects anybody to rule over the state.

(b) The divine theory is impractical because an incompetent ruler will continue to rule under the divine shield. There were some incompetent rulers like James-II of England and Louis-XVI of France, who were replaced by the people. This could not have happened, if the divine theory was to be accepted.

As the theory of evolution and the social contract theory became more popular, the theory of the divine origin of the state eventually died out.

RIGHTS AND DUTIES

Hohfeld presents us with an analytical scheme, which splits rights into four different categories of jural relationships and exemplifies a number of analytical distinctions between various legal positions.

Hohfeld’s eight terms are arranged in two tables of ‘correlatives’ and ‘opposites’ that structure the internal relationships among the different fundamental legal rights.         

JURAL OPPOSITES

Right

Privilege

Power

Immunity

No-right

Duty

Disability

Liability

A privilege is the opposite of a duty; a no-right is the opposite of a right. A disability is the opposite of a power; an immunity is the opposite of a liability

JURAL CORRELATIVES

Right

Privilege

Power

Immunity

Duty

No-right

Liability

Disability

‘Correlatives’ signifies that these interests exist on opposing sides of a pair of persons involved in a legal relationship. If someone has a right, it exists with respect to someone else who has a duty. If someone has a privilege, it exists with respect to someone else who has no-right. If someone has a power, it exists with respect to someone else who has a liability. If someone has an immunity, it exists with respect to someone else who has a disability.

A right can be enforced by a lawsuit against the person who has the correlative duty. A privilege negates that right and duty, and typically would be asserted as an affirmative defence in the lawsuit. A power is the capacity to create or change a legal relationship. For example, when someone make an offer of a contract, that gives the offeree the power to create a contract by accepting the offer (or not). If the power to create the contract is exercised, then both parties have rights and duties with respect to each other. Courts have power, only if plaintiffs or prosecutors exercise their power to commence a lawsuit. Sovereign states are immune because courts lack power over them, in which case, courts are said to have a disability with respect to sovereigns.

If I own property, it means that I have various rights with respect to the thing constituting my property—the bundle of sticks or rights. I probably have the right to exclude and everyone else in the world has a correlative duty not to use my property. Some people may have a privilege, however, as to fly over it. I also have power with respect to my property because I can create rights in others, as by transferring some or all of the property to them, as by creating an easement, which gives the grantee certain rights vis-a-vis others and certain rights and privileges vis-a-vis me.

OWNERSHIP

The right of ownership is the most complete or supreme right that can be exercised over anything. As Hibbert observes, it consists in fact of four rights viz.—

(1) Using the thing;

(2) Excluding others from using it;

(3) Disposing of the thing; and

(4) Destroying it.

Austin brings out the comprehensive nature of ownership when he defines it as “a right availing against the world as a whole, i.e., it is a right in rem, which is indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration.”

However, Markby observes, “ownership should not be regarded as an aggregate of rights.” It is in fact only a single comprehensive right. If all the rights over a thing were centred in one person, the person would be the owner of the thing and ownership would express the correlation of such a person concerning that thing.

Thus, the difference between ‘right of ownership’ and ‘ownership of a right’ is not of substance, but of degrees of expression. It is a way of expression that we say that we own a right or a thing or we say that we are the owner of that thing or we say that we possess right of ownership.

Salmond’s view in this connection has been that, in its generic sense, ownership signifies the relation between the person of inherence and the right of object of ownership. If my right is to a term of 10 years in the land of another, I own that right. It is known as ownership of a right. If I have a right to the land itself, then my right is a comprehensive right, which exhausts the juridical significance or the thing or object of the right. It is called as right of ownership.

Person possessing is the owner of the property—The natural law theory is based on the principle that one who possesses the object is the owner of the property. It provides that, when an ownerless thing is being possessed by someone, then that person becomes the owner of that property.

The Roman jurists took the view that title to property arose from ‘natural acquisition’ by occupatio or specificatio (manufacture or creation). This theory is really based on the notion that the abstract nature of things is such that, if external objects are discovered, controlled and applied to specific desired purposes of an individual, title in such external objects naturally inheres in the individual.

According to Blackstone, “natural law theory provides that one, who starts making use of a thing, acquires an interest in that thing.”

According to Grotius, “all the things were originally without an owner and whoever occupied them became the owner.”

Grotius points out that originally all things were res nullius; that the community then agreed to divide material goods between individuals, and that, goods subsequently discovered became the property of the discoverer who had reduced them to his control. Finally, it was inferred from the nature of the control exercised over things that private ownership involved the right of disposition.

The essence behind the occupation theory is that, given that all material resources are given to mankind in common, such material resources become the private property of individuals through the consent of or agreement with the rest of mankind. The division of property takes place by reference to agreements. Such agreements can be express, that is, a clear acceptance by a group of individuals that material resources, for example land or animals, will be distributed amongst themselves on a mutual understanding. In the absence of such express agreements, an implied agreement could be found on the simple basis of first occupation.

Critical evaluation—Occupation is only effective when there has been a clear act of appropriation and which has been communicated to the whole world. Pursuit and acts, which fall short of such an unequivocal act of appropriation, are insufficient because of the problem of assigning possession when there are two or more overlapping efforts to take occupation.

The labour theory of property, also known as the labour theory of appropriation, labour theory of ownership, labour theory of entitlement, or principle of first appropriation, is a theory of natural law. According to this theory, property originally comes about by the exertion of labour upon natural resources. The theory holds that “one may gain whole permanent ownership of an un-owned natural resource by performing an act of original appropriation.”

Person applying his labour on plot of land—Land in its original state would be considered un-owned by anyone, but if an individual applied his labour to the land by farming it, for example, it becomes his property. Though the earth and all the creatures are common to all men, every man has a property in his own person to which nobody has any right, but he himself. The labour of his body and the work of his hands, we may say, are properly his. Therefore, where a person appropriates a land or any one of its fruits, he has mixed his labour with, and joined to it; such thing is his own and thereby makes it his property. This is because he has removed it from the common state of nature and has placed it into something which is exclusively his own.

The labor theory of property does not only apply to land itself, but to any application of labor to nature—For example, Lysander Spooner says, “an apple taken from an un-owned tree would become the property of the person who plucked it, as he has labored to acquire it.” He says, “The only way, in which the wealth of nature can be made useful to mankind, is by their taking possession of it individually, and thus making it private property.”

  • John Locke argued that the right to private property was one of the natural rights of an individual and consequently protected by natural law. The right was natural, not in the sense that every individual was born with the right to property, rather, the right was acquired through conduct, which is natural to man.
  • Private property rights were acquired by natural, moral and rationale conduct, which individuals left to their own devices, would perform. As such, private property was acquired separately and did not arise through the prescriptive law of the state.
  • Locke maintained that it was God and not sovereign that gave property, and thus, private property existed even before sovereign and state. The role of government was to protect the right of property along with other rights such as the right to life and liberty.

Critical evaluation—A fundamental criticism of the Locke’s labor theory of property is that it, in practice, values a particular type of labor and land use, i.e., agriculture over all others. It thus does not recognize usage of land, for example, by hunter-gatherer societies as granting rights to ownership.

Marx analyses private property in the context of the effects that it has on workers, namely the proletarians. He acknowledges different social classes; and how the minority bourgeoisie own the means of social production. This appropriation has in turn alienated the majority of people from the fulfillment of freedom.

Class struggle in society—The history of all the societies in the world is the history of class struggles between the slaves and freemen, feudal lords and serfs or vassals, the bourgeoisie and the proletariat. These struggles are always between those who control the means of production and those who do not. Hence, they have to depend on the former for their livelihoods by selling their labor. These relations were not always based on equal or even fair exchange of labor and wages or other form of payments. The slave’s labor was freely exploited. The serf was forced to toil for a meager reward and the products of his labor taken away by the feudal lord. The proletariat would receive a wage that would not cover the bare minimum of his needs. In effect, private property served and is serving as a means of exploitation of the slave by the slave owner; of the serf by the landowner; and of the proletariat by the bourgeoisie. Hence, private property is the evil that has to be abolished.

Evil role played by ownership—The Marxist theory of ownership draws attention to the evil role it has played. It begins with individual working with its own tools and raw materials. Later, the profit accumulated through trading manufactured products elevates him to position to provide the tools and raw materials, and get other people to provide the labor. The manufactured products however remain in his ownership, not in that of the laborer, and he continues to trade it as his own property.

Exploitation of workers—It is the concept of ownership that enables the exploitation of workers. Ownership of the means of production, tools and raw materials, becomes the source of power over persons for private profit. It is private ownership of land, resources, and the means of production, which Marx believes, forces workers to sell their labor power. Private owners become rich, powerful and free, while the workers become poor, weak, and enslaved. 

Bourgeoisie are the modern capitalists—Marx asserts that the bourgeoisie are the modern capitalists who own the social means of production, and who are the employers of wage-laborers. On the other hand, the proletariats are the laborers that work for wages in order to survive. “Communists” as Marx refers to the movement conformed by the proletarians, have gathered with the political goal of abolishing the capitalist regime.

Critical evaluation—Some writers compare Marx with a child, who wants everything, but does not want to pay the price. He would like to have the wealth and abundance that modern industry with its wage labor and specialization can provide him with, but he does not want to specialize himself – and thereby give up the freedom to choose between all the other options – or work for others.

  • Marx has a problem with the relationship between community and individualism; he does not know which leg to stand on. He tells us repeatedly that the proletarian workers are immensely social and want nothing more than to do everything in common.

However, when they actually come together to implement large projects, they will be hampered by alienation, because they cannot stand overall guidelines, specifications, standards, control and deadlines, as they impede their ability to ‘objectify their individuality’ in the product.

POSSESSION

The ‘possession in fact’ is a relationship between a person and a thing—The things one possesses in his hand or which one has in his control like clothes he is wearing, objects he is keeping in his pocket etc. are the things regarding which  it can be said that he is in possession of the things in fact. To possess, one would have to have a thing under his physical control. If one captures a wild animal, he gets possession of it, but if the animal escapes from his control, he loses possession. It implies that things not amenable in any manner to human control cannot form the subject matter of possession, like one cannot possess sun, moon or the stars etc.

Extending the above concept, Salmond says that one can have a thing in his control without actually holding or using it at every given moment of time like possession of a coat even if one has taken it off and put down or kept in the cupboard. Even if one falls asleep, the possession of the coat would remain with him. If one is in such a position, he has to be able in the normal course of events to resume actual control when one desires. In such a case, there is the possession in fact of the thing. Another factor relevant to the assessment of control is the power of excluding other people. The amount of power that is necessary varies according to the nature of the object.

A man, in law, would possess only those things which in ordinary language he would be said to possess. In such a case, the possessor is given certain legal rights, such as a right to continue in possession, free from interference by others. This primary right in rem can be supported by various sanctioning rights in personam against those who violate the possessor’s primary right; can be given a right for compensation for interference and a dispossession and the right to have his possession restored from the encroacher. [Babu (Through Lrs) vs Khudial Qayum, Allahabad High Court Judgment dated 5 March 2014]

‘Possession is nine points of the law’ is a phrase (also called ‘nine parts of the law; nine-tenths of the law etc.) used to suggest that, if you really possess something, you will easily claim its ownership than someone who just says it belongs to him or her.

Possession is called as ‘nine points in law.’ The reason is that the consequences of acquisition of possession and of loss of possession are serious and many. The saying “possession is nine points of the law” is an old common law precept. It means that—

“One who has physical control or possession over the property is clearly at an advantage or is in a better possession than a person who has no possession over the property. Even if a person is the rightful owner of the property, but has no possession over it, the person who is in possession will be in a better position, should the property ever be subject to challenge.”

In a property dispute (whether real or personal), in the absence of clear and compelling testimony or documentation to the contrary, the person in actual, custodial possession of the property is presumed to be the rightful owner. The rightful owner shall have their possession returned to them; if taken or used. The shirt or blouse you are currently wearing is presumed to be yours, unless someone can prove that it is not. [S Rutledge (2000)]

Salmond states in Jurisprudence—

“In English law, possession is a good title of right against anyone who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law. Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law, the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).”

According to Savigny, the essence of possession is to be found in the physical power of exclusion. He observes that the corpus possessionis may be of two kinds, according as it relates to the commencement or retention of possession—

(a) The corpus required at the commencement of possession is the present or actual physical power of using the thing oneself and of excluding all other persons from the use of it.

(b) The corpus required for the retention of possession once acquired may consist merely in the ability to reproduce this power at will.

Thus, I get possession of a horse when I take him by the bridle or ride upon him or have him in my immediate presence, so that I can prevent all other persons from interfering with me; but no such immediate physical relation is necessary to retain the possession so required. I can put the horse in the stable or let him graze in the field and yet be in possession of him, so long as I can take him by the bridle when I wish and use him to the exclusion of others.

Critical evaluation—The theory is a relic of the earlier reliance on self-help that was the rule in the primitive undeveloped societies.

In certain cases, Roman law gave a non-owner possessory right which Savigny rejected as anomalies (exceptions) and termed them as derivative possession, i.e., possession derived from the owner.

John Salmond does not approve the views of Savigny and raises the following objections—

(a) Even at the commencement, a possessor need not have physical power of excluding other persons. It is the absence and improbability of foreign interference that constitutes the physical element and not the existence of any power of exclusion.  

Salmond observes, a little child and a man in his deathbed may have no physical power as against a strong man and may yet possess the money in their hands.

Again, in the case of a vast estate of several square miles in extent, actual physical power of preventing alien interference is impossible, but there is the improbability of any interference and consequent security of an exclusive use.

(b) Possession is a continuing de facto relation between a person and a thing, and must have the same essential nature from beginning to end. Possession at the commencement and possession in its continuance cannot be made up of different elements.

(c) The theory of Savigny is inapplicable to the possession of incorporeal things, where there is neither exclusion nor the power of exclusion.

Salmond claims that there is only one conception and that is ‘possession in fact’, which is possession in truth and in fact; and possession in law is a legal fiction. He then distinguished between possession of physical objects, which he called corporeal possession and possession of rights, which he called incorporeal possession.

Corporeal possession is the continuing exercise of claim to the exclusive use of physical or corporeal things. The extent of this claim involves two ingredients – corpus possessionis and animus possidendi.

Salmond classifies the corpus possessionis under two headings—

(a) The relation of the possessor to the thing—It must allow him to put the thing to the use which accords with its nature. Whether the possession of one thing would bring with it the possession of another thing that is connected with it depends up on the circumstances of a particular cases.

(b) The relation of the possession to other persons—A person shall be considered to be in possession of a thing, where the facts of the case are such as to create a reasonable expectation of non-interference in the use of it.

Critical evaluation—Critiques argue that expectation of non-interference is not necessary for the continuation of possession. For example, a man continues to possess his pocket book although pickpocket, who would interfere with his use of it in a few moments, is pursuing him. It is also not necessary for its commencement, where for example, a child or a ruffian may both make for a purse lying in the street; but if the child is the first to pick it up; he gets possession even though the ruffian is certain to interfere the next moment.

The other point of criticism is the assumption that corpus and animus, which are only conditions for the acquisition of possession, are possession themselves.

CONCEPT OF PROPERTY

Aristotle’s views—Aristotle said that nature created everything for man’s existence. Nature does not do anything incomplete; creating man, it also gave him the possibility to live. Coming on earth, man has found all the necessary goods for his existence prepared by nature. Acquiring them, transferring them into property did not necessitate any job than the simple effort of man, that of getting them closer. Everything that exceeded the first necessity meant wealth and not property for Aristotle because the surplus of goods gives birth to exchange.

Property is a condition of life and man’s development; it is based exactly on the nature of man and must be considered as an absolute and primitive right, which does not result from any exterior act as occupation, work and contract. Right to ownership is resulted from human nature itself.

In Portalis’ view, “property is the natural right, which exists in us, and because of its character, it is indispensable to all people.”

Locke’s views—John Locke argued that the right to private property was one of the “natural rights of an individual and consequently protected by natural law.” The right was natural, not in the sense that every individual was born with the right to property, rather, the right was acquired through conduct, which is natural to man. Private property rights were acquired by natural, moral and rationale conduct, which individuals left to their own devices, would perform. As such, private property was acquired separately and did not arise through the prescriptive law of the state. Locke maintained that it was God and not sovereign that gave property, and thus, private property existed even before sovereign and state. The role of government was to protect the right of property along with other rights such as the right to life and liberty.

Locke writes—

“God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience. The Earth and all that is therein belong to mankind in common, as they are produced by the spontaneous hands of Nature.”

Occupation theory, as basis of property, explains property through the right of the first occupier, a consequence of a natural right. This theory attempts to answer the relatively simple question of how things become the subject matter of private ownership.

Occupation theory tries to justify the existence of private property on the ground that the first occupier should be rewarded and property acquired in such a manner is ethically justifiable. He who first reduces into possession of a piece of property has the best of justifications for remaining in control of that property.

The essence behind the occupation theory is that, given that all material resources are given to mankind in common, such material resources become the private property of individuals through the consent of or agreement with the rest of mankind. The division of property takes place by reference to agreements. Such agreements can be express, that is, a clear acceptance by a group of individuals that material resources, for example land or animals, will be distributed amongst themselves on a mutual understanding. In the absence of such express agreements, an implied agreement could be found on the simple basis of first occupation. Thus, the basic principle is that the first occupation gives rise to private property. In common law, possession is the root of title.

Blackstone’s views—Blackstone says “in the beginning, all property and goods of the earth were the general property of mankind.” He, who first began to use a certain thing, acquired therein a kind of transient property, which lasted so long as he was using it, and the right of possession continued for the same time only that the act of possession lasted. Thus, the ground was in common and no part of it was the permanent property of any man in particular; yet, whoever was in occupation of any determined spot of it, for rest, for shade, or the like, acquired for a time a sort of ownership. [Luther M Swygert: Origin of Property, 2 Notre Dame L. Rev. 127 (1927)]

According to this labour theory of property, the person who has used his skills and labour to produce an object is the owner of that object because it is the result of his hard work. 

God, who has given the world to men in common, has also given them reason to make use of it to the best advantage of life and convenience. The earth and all that is therein is given to men for the support and comfort of their being.

Though the earth and all the creatures are common to all men, every man has a property in his own person to which nobody has any right to but he himself. The labour of his body and the work of his hands, we may say, are properly his. Therefore, where a person appropriates a land or any one of its fruits, he has mixed his labour with, and joined to it; such thing is his own and thereby makes it his property. This is because he has removed it from the common state of nature and has placed it into something which is exclusively his own.

Marxist theory explains the evolution and development of property through society’s level of materialism. More or less, this is the kind of relationship people usually have towards each another while trying to fulfill their material needs and wants. This may involve the need to supplement daily needs like clothing, food, shelter and the likes. According to Bottomore, proponents of the Marxist theory, therefore, view property as “a factor of production and not an element of an individual or a group ownership.”

Marxist theory identifies the communal sharing of property as one of the first stages to property ownership. This was identified as the most primitive form of communism, which did not acknowledge individual ownership of property, but the communal ownership of property for community survival.

Marxists believe that private property is the basis for the coming into existence of law and state. They provide that property was the cause for creation of classes in the society in which those who have the means of production can exploit those who do not have these means by making laws to protect the private property. They base their arguments on the fact that there was neither law nor state in primitive society for there was no private property. The theory has the assumption that people can attain a perfect equality at the communism stage in which there would be no private property, no state and no law.

According to metaphysical theory, there is physical connection between the owner and the object. In view of Immanuel Kant, a thing rightfully belongs to someone when he is connected with it in such manner that when someone else uses it without consent, it causes damage to the owner. He said that a thing is mine when I am so connected with it that anyone who uses it without any consent causes an injury to me.

Hegel holds that “the property is the objective manifestation of the personality of an individual.” In other words, property is an object in which person has a right to direct his will. Property is the external manifestation of liberty. “Person has a right to direct his will upon an external object and an object on which it is so directed becomes his. It is not an end in itself; it gets its whole rational significance form his will.”

LEGAL PERSON

According to Blackstone, at common law, a corporation is dissolved by the death of all its members. However, this assumption, as pointed out by some of the authors, is not a logical one, as it does not apply to corporation sole, for beings of this sort lead a continuous life, notwithstanding the interval between the death or retirement of his successor. Nor is there any reason to suppose that such a ground of dissolution is known to the trading corporations incorporated under the Companies Acts.  

Corporation can be dissolved in the manner provided in the statute—Corporations being established by statute can be dissolved only in the manner provided by the statute to which they owe their origin. The perpetual succession, which the corporate body is said to have, means that it exists irrespective of the natural persons who composed it or changes in the membership, by death, addition or replacement by new members. Notwithstanding these changes in the human composition, the corporate body continues and the obligations incurred by one group of members bind the corporate body even though the whole of the membership has been changed. The acts and decisions of the body are only valid, if its common seal, which takes the place of signature by a natural person, authenticates them. 

Salmond in his book on Jurisprudence, while dealing with creation and extinction of corporations, has stated as follows—

“The birth and death of legal persons are determined not by nature, but by the law. They come into existence at the will of the law, and they endure during its good pleasure. Corporation may be established by royal charter, by statute, by immemorial custom, and in recent years, by agreement of their members expressed in statutory forms and subject to statutory provisions and limitations. They are in their own nature capable of indefinite duration, this being indeed one of their chief virtues as compared with humanity, but they are not incapable of destruction. The extinction of a body corporate is called its dissolution; the severing of that legal body by which its members are knit together into a unity. We have already noticed that a legal person does not of necessity lose its life with the destruction or disappearance of its corpus or bodily substance. There is no reason why a corporation should not continue to live, although the last of its members is dead; and a corporation sole is merely dormant, not extinct, during the interval between two successive occupants of the office.”

Legal status is the position held by something or someone with regard to law. It is a set of privileges, obligations, powers or restrictions that a person or thing has and which are declared by legislation. The law of status deals with the status of persons such as lunatics, aliens, deceased persons, lower animals etc. Some persons do not enjoy the status of legal personality. However, the society has some duties towards them.

The term ‘status’ is given various meanings. According to Salmond, there are four meanings of the word ‘status’ as following—

(1) Legal condition of any kind, whether personal or proprietary;

(2) Personal legal conditions, excluding proprietary relations;

(3) Personal capacities and incapacities as opposed to other elements of personal status; and

(4) Compulsory as opposed to conventional legal position.

According to Austin, “the complex of rights and duties, or capacities and incapacities which especially affect a narrow class are termed as status.”

In short, ‘status’ is condition which arises due to the membership of a class or group and affects the rights and duties of the members of that class. In other words, status indicates the rights and liabilities, which a person has by virtue of his being a member of a particular class or group. There are number of grounds, which lead to the creation of a status such as minority, marriage, office and profession, etc. A person can have a number of statuses at the same time. He might be a husband, a father, and an officer at the same time. The general principle of status is that when created by the law of one country, it is or ought to be judicially recognized as being the case everywhere, all the world over. [Re Luck’s Statement Trust]

According to some jurists, a corporation has a fictitious personality. This fictitious personality is attributable to the necessity for forming an individual organization existing by itself and managing for its beneficiaries (the members of it and its dealings).

Savigny propounded the fiction theory. According to him, “a personality is attached to corporation, institutions and funds by a pure legal fiction. The personality of a corporation is different from that of its members. There is a double fiction in the case of a corporation. By one fiction, the corporation is given a legal entity. By another fiction, the corporation is clothed with the will of an individual person.”

According to Salmond, “a corporation has a reality of existence, but it has no real personality. As it has not real will of its own, a corporation must have fictitious will.”

Critical evaluation—One of the arguments against the theory is that from the point of view of ownership, the fiction theory takes us nowhere. If a corporation aggregate is only an imaginary person, which exists only in the eyes of the law, how can a non-existing (imaginary) person hold property?

As we know, a corporation has rights. However, only real persons can have rights. Therefore, a corporation must be real and not an imaginary person.

The fiction theory is also criticized on the ground that its upholders “mistake the part played by the legislator”. “The legislator makes nothing by itself. He only considers social want, social good and social evil, and gives effect to what society generally considers as good or proper. It is idle, therefore, to suggest that the legislature creates the personality of the corporation.”

The realist theory of corporate personality stresses that, “A corporation has a real and not a fictitious personality.”

According to Gierke, “Every group has a real mind, a real will and a real power of action. A corporation has a real existence independent of the fact whether it is recognized by the state or not. The corporate will of the corporation expresses itself through the acts of its servants and agents.” According to this theory, every group comes to have a personality of its own whether that group is a social group or a political group.

The realist theory is also known as the sociological theory of the group personality of the corporation. They hold that the collective will is, in psychology, different from the individual. An individual, all by himself may come to a particular decision; but in association with others, he may come to a very different decision. The will of the many is different from the will of an individual but is recognized by the law.

Critical evaluation—The realistic theory is incapable of being applied to a corporation sole, because the theory of the collective psychic will does not come in the case of a corporation sole.

According to concession theory, the only realities are the sovereign and the individuals. The other groups cannot claim recognition as persons. They are treated as persons merely because of concession on the part of the sovereign. Only the law confers legal personality. Thus, according to the concession theory, juristic personality is a concession granted by the state. It is entirely within the discretion of the state either to recognize a juristic person or not to do so.

According to Dicey, “All rights, whether human or corporate, come from what the law under the state sovereignty gives. Where the law does not give anything, its recognition is limited. It is by grace or concession alone that the legal personality is granted, created or recognized.”

Critical evaluation—The concession theory is indifferent to the question of the reality of a corporation in as much as it focuses only on the source (state) from which the legal power of the corporation is derived.

According to bracket theory, the members of a corporation are the bearers of the rights and duties, which are given to the corporation for the sake of convenience. It is not always practicable or convenient to refer all the innumerable members of a corporation. A bracket is placed around them to which a name is given. That bracket is the corporation.

In order to determine the real nature of the corporation and its state of affairs, the brackets have to be removed, for the names of the members of the corporation are kept in brackets. When the brackets are removed, one would be able to see what the corporation is, what its true nature is, and how its members are revealed through the removal of brackets.

Critical evaluation—The main defect of this theory lies in the fact that it is not able to indicate when the bracket may be removed and the mask lifted for the purpose of taking note of the members constituting the corporation.

This theory has also been criticized on the ground that rights, duties and liabilities can only be possessed by natural persons and not by corporations, which are legal entities.

The organism theory of the personality of the corporation expounds that the corporation, like an organism, has members (limbs), head and other organs. The individual also has a head, a body with limbs to perform interdependent functions. Corporations, such as the state, the university, the club, social and public utility organizations, have also limbs in them and will of their own. A corporation, according to this theory, is a subject of legal rights and is liable to duties.

  • According to this theory, a subject of legal rights need not be a human being. Any being or body with a will of its own and a life of its own can have legal rights and can be subject to legal duties and liabilities. What is essential, according to this theory, is that such a being or body must have a will of its own.

Corporations are social organisms, while human beings are physical organisms. Corporations are different from those who are their members, and their wills are also different from the will of their individual members, for it is not what individual members decide at the meetings of the corporations while passing resolutions; it is what the corporation as a body decides. The will of each individual member of the corporation is submerged into the will of the corporation. Individual A may not at all be in accord with the resolution finally passed by the corporation; individual B’s views may now stand much modified by the final resolution; individual members enter into discussions at their meetings, and finally what is decided may be much different from the original views entertained by the individual corporator. The final resolution is therefore the will of the corporation. [Soloman vs Soloman Co. Ltd., (1897) AC 22]

LIABILITY

The rule of joint and several liability is central to the common law conception of civil liability. The rule provides that two or more persons who have caused a particular loss will each be liable for the full extent of the loss. This means that the injured party can recover full compensation from any of the persons who have caused the harm, though they cannot recover more than the full amount awarded by the court.

Protection to the plaintiff—The joint and several liability protects plaintiffs by providing that each person who has caused the loss is liable to fully compensate for the loss. If the plaintiff is unable to recover from one defendant, he can still recover the full amount from other defendants. The principled basis for this rule is the common law approach to causation. Each of the defendants has relevantly caused a single, indivisible loss suffered by the plaintiff, so each should be liable for that loss. The common law has held that the injured party should not bear the risk of absent or insolvent defendants. Instead, the courts have allocated that risk to the parties found to have caused the plaintiff’s loss.

In its modern form, the joint and several rule does not prevent defendants from apportioning their responsibility among each other. If a plaintiff chooses to claim from only one of several defendants, the defendant can join the other persons who have contributed to the loss so that they will be allocated their share of the loss.

The Latin maxim damnum sine injuria means damage without legal injury. In essence, it refers to situations where a person or entity suffers harm or loss, but no violation of their legal rights has occurred.

In the case of Mayor & Co. of Bradford vs Pickles (1895), the Bradford Corporation sued the defendant, claiming that digging a well on the defendant’s land had reduced the water supply to the corporation’s well. This caused them financial losses due to insufficient water for the people within their jurisdiction. However, the court found the defendant not liable because they had not violated any legal rights of the plaintiff. Thus, the concept of damnum sine injuria was applied.

In the case of Mogul Steamship Co. Ltd. vs McGregor Grow & Co., (1892) AC 25, the plaintiff was an independent ship-owner who used to send cargo from China to England. Four ship-owners, who were the defendants in this case, formed an association and offered special concessions to customers to outdo their competitor, the plaintiff. Because of this competition, the plaintiff suffered financial losses and sued all four defendants for compensation.

Despite the morally questionable nature of the defendant’s actions, the court found that the companies forming association to oust the rival companies had not violated any right vested in the plaintiff. Hence, they were not held liable for the injuries suffered by the plaintiff.

Injuria sine damno means an injury or violation of a legal right without any accompanying actual damage or loss. It signifies a situation where a person’s legal rights are infringed upon, even though no noticeable harm or loss has been suffered.

Every person has an absolute right to property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. Actual perceptible damage is not, therefore, essential as the foundation of an action. It is sufficient to show the violation of a right in which case the law will presume damage. Thus, in cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof of actual damage. The court is bound to award to the plaintiff at least nominal damages, if no actual damage is proved.

In the case of Ashby vs White, (1703) 2 Lord Raym, 938, a listed voter was not allowed to cast his vote by the polling officer. The voter’s candidate of choice ultimately won the election. So no actual damage was caused, but there was a violation of the person’s legal right to vote. It was held that the defendant was liable.

Res ipsa loquitur is a Latin phrase, which literally translates to “the thing speaks for itself.” An essential part of any personal injury case is being able to show that the other party’s wrongdoing or negligence caused the injury at issue. Sometimes, an injured party is unable to show direct evidence of negligence. In such cases, the doctrine of res ipsa loquitur lets an injured person present a prima facie case of negligence even when there is no specific evidence that the defendant party was negligent, or when only the defendant has access to the evidence of negligence. An injured person, however, may not resort to the doctrine of res ipsa loquitur, if he has access to direct evidence of negligence.

The use of res ipsa is common in medical malpractice cases, in which injured patients often do not have access to evidence of a medical professional’s negligence. For example, it may be used to show that a physician was negligent in performing a surgery while the patient was unconscious, and thus unable to observe or collect any evidence of negligence.

Elements to establish—In order to prove a res ipsa loquitur claim, an injured party has to prove that—

(a) The injury is of the kind that does not ordinarily occur without negligence or is uncommon in the course and nature of said act.

(b) The injury is caused by an agency or instrumentality within the exclusive control of the defendant.

(c) The injury-causing accident is not by any voluntary action or contribution on the part of the plaintiff.

(d) The defendant’s non-negligent explanation does not completely explain plaintiff’s injury.

For res ipsa loquitur to apply to a claim that the physician operated on the wrong part of the patient’s body, the evidence must establish that the doctor intentionally operated on the wrong part of the body under the mistaken impression that he or she was operating on the correct part of the body. For example, res ipsa loquitur was found applicable in a situation in which the surgeon specifically identified a symptomatic lipoma he was to remove, but instead removed a different lipoma. [Manax vs Ballew, 797 SW 2d 71]

Res ipsa loquitur has been found to apply in circumstances in which a surgical sponge or other operative equipment has been left inside the patient. In the case of Schorlemer vs Reyes, 974 SW 2d 141, a sponge was left in the patient’s abdomen during surgery to remove an ovary, fallopian tube, and appendix. Despite the testimony of two assisting nurses that the sole responsibility for removal of surgical sponges rested with them, the court held that res ipsa loquitur applied against the surgeon.

NEGLIGENCE

In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task, which is required to be performed with a special skill, would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result.

A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on.

The only assurance, which such a professional can give or can be understood to have given by implication, is that he is possessed of the requisite skill in that branch of profession, which he is practicing, and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings—

(a) Either he was not possessed of the requisite skill, which he professed to have possessed; or

(b) He did not exercise, with reasonable competence in the given case, the skill, which he did possess.

Some eminent jurists have taken the view that negligence is not a state of mind at all. According to Sir Frederick Pollock, negligence is not a subjective, but an objective fact. It is not a particular state of mind, but a type of conduct. It is a breach of the duty of taking care and to take precautions against the harmful results of his actions. It is in this sense contrasted with willful doing.

Pollock gives two examples to illustrate his viewpoint—

(a) An inefficient surgeon, however careful he may be subjectively, is negligent, if he does not attain a reasonable standard of conduct in his profession. To find out whether he has been negligent or not, we need not go to the state of his mind, but to the standard of his conduct.

(b) In the same way, when the train driver sleeps and thereby becomes responsible for an accident, he has failed to perform a particular standard of conduct because while sleeping he has no state of mind to think that can be associated with the accident.

According to Clark and Lindell, “negligence consists in the omission to take such care as under the circumstances it is the legal duty of a person to take.”

Negligence thus suggested is not a subjective, but an objective fact being a particular course of conduct, which has nothing to do with a state of mind. In this view, negligence consists in pursuing a course of conduct different from that of reasonable and prudent person.

Critical evaluation—John Salmond says that the view as set forth by the advocates of the objective theory is the result of incorrect analysis. Negligence, it is true, invariably results in a failure to take necessary precautions that a reasonable person would take. The failure to take necessary precautions does not, however, necessarily point to negligence. It may be accidental or even intentional. Objectively, it is not possible to say whether a particular act is—(a) accidental, (b) intentional, or (c) negligent.

Therefore, one must observe the subjective attitude of a person towards his act, before he can characterize it as negligent or not.   

Objective and subjective theories of negligence may be reconciled—Thus, there are two applications of the term negligence. Negligence may be contrasted with intention. Then it can only be a state of mind. In that case, subjective theory holds good. Negligence may also be contrasted with inevitable accident. In such a case, it can only be a particular type of conduct—in that case, the objective theory of negligence will be found to be applicable. In this way, both objective and subjective theories of negligence may be reconciled and found applicable in different sets of circumstances.

Salmond’s view—According to Salmond, “Negligence essentially consists in the mental attitude of indifference with respect to one’s conduct and its consequences.” According to him, “I am negligent when I am supremely indifferent regarding the consequence of my act.” This is called the subjective theory of negligence.

Salmond’s view is that the essence of negligence is carelessness. A person is said to be careless when he is indifferent to the results of his conduct. Owing to carelessness, a person may not reflect on the consequences of his acts and so be inadvertent or lacking in foreknowledge of those consequences. Advertence to the consequences of the act is also compatible with carelessness, for a person may be fully conscious of the consequences of his act and yet do it without desiring those consequences.

Salmond says that the essence of negligence is not inadvertence—which may or may not be due to carelessness—which may or may not result in inadvertence. He accordingly defined negligence as “the mental attitude of undue indifference with respect to one’s conduct and its consequences.”

AUSTIN’S view—According to Austin, want of advertence, which is one’s duty, would naturally suggest the fundamental or radical idea in the conception of negligence. In his view, a negligent wrong doer is one who does not know that his act is wrongful, but would have known it, were it not for his mental indolence and inadvertence. Thoughtlessness is thus of the essence of negligence.

Distinction between negligence, heedlessness and rashness—Austin draws a distinction between negligence, heedlessness and rashness. Negligence is the state of mind of the person who inadvertently omits an act and breaks a positive duty. As to the other two states of mind, Austin observed, the party who is guilty of rashness like the party who is guilty of heedlessness, does an act and breaks a positive duty. The party who is guilty of heedlessness thinks not of the probable mischief. The party who is guilty of rashness thinks of the probable mischief, but in consequences of a mis-supposition begotten of insufficient advertence, he assumes that the mischief will not ensue in the given instance. Thus, in the heedlessness, the doer of the act does not bother to advert to the possible consequences. In rashness, while foreseeing the consequences, he foolishly thinks that they will not occur as a result of his act. There is another state of mind known as recklessness. Here, the doer foresees the consequences, but does not care whether they result from his act or not.

Salmond treats all the above states of mind under the head of ‘negligence’. In all of them, according to him, there is a failure to act up to the criterion or standard of care set up by the law, a failure to exhibit the amount of care required of a reasonable man. Therefore, it is permissible to disregard the shades of difference mentioned by Austin and conclude rashness and recklessness also coming under the head of ‘negligence’.

Critical evaluation—Salmond shows that Austin’s view is fallacious. In the first place, there may be advertent or willful negligence as where a person foresees the consequences of an act yet recklessly does the act without intending those consequences. This act of mind is described by Austin as rashness, but may be included under negligence. Inadvertence or want of foresight may proceed from ignorance despite a genuine and anxious effort to attain knowledge.

An act, which may be negligent in civil law, may not necessarily be negligent in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher, i.e., gross or of a very high degree. Negligence, which is, neither gross nor of a higher degree may provide a ground for action in civil law, but cannot form the basis for prosecution. The question of degree has always been considered as relevant to a distinction between negligence in civil law and negligence in criminal law.

 In civil proceedings, a mere preponderance of probability is sufficient and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. [Dr. Indira Rao vs State of Karnataka]

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