B.A.LL.B.

Paper Code: 312

Subject: Jurisprudence – II

Unit-I: State, Sovereignty and Law

a. Nature and functions of a State and its relationship with law
b. Nature and development of Sovereignty
c. Nature and kinds of law and theories of justice

Unit-II: Sources of Law

a. Custom
b. Precedent
c. Legislation
(Emphasis on Indian perspective)

Unit – III: Concepts of Law

a. Rights and Duties
b. Personality
c. Possession, Ownership and Property

Unit-IV: Principles of Liability

a. Liability and Negligence
b. Absolute Liability
c. Immunity

Unit-I: State, sovereignty and law

(a) Nature and functions of a State and its relationship with law

A state is an organized community living under one government. States may be sovereign. The
term state is also applied to federated states that are members of a federal union, which is the
sovereign state. Some states are subject to external sovereignty or hegemony where ultimate
sovereignty lies in another state. The state can also be used to refer to the secular branches of
government within a state, often as a manner of contrasting them with churches and civilian
institutions.

Many human societies have been governed by states for millennia, However for most of pre-
history people lived in stateless societies. The first states arose about 5,500 years ago in
conjunction with rapid growth of cities, invention of writing, and codification of new forms of
religion. Over time, a variety of different forms developed, employing a variety of justifications
for their existence (such as divine right, the theory of the social contract, etc.). Today, however,
the modern nation-state is the predominant form of state to which people are subject.

A state can be distinguished from a government. The government is the particular group of
people, the administrative bureaucracy that controls the state apparatus at a given time. That is,
governments are the means through which state power is employed. States are served by a
continuous succession of different governments. States as immaterial and nonphysical social
objects, whereas governments are groups of people with certain coercive powers

Each successive government is composed of a specialized and privileged body of individuals,

who monopolize political decision-making, and are separated by status and organization from the
population as a whole. Their function is to enforce existing laws, legislate new ones, and
arbitrate conflicts. In some societies, this group is often a self-perpetuating or hereditary class. In
other societies, such as democracies, the political roles remain, but there is frequent turnover of
the people actually filling the positions.

States can also be distinguished from the concept of a "nation", which refers to a large
geographical area and the people therein who perceives themselves as having a common identity.

Political power is, of course, always coercive power backed by the state’s machinery for
enforcing its laws. But in a constitutional regime political power is also power of equal citizens
as a collective body: it is regularly imposed on citizens as individuals, some of whom may not
accept the reasons widely believed to justify the general structure of political authority (the
constitution); or when they do accept that structure, they may not regard as well grounded many
of the laws enacted by the legislature to which they are subject.

The nature of the state is a topic which divides criminologists. There are those who see it as a
neutral instrument which upholds civic order or which supports citizens through a system of
benefits and support and there are those who see the state as either having interests of its own or
advancing the interests of a specific class of persons, in whose interests it governs. The idea of
justice as fairness rests upon the idea that the state is a neutral entity and it is fair to say that the
liberal tradition within Criminology has tended either to neglect the state or to rely, wholesale,
upon liberal political theorists, such as John Rawls and his conception of ‘social cooperation
among equals for mutual advantage’. The Marxist and Feminist traditions within Criminology
have a far richer body of writing about the state and more generally about state control and social
regulation.

The State
The state is, arguably, the most contested term in political theory and it may refer to a great many
different things, such as a philosophical or ideological category, an institution, a territorial power
or a functional organizing principle. It is a topic covered extensively in the writings of political
philosophers since classical times, and certainly Plato, Aquinas, Machiavelli, Hobbes, Locke and
Marx are only a few of the writers who have tackled the subject of the state. In Criminology
different traditions have grown up which attribute varying attributes and motivations to the state.
In order to make progress, let us outline four basic and interrelated features of a state.
First, the state must have a working political organizational structure.
In other words, it must have a set of institutions which allow it to operate, such as the courts, a
civil service and a police force. Secondly, for a state to be a working entity it has to persist in
time and space, i.e. it must control a set territory and survive changes in its basic organization, as
would be the case if an election altered the government. Thirdly, it must be able to support a
single political form of public order and therefore it must have agency. It must be sovereign and
be able to claim a monopoly of political authority, law-making and power, and it must be
autonomous. Fourthly, but closely linked to the idea of the state as a single political form of
public order, it must have the allegiance of its members (citizens, subjects), who are subject to its
laws and who have an obligation to obey it. The political theorist John Charvet has noted that:
‘For Locke, as well as for Hobbes and Rousseau, entry into political society from the state of
nature is possible only if individuals surrender their natural right of private judgment to the
public judgment of the community or its agent.

The two most important features for criminologists are the first and third features. The first
feature, that the state is a particular form of political organization, is the dominant notion at work
in contemporary Criminology. It is the view of Karl Marx, who wrote in The German Ideology,
that: ‘Through the emancipation of private property from the community, the State has become a
separate entity, beside and outside civil society; but it is nothing more than the form of
organization which the bourgeois necessarily adopts both for internal and external purposes, for
mutual guarantee of their property and interests.’ In contemporary legal theory, Joseph Raz has
also argued that the state is a form of political organization, but he has usefully delineated the
state from law and government:
‘The state … is the political organization of a society, its government, the agent through which it
acts, and the law, the vehicle through which much of its power is exercised.’ Raz has further
argued that: ‘A state is the political organization of a society, it is a subsystem of a more
comprehensive social system.’
This position echoes John Rawls’ idea, expressed in Political Liberalism, that: ‘a society’s main
political, social, and economic institutions, and how they fit together into one unified system of
social cooperation from one generation to the next’. It should be noted here that the political and
social basis of the state are not very clearly delineated

The third feature, that the state is a political form of public order a with monopoly of political
authority, law-making and power, was underscored by Thomas Hobbes and John Locke, who
defined the state as that form of political power which has the sole right to make laws and to
punish those who fail to follow them, and it has obvious connections to the study of crime.
Hobbes, in the Leviathan, wrote: ‘I Authorize and give up my Right of Government myself, to
this Man, or his Assembly of men, on this condition, that thou give up thy Right to him, and
Authority all his Actions in like manner.’ Hobbes saw the state as being that thing which
preserves men from the state of nature. Hobbes’ conception is set out in the Leviathan, where he
writes: ‘The state of nature is simply the condition of men without a sovereign power to compel
order. Just as we may never have a perfect vacuum, perhaps we can never have a situation where
there are no vestiges of the restraints that sovereignty provides, but inasmuch as sovereignty is
absent, to that extent men will begin to exhibit behavior typical of the state of nature.’ In Hobbes,
we get the idea that it is not natural for men and women to subordinate themselves for the greater
good. Rather, we are presented with a view that social community, and freedom from the state of
nature, can only be established through the exercise of political power. Our human society is the
outcome of agreements and conventions that men and women make themselves. John Locke,
following Hobbes, saw the state as that political institution which maintains order. Locke details
his notion of the main function of a state in his description of the Law of Nature: ‘For the Law of
Nature would, as other Laws that concern men in this world, be in vain, if there were no body
that in the state of nature, had a power to execute the Law and thereby preserve the innocent and
restrain offenders.’ In this passage we note both his understanding that all law requires
enforcement and concern for deterrence in punishment. In contemporary liberal political theory,
both Charvet and Raz follow the tradition of understanding the state as that thing that maintains
law and order and thereby allows persons to live their lives unhindered by the dangers inherent in
a state of nature; indeed, it is the standard view. It is important to note that in liberal theory the
state is the outcome of a voluntary agreement made by individuals who realize that only a social
contract will save them from the dangers of the state of nature. The liberal state is always a
protective neutral entity which represents all the people fairly for the common good of all. This
conception of a neutral state that safeguards its citizens equally from the state of nature is what
Marxism and Feminism takes issue with.

Marxism and the State

The classic statement within Marxist Criminology on the state, as that thing which frames laws
which uphold sectional class interests, was given us by Bill Chambliss when he wrote: ‘...
without doubt the single most important force behind criminal law creation is doubtless the
economic interest and political power of those social classes which either (1) own or control the
resources of the society, or (2) occupy positions of authority in state bureaucracies’. Marx
himself gave two different accounts of the state. The account Marx gives in his Introduction to
Critique of Hegel’s Philosophy of Right is an unfinished work and is a critique of Hegel, rather
than a systematic view of his own thinking. The first view Marx outlined for himself was given
in the 1848 The Communist Manifesto, where he wrote: ‘...executive of the modern State is but a
committee for managing the affairs of the whole bourgeoisie’. In The Communist Manifesto, the
state simply coordinates the interests of dominant class. We are presented with a straightforward
binary opposition between the bourgeoisie and the proletariat. However, Marx also advanced a
second view, notably in two other works, the Class Struggles in France, written in 1850, and The
Eighteenth Brumaire of Louis Bonaparte, written in 1852. In these works, he outlines a plurality
of classes and details how the state is far more than just a simple coordinator of the interests of
the dominant class. Marx also argued, in this second view, that the state itself has some
autonomy.

This second view of the state has become the dominant view in contemporary Marxist
scholarship and Carnoy has written that: ‘The State is not regarded simply as an instrument of
the ruling class. ... Who rules the State is an important issue, but few, if any, current writers
claim that the ruling class controls the State directly.’ However, we must not lose sight of the
fact that Marx did not furnish a systematic theory of the state and his ideas are often inconsistent
or not fully formed, though this is in part due to the fact that he was far more concerned with
Political Economy, rather than Political Theory. Marx also tends to underplay the ability of
individuals to either act or calculate independently of their economic situation. Because Marx
failed to provide a thoroughgoing or clear conception of the state, his followers have had to
interpret his writings and this has spawned a variety of latter-day Marxist theories. Nevertheless,
the Marxist state is always essentially economic in its character. As Pashukanis said of legal
forms, they ‘form a united whole with the material relations of which they are the expression’.
This position is found in Marx’s Preface to a Critique of Political Economy Marxist
criminologists Dario Melossi has, perhaps, done most to uncover the original intention of Marx’s
writing on the state and punishment, though Marx’s writings resist a definitive definition.
Nonetheless, it is possible to argue that there are two main schools within Marxist writing on
law, punishment and the state. On the one hand,Melossi and Rusche and Kirchheimer, who stress
the first view given in The Communist Manifesto and play up the economic elements in Marx’s
analysis and the role of state coordination. On the other hand, Hall, Hay, Ignatieff and Sumner,
who tend to favour the second view given in The Eighteenth Brumaire of Louis Bonaparte and
understand the state as having a deal of autonomy. Hall, Hay, Ignatieff and Sumner all stress the
importance of ideology and broader issues of legitimacy. Hay, for example, reasoned that the
criminal justice system in eighteenth-century England was essentially ideological in nature,
rather than straightforwardly judicial. The proliferation of offences for which people could be
executed was, he argued, part of an elaborate system of execution and mercy. The deeper point
Hay makes is that state punishment was secondary to its ideological function, which was the
preservation of the property rights of a tiny minority of the population. State punishment was
actually more concerned with ensuring a compliant citizenry than giving criminals their deserved
sentences. Hay wrote: ‘Loyalties do not grow simply in complex societies – they are twisted,
invoked and often consciously created.’
Functions of the State

The end of the State, we have seen, is to promote the welfare of its citizens as a whole, as
members of families, and as members social classes. Anyone who is inclined to doubt the
propriety of including the second and third of these clauses, will dismiss the inclination as soon
as he looks beneath formulas and fixes his attention upon realities.

State exists and functions for the sake of human beings. It attains this end primarily by
safeguarding those interests that are common to all the persons under its jurisdiction; for
example, by resisting foreign invasion and protecting life and property. If it stops at this point it
will leave unprotected not only many individual interests, but many elements of the common
good, many aspects of the general welfare. To neglect the integrity of the family or the prosperity
of any considerable social class, will sooner or later injure society as a whole. To take care of
these interests is, indirectly at least, to promote the common good. Nor is this all. Since
individual welfare is the ultimate, though not strictly the formal, object of the State, that object
ought to be deliberately promoted by the State, whenever it cannot be adequately furthered by
any other agency. To deny this proposition is to assume that men have been unable to achieve a
political organization that is adequate to safeguard their temporal welfare. However, it is neither
desirable nor practicable for the State to provide for every individual as such. It can promote
individual welfare best by dealing with men as groups, through their most important group
relationships; therefore, as members of families, and as members of social classes. When it
provides for the needs that are common to members of these two fundamental forms of
association, it benefits most effectively the whole number of its component individuals.

What are the specific policies and measures by which the State can best attain the objects
described in the foregoing paragraphs? To answer this question will be to describe the proper
functions of the State.

Among political writer a fairly frequent classification of State functions is into necessary and
optional or essential and non-essential. The former are "such as all governments must perform in
order to justify their existence. They include the maintenance of industrial peace, order, and
safety, the protection of persons and property, and the preservation of external security. They are
the original primary functions of the State, and all States, however rudimentary and undeveloped,
attempt to perform them." They may be enumerated somewhat more specifically as military,
financial, and civil. In the exercise of its military function, the State defends itself and its people
by force against foreign aggression, and prevents and represses domestic disorder. The financial
function of the State comprises the collection and expenditure of funds for the maintenance and
operation of government. Regulations concerning individual rights, contracts, property, disputes,
crime, and punishment, constitute the State's civil function.
The optional or unessential functions are calculated to increase the general welfare, but they
could conceivably be performed in some fashion by private agencies. They comprise public
works; public education; public charity; industrial regulations, and health and safety regulations.
Under the head of public works are comprised: Control of coinage and currency in the conduct of
banks; the postal service, telegraphs, telephone and railroads; the maintenance of lighthouses,
harbors, rivers, and roads; the conservation of natural resources, such as forests and water power,
and the ownership and operation of supply plants and municipal utilities. Public education may
include not only a system of schools, but museums, libraries, art galleries, and scientific bureaus,
such as those concerned with the weather and agriculture. In the exercise of the function of
public charity, the State establishes asylums, hospitals, almshouses, corrective institutions,
provides insurance against accidents, sickness, old age and unemployment, and makes various
provisions of material relief for persons in distress. In the field of regulation, as distinguished
from that of ownership, operation, or maintenance, the State supervises public safety and
industry. Regulations of the former kind relate to quarantine, vaccination, and medical inspection
of school children and of certain businesses and professions, and protection of public morals in
the matter of pictures, publications, theatres and dance halls. Industrial regulation extends to
banks, commerce, business combinations, and the relations between employer and employee.

The classification of State functions as necessary and optional has the merit of presenting a
comprehensive view of political experience. It enables us to see how States have interpreted their
scope, and distinguished between functions that are essential and functions that are non-essential.
While all fully developed States have regarded as essential the functions which are so designated
in the foregoing paragraphs, not all have agreed in conceiving the so-called optional functions as
of that character. Some of the optional functions have been regarded by some States as primary
and essential. And the number of optional functions that have been undertaken varies greatly
among the various States. The factor determining the course of the States in this matter has been
mainly, if not exclusively, expediency.

A somewhat analogous classification is used by many Catholic writers. While conforming fully
to political experience, it also based upon fundamental principles of ethics, and it illustrates the
principles of logic. It is thus stated in summary form by CathreinThe functions of the State are
First, to safeguard the juridical order, that is, to protect all rights, of individuals, families, private
associations, and the Church; second, to promote the general welfare by positive means, with
respect to all those goods that contribute to that end. Substantially the same classification and
principle is laid down by Meyer, Castelein, Croninand Lilly In a general way the primary
functions in this classification correspond to the necessary or essential functions in the grouping
made by the political writers. While the second group of functions denoted by the Catholic
writers resembles the second category of the political science manuals in a general way as
regards content, there is a considerable difference of principle. The secondary functions
described by the political writers are said to be optional, and their optional character is
determined mainly by the varying experience and practice of particular States; but the positive
promotion of general welfare is regarded by the Catholic writers as normal and necessary,
because required by the fundamental needs of human beings. According to the Catholic writers,
the difference between the primary and secondary functions of the State is not a difference of
kind but only of degree. As noted by Meyer, the primary functions are not sufficient. The State
must not only safeguard rights, but promote the general good by positive measures of
helpfulness.{10} This is the general principle. In carrying it out, the State may properly
undertake some particular activities which are not obligatory, but only more or less expedient.

PRIMARY FUNCTIONS

The concrete activities which fall under the primary functions of the State may be summarized as
follows. All natural rights must receive adequate protection. The State is obliged to safeguard the
individual's rights to life, liberty, property, livelihood, good name, and spiritual and moral
security. Whence it follows that laws must be enacted and enforced against all forms of physical
assault and arbitrary restraint; against theft, robbery, and every species of fraud and extortion;
against all apparently free contracts which deny the opportunity of pursuing a livelihood on
reasonable terms; against calumny and detraction; and against the spiritual and moral scandal
produced by false and immoral preaching, teaching, and publication.

In the individualistic theory, the first two classes of enactments are held to exhaust the functions
of the State, apparently on the assumption that they cover all the individual's rights. This is a
grossly inadequate conception. Reasonable opportunities of livelihood, reputation, spiritual and
moral security, are all among man's primary needs. Without them he cannot develop his
personality to a reasonable degree, nor live an adequate life. Therefore, they fall within the scope
of his natural rights. For natural rights include all these moral powers, opportunities and
immunities which the individual requires in order to attain the end of his nature, to live a
reasonable life. Any arbitrary or unreasonable interference with these is a violation of the rights
of the individual. Hence the unfair competition carried on by a monopoly, unreasonable boycotts,
wage contracts for less than the equivalent of a decent livelihood, untrue or otherwise
unjustifiable statements derogatory to a man's reputation, utterances and publications calculated
to corrupt his religion or morals, -- are all injurious to the individual, and are unreasonable
interferences with the security and development of his personality. All the foregoing rights
should be safeguarded by the State, not only as exercised by the individual, but also as involved
in the reasonable scope of associations. Hence the family, the Church and all legitimate private
societies have a just claim to protection by the State in the pursuit of all their proper ends. Men
have a right to pursue their welfare not only by individual effort but through mutual association.
A corollary of State protection of rights is State determination of rights. To a very great extent
the reciprocal limits of individual rights cannot be satisfactorily adjusted by the individuals
themselves. This fact is most conspicuously illustrated in connection with property rights, but it
receives frequent exemplification in other sections of the juridical province.

While all the rights above described have a general claim upon the State for protection, not all of
them have an actual claim to adequate protection at any given time. This is a question of
prudence and expediency. What the State may normally be expected to do, is one thing; what it
is here and now able to do, is quite another thing; for example, with regard to false religious
teaching and scandalous moral teaching. Perhaps the most comprehensive and practical principle
that can be laid down is this: The State should not attempt to protect any right beyond the point
at which further efforts threaten to do more harm than good.

SECONDARY FUNCTIONS

These can be conveniently described by following the order outlined in the paragraph which
enumerated the so-called optional functions. In general, the secondary functions cover all
activities that cannot be adequately carried on by private effort, whether individual or corporate.

Public Works. Under this head are included all those industries and institutions which the State
not merely regulates, but owns and manages. The control of coinage and currency are
undoubtedly among the necessary functions of government. Almost equally necessary is the
government postal service. Telegraphs, telephones, railways, water supply and lighting may in a
sense are called optional functions, since the general welfare does not always require them to be
operated by the State. When public operation is clearly superior to private operation, all things
considered, the State undoubtedly neglects its duty of promoting the common welfare if it fails to
manage these utilities. It is a necessary part of the State's functions to provide such public
safeguards as fire departments, lighthouses, buoys, and beacons; to maintain such
instrumentalities of communication as roads, canals, bridges, and wharves; and to conserve such
natural resources as forests, water powers, and watersheds. None of these activities can be
satisfactorily performed by private enterprise.

Public Education. As the child belongs primarily to the parents, so the function of education is
primarily theirs. Both these propositions are demonstrated by the facts and requirements of
human welfare. In very exceptional cases only can the education and upbringing of the child be
controlled and carried on as well by the State as by the parents. Nevertheless, the common
welfare does require the State to take a rather important part in the work of education. It is
summarized in the following excerpts from the Pastoral Letter of the American Hierarchy, issued
in 1920.

As the public welfare is largely dependent upon the intelligence of the citizen, the State has a
vital concern in education. This is implied in the original purpose of our government which, as
set forth in the preamble to the Constitution, is "to form a more perfect union, establish justice,
ensure domestic tranquility, provide for the common defense, promote the general welfare, and
secure the blessings of liberty to ourselves and our posterity."

In accordance with these purposes, the State has a right to insist that its citizens shall he
educated. It should encourage among the people such a love of learning that they will take the
initiative and, without constraint, provide for the education of their children. Should they,
through negligence or lack of means fail to do so, the State has the right to establish schools and
take every other legitimate means to safeguard its vital interests against the dangers that result
from ignorance. In particular, it has both the right and the duty to exclude the teaching of
doctrines which aim at the subversion of law and order and therefore at the destruction of the
State itself.

The State is competent to do these things because its essential function is to promote the general
welfare. But on the same principle it is bound to respect and protect the rights of the citizen, and
especially of the parent. So long as these rights are properly exercised, to encroach upon them is
not to further the general welfare, but to put it in peril. If the function of government is to protect
the liberty of the citizen, and if the aim of education is to prepare the individual for the rational
use of his liberty, the State cannot rightfully or consistently make education a pretext for
interfering with rights and liberties which the Creator, not the State, has conferred. Any
advantage that might accrue even from a perfect system of State education would be more than
offset by the wrong which the violation of parental rights would involve. In our country,
government thus far has wisely refrained from placing any other than absolutely necessary
restrictions upon private initiative. The result is seen in the development of our resources, the
products of inventive genius and the magnitude of our enterprises. But our most valuable
resources are the minds of our children, and for their development at least the same scope should
be allowed to individual effort as is secured to our undertakings in the material order.

The spirit of our people in general is adverse to State monopoly and this for the obvious reason
that such absorption of control would mean the end of freedom and initiative. The same
consequence is sure to follow when the State attempts to monopolize education; and the disaster
will be greater inasmuch as it will affect, not simply the worldly interests of the citizen, but also
his spiritual growth and salvation.

There are other public educational institutions which can scarcely be called absolutely necessary,
and yet which are so useful that they may very properly be conducted by the State. Such are
museums, art galleries, libraries, zoological gardens, scientific bureaus, laboratories, and
experiment stations. The services rendered by these agencies contribute much to the common
welfare and they could not, as a rule, be adequately carried on by private effort.
Public Charity The principle that the State should do only those things which cannot be done as
well by private action, applies with especial force to the field of charity. In general, this principle
rests upon the fundamental truth that the individual reaches a higher degree of self-development
when he does things for himself than when the State does things for him. In the province of
charity this fact is illustrated with regard both to the receiver and the giver. The former is more
likely to seek unnecessary assistance from the State than from an individual; the latter is more
likely to infuse his charity with human sympathy than is the State; and his incentives to
charitable action are diminished if the State does too much. In both cases harm is done to
individual development.

Nevertheless, the charitable functions of the State are numerous and important, In the field of
prevention, it can and should use all proper and possible methods to provide that kind of social
environment which renders charitable relief unnecessary. Under this head comes a large list of
industrial, educational, sanitary and moral provisions, to assure people a reasonable minimum of
the material conditions of living. Some of these are stated in detail in later paragraphs of this
chapter. In the field of relief, the State is frequently required to maintain hospitals, asylums,
almshouses and corrective institutions; to grant subsidies to private institutions and agencies
engaged in these works, and even to provide for needy persons outside of institutions. Whether
and to what extent the State should undertake any of these tasks is always to be determined by
the answer which the actual situation gives to the question: can the State do the work better, all
things considered, than private agencies? "All things considered," refers to remote as well as
immediate results. For example, it is conceivable that the State might take care of all dependent
children more cheaply than could private associations, but this action ought not to be taken if it
would lead to a notable decline in charitable feeling, responsibility, and initiative among
individuals.

Public Health, Safety, Morals, and Religion. The State should protect its citizens against disease,
by sanitary regulations, such as those relating to quarantine, inoculation, medical inspection of
school children, impure drugs, adulterated food, and the disposal of garbage. It should safeguard
their physical integrity, by such measures as traffic rules, safety requirements for public
conveyances, and building regulations. It should, as far as possible, provide them with a good
moral environment through the regulation or repression of the liquor traffic, through the
suppression of divorce, prostitution, public gambling, and indecent pictures, printed matter,
theatrical productions, and places of amusement. Finally, the State is under obligation to protect
and promote religion in all ways that are lawful and effective. Here we may appropriately quote
the words of Pope Benedict XV:

Let princes and rulers of the people bear this in mind and bethink themselves whether it be wise
and salutary, either for public authority or for the nations themselves, to set aside the holy
religion of Jesus Christ, in which that very authority may find such powerful support and
defense. Let them seriously consider whether it be the part of political wisdom to exclude from
the ordinance of the State and from public instruction, the teaching of the Gospel and of the
Church. Only too well does experience show that when religion is banished, human authority
totters to its fall. That which happened to the first of our race when he failed in his duty to God,
usually happens to nations as well. Scarcely had the will in him rebelled against God when the
passions arose in rebellion against the will; and likewise, when the rulers of the people disdain
the authority of God, the people in turn despise the authority of men. There remains, it is true, the
usual expedient of suppressing rebellion by force; but to what effect? Force subdues the bodies
of men, not their souls.
All these matters are of vital importance for public welfare, and some of them are even included
within the primary functions of the State, inasmuch as they involve the protection of natural
rights. None of them can be adequately dealt with by private effort.

Industrial Regulation, Owing to the complexity of modern industrial conditions, this function of
the State is more important than in any preceding age. Owing to its effect upon the pecuniary
interests of individuals, it has been more strongly criticized than any other activity of the State.
Not much opposition has been offered to State regulation of banks. All reasonable men recognize
that the public must be protected through requirements concerning incorporation, minimum of
capital and surplus, liability of stockholders, nature of investments, amount and kind of reserves,
the issuing of notes, and public inspection and supervision.

The regulation of commerce, public utilities and manufactures, has a varied scope and may be
exercised i n various ways. Foreign commerce may be regulated through taxes and embargoes on
imports and exports, and by other methods of restriction. The regulation of domestic commerce
takes many forms: intoxicating liquors, tobacco, explosives, drugs and other commodities are
subjected to a system of licensing, or special taxation, or other kinds of legal supervision;
railroads are forbidden to exact more than certain maximum charges for carrying goods and
passengers, and are compelled to maintain certain standards of service; and such municipal
utilities as street railways and lighting concerns must submit to similar requirements.
Commercial contracts which are clearly extortionate, such as loans of money at usurious rates,
are generally prohibited by law. In this matter the policy of governments is not in accord with the
individualistic theory that all technically "free" contracts ought to be legally enforced. As a
matter of fact, such contracts are not free in any fair sense. All the foregoing regulations promote
the public welfare and are evidently among the proper functions of the State.

The most important public regulation of manufactures is that which strives to prevent unfair
dealing and extortion by monopolistic corporations. In some form this is a very ancient practice
of the State. Many centuries ago, legislators became aware that human beings cannot be trusted
to exercise monopoly power with fairness to either competitors or consumers. Today the most
enlightened governments have numerous and complex statutes to prevent and punish both these
forms of injustice. Such measures are clearly justified, not only to promote the public good, but
also as an exercise of the primary function of the State, namely, the protection of natural rights.
They are intended to prevent and punish unjust dealing and extortion. Nevertheless, they have
not adequately attained that end. Additional measures are required, to limit still further the
"individual freedom" of the monopolist to treat his fellows unjustly. Legal determination of
maximum prices, government regulation of supply and distribution, and State competition in the
manufacturing or other business carried on by a monopolistic concern, -- are the principal new
methods that have been suggested. In so far as they are necessary and would prove adequate to
protect the general welfare, they can undoubtedly be classed among the proper functions of the
State. Since the main object is to prevent the imposition of extortionate prices upon the consumer
and the receipt of excessive profits and interest by the monopoly, these and all other regulatory
measures are directed against that "rapacious usury, which, although more than once condemned
by the Church, is nevertheless, under a different guise but with the like injustice, still practiced
by covetous and grasping men.

Probably the most necessary and beneficent group of industrial regulations are those which apply
to the labor contract and the conditions of labor. The principal subjects covered are wages, hours
of labor, child labor, woman labor, safety and sanitation in work places, accidents, sickness, old
age and unemployment. As regards wages, legislation has been enacted regulating the manner
and frequency of payment, and fixing minimum rates of remuneration. Underlying most of the
latter measures is the theory that no wage earner should be required to accept less than the
equivalent of a decent livelihood. So long as millions of workers are unable to obtain this decent
minimum through their own efforts or through the benevolence of the employer, they have
clearly the right to call upon the intervention of the State. In other words, the enactment of
minimum wage legislation is among the State's primary as well as secondary functions. Laws
prohibiting an excessively long working day, the employment of young children, the
employment of women in occupations unsuited to their sex, the existence of unsafe and
unsanitary work places, -- are all likewise included among both the primary and the secondary
functions of government. Legal provisions for the prevention and adjustment of industrial
disputes, and to insure the workers against accidents, sickness, unemployment, invalidity and old
age, have been made by various countries. They evidently represent a normal exercise of, at
least, the secondary functions of the State.

To the foregoing legal measures for the protection of labor may pertinently be applied the
principle laid down by Pope Leo XIII: "Whenever the general interest, or any particular class
suffers or is threatened with injury which can in no other way be met or prevented, it is the duty
of the public authority to intervene." Indeed, the great Pontiff himself applied the principle quite
specifically to the conditions and needs of the working class. He said: "When there is question of
defending the rights of individuals, the poor and helpless have a claim to especial consideration.
The richer class has many ways of shielding themselves, and stands less in need of help from the
State; whereas, those who are badly off have no resources of their own to fall back upon, and
must chiefly depend upon the assistance of the State. And it is for this reason that wage-earners,
who are undoubtedly among the weak and necessitous, should be specially cared for and
protected by the government."

Our discussion of the end and functions of the State may fittingly close with the following
declaration of the great Catholic authority on law, Francisco Suarez:

"The object of civil legislation is the natural welfare of the community of its individual members,
in order that they may live in peace and justice, with a sufficiency of those goods that are
necessary for physical conservation, and comfort, and with those moral conditions which are
required for private well-being and public prosperity."

ELEMENTS OF STATE
1. Population
2. Sovereignty
3. Definite territory
4. Government

THE RELATIONSHIP OF STATE AND LAW

One of the first courses (often the first) studied in law schools throughout the Soviet Union, and
still studied by entering students in post-Soviet law schools, is the famous — no, the infamous —
Theory of State and Law (TSL).

The classical TSL focused (and still focuses) on "interior" and "exterior" functions of
governance. The interior functions include the state budget, focused on enhancing the economic
development of the country; the reduction of unemployment; the social protection of citizens; the
improvement of public health and public infrastructures (transportation, water, sewage,
electricity, gas, etc.); and law enforcement, especially the "struggle against infringement of laws"
(but without discussion of whether the government is itself governed by laws). The exterior
functions include "maintaining mutually beneficial relations with foreign countries" and
"defending the country against aggression."

Students are assured that "every country" understands and adopts the fundamental goals and
institutions of law and government set forth in the TSL. Not surprisingly, during Soviet times the
TSL did not give a whiff of attention to liberty, equality under law, and the need for an
independent judicial branch to determine facts and apply law without fear or favor; the TSL did
not mention the necessity for free and fair elections; and it was bereft of the history of
constitutional democracy and the fundamentals of the Rule of Law. And what of today? What is
taught as the ruling paradigm governing "state and law" more than two decades after the Soviet
Union collapsed?

It is generally assumed that man is a socio-political animal, that man and society are mutually
inextricable, and that no one can lead the life of the island (like the lonely Robinson Crusoe the
ship-wrecked man trapped on an island). Such a world would simply be boring and meaningless.
From the moment necessity endeared man to live beyond subsistence and evolve society, the
questions have ever re-echoed: What is law? What is the role of law in the state? What are the
rights and obligations of the citizens in the state? These rights and obligations vary from the
intellectual, political, economic, judicial, to the freedom of expression, property ownership,
equity and justice. However, the obligations and rights of the citizenry are actualized or negated
according to the nature of law within a particular state.

The state is a personified abstraction. It often signifies the laws of the federation or a republic. It
is in this sense that the state is said to have a geographical expression. A nation nonetheless
refers to a people and the way they live (i.e. by their norms and customs). A nation state
therefore, will include the people and the laws of the land.

Law is the fountain head that nurtures, or is nurtured by other elements of social organization
such as politics, economics, sociology, psychology and religion…. Kings and Princes, Chiefs
and Priests, Bishops and Mullahs, Proletariat and Soldier and, indeed, any person or group of
persons who hold(s) the reigns of power or governance over a group of people does so on the
basis of law. A lawfully authorized government rules by law in the same way as usurpers to
power must resort to some form of law to gain legitimacy and control.

(b) : Nature and development of Sovereignty

Sovereignty, in layman's terms, means a state or a governing body has the full right and power
to govern itself without any interference from outside sources or bodies. In political theory,
sovereignty is a substantive term designating supreme authority over some polity. It is a basic
principle underlying the dominant Westphalian model of state foundation.

Derived from Latin through French souveraineté, its attainment and retention, in both Chinese
and Western culture, has traditionally been associated with certain moral imperatives upon any
claimant.
Sovereignty reemerged as a concept in the late 16th century, a time when civil wars had created a
craving for stronger central authority, when monarchs had begun to gather power onto their own
hands at the expense of the nobility, and the modern nation state was emerging. Jean Bodin,
partly in reaction to the chaos of the French wars of religion, presented theories of sovereignty
calling for strong central authority in the form of absolute monarchy. In his 1576 treatise Les Six
Livres de la République ("Six Books of the Republic") Bodin argued that it is inherent in the
nature of the state that sovereignty must be:

1. Absolute: On this point he said that the sovereign must be hedged in with obligations and
conditions, must be able to legislate without his (or its) subjects' consent, must not be
bound by the laws of his predecessors, and could not, because it is illogical, be bound by
his own laws.
2. Perpetual: Not temporarily delegated as to a strong leader in an emergency or to a state
employee such as a magistrate. He held that sovereignty must be perpetual because
anyone with the power to enforce a time limit on the governing power must be above the
governing power, which would be impossible if the governing power is absolute.

Bodin rejected the notion of transference of sovereignty from people to sovereign; natural law
and divine law confer upon the sovereign the right to rule. And the sovereign is not above divine
law or natural law. He is above. not bound by) only positive law, that is, laws made by humans.
The fact that the sovereign must obey divine and natural law imposes ethical constraints on him.
Bodin also held that the lois royales, the fundamental laws of the French monarchy which
regulated matters such as succession, are natural laws and are binding on the French sovereign.
How divine and natural law could in practice be enforced on the sovereign is a problematic
feature of Bodin's philosophy: any person capable of enforcing them on him would be above him

During the Age of Enlightenment, the idea of sovereignty gained both legal and moral force as
the main Western description of the meaning and power of a State. In particular, the "Social
Contract" as a mechanism for establishing sovereignty was suggested and, by 1800, widely
accepted, especially in the new United States and France, though also in Great Britain to a lesser
extent.

Thomas Hobbes, in Leviathan (1651) borrowed Bodin's definition of sovereignty, which had just
achieved legal status in the "Peace of Westphalia", and explained its origin. He created the first
modern version of the social contract (or contractarian) theory, arguing that to overcome the
"nasty, brutish and short" quality of life without the cooperation of other human beings, people
must join in a "commonwealth" and submit to a "Soveraigne] Power" that is able to compel them
to act in the common good. This expediency argument attracted many of the early proponents of
sovereignty. Hobbes strengthened the definition of sovereignty beyond either Westphalian or
Bodin's, by saying that it must be]
 1. Absolute: because conditions could only be imposed on a sovereign if there were some
outside arbitrator to determine when he had violated them, in which case the sovereign
would not be the final authority.
2. Indivisible: The sovereign is the only final authority in his territory; he does not share
final authority with any other entity. Hobbes held this to be true because otherwise there
would be no way of resolving a disagreement between the multiple authorities.

Hobbes' hypothesis that the ruler's sovereignty is contracted to him by the people in return for his
maintaining their physical safety, led him to conclude that if and when the ruler fails, the people
recover their ability to protect themselves, including by forming a new contract.

Hobbes's theories decisively shape the concept of sovereignty through the medium of social
contract theories. Jean-Jacques Rousseau's (1712–1778) definition of popular sovereignty (with
early antecedents in Francisco Suárez's theory of the origin of power), which only differs in that
he considers the people to be the legitimate sovereign. Likewise, it is inalienable – Rousseau
condemned the distinction between the origin and the exercise of sovereignty, a distinction upon
which constitutional monarchy or representative democracy is founded. John Locke, and
Montesquieu are also key figures in the unfolding of the concept of sovereignty, and differ with
Rousseau and with Hobbes on this issue of alienability.

The second book of Jean-Jacques Rousseau's Du Contrat Social, ou Principles du droit politique
(1762) deals with sovereignty and its rights. Sovereignty, or the general will, is inalienable, for
the will cannot be transmitted; it is indivisible, since it is essentially general; it is infallible and
always right, determined and limited in its power by the common interest; it acts through laws.
Law is the decision of the general will in regard to some object of common interest, but though
the general will is always right and desires only good, its judgment is not always enlightened,
and consequently does not always see wherein the common good lies; hence the necessity of the
legislator. But the legislator has, of himself, no authority; he is only a guide who drafts and
proposes laws, but the people alone (that is, the sovereign or general will) has authority to make
and impose them. Rousseau, in his 1763 treatise Of the Social Contractrgued, "the growth of the
State giving the trustees of public authority more and means to abuse their power, the more the
Government has to have force to contain the people, the more force the Sovereign should have in
turn in order to contain the Government," with the understanding that the Sovereign is "a
collective being of wonder" (Book II, Chapter I) resulting from "the general will" of the people,
and that "what any man, whoever he may be, orders on his own, is not a law" (Book II, Chapter
VI) – and furthermore predicated on the assumption that the people have an unbiased means by
which to ascertain the general will. Thus the legal maxim, "there is no law without a sovereign."

The rule of law (also known as monocracy) is the legal principle that law should govern a nation,
as opposed to arbitrary decisions by individual government officials. It primarily refers to the
influence and authority of law within society, particularly as a constraint upon behavior,
including behavior of government officials.[2] The phrase can be traced back to 16th century
England, and it was popularized in the 19th century by British jurist A. V. Dicey. The concept
was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern".[3]

Rule of law implies that every citizen is subject to the law, including law makers themselves. In
this sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy
where the rulers are held above the law (which is not necessary by definition but which is
typical). Lack of the rule of law can be found in democracies and dictatorships, and can happen
because of neglect or ignorance of the law, corruption, or lack of corrective mechanisms for
administrative abuse, such as an independent judiciary with a rule-of-law culture, a practical
right to petition for redress of grievances, or elections.

(c): Nature and kinds of law and theories of justice

Law is a system of rules that are enforced through social institutions to govern behavior. Laws
can be made by legislatures through legislation (resulting in statutes), the executive through
decrees and regulations, or judges through binding precedent (normally in common law
jurisdictions). Private individuals can create legally binding contracts, including (in some
jurisdictions) arbitration agreements that may elect to accept alternative arbitration to the normal
court process. The formation of laws themselves may be influenced by a constitution (written or
unwritten) and the rights encoded therein. The law shapes politics, economics, and society in
various ways and serves as a mediator of relations between people.

A general distinction can be made between

(a) civil law jurisdictions (including cano and socialist law), in which the legislature or other
central body codifies and consolidates their laws, and

(b) common law systems, where judge-made precedent is accepted as binding law. Historically,
religious laws played a significant role even in settling of secular matters, which is still the case
in some religious communities, particularly Jewish, and some countries, particularly Islamic.
Islamic Sharia law is the world's most widely used religious law

The adjudication of the law is generally divided into two main areas referred to as

(i) Criminal law and

(ii) Civil law.

Criminal law deals with conduct that is considered harmful to social order and in which the
guilty party may be imprisoned or fined. Civil law (not to be confused with civil law
jurisdictions above) deals with the resolution of lawsuits (disputes) between individuals or
organizations. These resolutions seek to provide a legal remedy (often monetary damages) to the
winning litigant. Under civil law, the following specialties, among others, exist: Contract law
regulates everything from buying a bus ticket to trading on derivatives markets. Property law
regulates the transfer and title of personal property and real property. Trust law applies to assets
held for investment and financial security. Tort law allows claims for compensation if a person's
property is harmed. Constitutional law provides a framework for the creation of law, the
protection of human rights and the election of political representatives. Administrative law
governs what executive branch agencies may and may not do, procedures that they must follow
to do it, and judicial review when a member of the public is harmed by an agency action.
International law governs affairs between sovereign states in activities ranging from trade to
military action. To implement and enforce the law and provide services to the public by public
servants, a government's bureaucracy, military, and police are vital. While all these organs of the
state are creatures created and bound by law, an independent legal profession and a vibrant civil
society inform and support their progress.

Law provides a rich source of scholarly inquiry into legal history, philosophy, economic analysis
and sociology. Law also raises important and complex issues concerning equality, fairness, and
justice. There is an old saying that 'all are equal before the law'. In 1894, the author Anatole
France said sarcastically, "In its majestic equality, the law forbids rich and poor alike to sleep
under bridges, beg in the streets, and steal loaves of bread. Writing in 350 BC, the Greek
philosopher Aristotle declared, "The rule of law is better than the rule of any individual." Mikhail
Bakunin said: "All law has for its object to confirm and exalt into a system the exploitation of the
workers by a ruling class Cicero said "more law, less justice Marxist doctrine asserts that law
will not be required once the state has withered away.

Punishment is the authoritative imposition of an undesirable or unpleasant outcome upon a group

or individual, in response to a particular action or behavior that is deemed unacceptable or
threatening to a norm. The unpleasant imposition may include a fine, penalty, or confinement, or
be the removal or denial of something pleasant or desirable. The individual may be a person, or
even an animal. The authority may be either a group or a single person, and punishment may be
carried out formally under a system of law or informally in other kinds of social settings such as
within a family.[ Negative consequences that are not authorized or that are administered without
a breach of rules are not considered to be punishment as defined here. The study and practice of
the punishment of crime, particularly as it applies to imprisonment, is called penology, or, often
in modern texts, corrections; in this context, the punishment process is euphemistically called
"correctional process". Research into punishment often includes similar research into prevention.

Justifications for punishment include retribution, deterrence, rehabilitation and incapacitation the
last could include such measures as isolation, in order to prevent the wrongdoer's having contact
with potential victims, or the removal of a hand in order to make theft more difficult. Of the four
justifications, only retribution is part of the definition of punishment and none of the other
justifications is a guaranteed outcome, aside from obvious exceptions such as an executed man
being incapacitated with regard to further crimes.

If only some of the conditions included in the definition of punishment are present, descriptions
other than "punishment" may be considered more accurate. Inflicting something negative, or
unpleasant, on a person or animal, without authority is considered spite or revenge rather than
punishment. In addition, the word "punishment" is used as a metaphor, as when a boxer
experiences "punishment" during a fight. In other situations, breaking a rule may be rewarded,
and so receiving such a reward naturally does not constitute punishment. Finally the condition of
breaking (or breaching) the rules must be satisfied for consequences to be considered
punishment. Punishments differ in their degree of severity, and may include sanctions such as
reprimands, deprivations of privileges or liberty, fines, incarceration, ostracism the infliction of
pain, amputation and the death penalty. Corporal punishment refers to punishments in which
physical pain is intended to be inflicted upon the transgressor. Punishments may be judged as fair
or unfair in terms of their degree of reciprocity and proportionality Punishment can be an integral
part of socialization, and punishing unwanted behavior is often part of a system of pedagogy or
behavioral modification which also includes rewards.

THEORIES OF PUNISHMENT

1. Deterrent Theory
2. Retributive Theory
3. Preventive Theory
4. Reformative Theory
5. Expiatory Theory
Unit –II: SOURCES OF LAW

(a)custom

Customs have always been an important source of law. The two bones of contention regarding
customs in Hindu Law are however: Its validity under the smriti law. Its relevancy to castes and
tribes which are not governed by the smriti law.

Because of the working women belonging to the lower strata of the society, the various castes
and tribes had relatively more woman oriented inheritance laws as opposed to the higher castes
where women mostly just maintained the household. This is the reason why the efforts were at
first made to make laws uniform across Hindu Law.

Among the pagan Arabs before Islam, inheritance rights were confined exclusively to the male
relatives. The Koran abolished all these unjust customs and gave all the female relatives
inheritance shares:

"From what is left by parents and those nearest related there is a share for men and a share for
women, whether the property be small or large --a determinate share"

Muslim mothers, wives, daughters, and sisters had received inheritance rights thirteen hundred
years before Europe recognized that these rights even existed. The division of inheritance is a
vast subject with an enormous amount of details. The general rule is that the female share is half
the males except the cases in which the mother receives equal share to that of the father. This
general rule if taken in isolation from other legislations concerning men and women may seem
unfair. The view of Muslim Scholars and Law-makers on this issue is however is as follows, in
order to understand the rationale behind this rule, it is necessary to keep in mind that the
financial burdens on a Muslim male is more than that on a female. During marriage, a Muslim
husband is expected to give gifts to his wife whereas there is no such expectation attached to the
wife. Also the earnings of the husband are usually earmarked for the maintenance of parents,
wife and children and unmarried or widowed sisters if any. The wife on the other hand enjoys all
benefits of her property and earnings. She has no liability to maintain anybody. To add to it all,
Islam as a faith propagates the idea of marriage, denounces divorce and does not treat celibacy or
abstinence as a virtue. Therefore it is the preaching of family life all the way. And hence it is
evident that a male member of an Islamic family has more financial liability than a woman,
therefore his share in a property distribution should be logically more and therefore inheritance
rules are meant to offset this imbalance so that the society lives free of all gender or class wars.

Prior to the uniformisation and codification of laws however, it is the customs or personal laws
as we call them, which guided the various religions and also different castes and tribes within the
religion. Since ancient times the framing of all property laws have been exclusively for the
benefit of man, and woman have been treated as subservient, and dependent on male support.
The right to property is important for the freedom and development of a human being. And
irrespective of how much a religion might try to justify the giving of lesser property rights to a
woman, it is unfair and absolutely uncalled for in today's society as well as the society in which
such laws existed and were passed on through generations.

Following are the essential elements of a custom:

1. Antiquity:

A custom must be in existence from time immemorial. English law fixed the year 1189 to test the
antiquity of a custom. A custom must be in existence prior to 1189, only then it can prove the
consideration of antiquary. Under Hindu law also immemorial customs are transcendental law.
However India law does not fix any particular year to test the antiquity of custom.

2. Continuance:

A custom must be practiced without interruption; continuity is an essential feature of the custom.
Continuity does not mean that it should be in operation all the time. It means that there should be
a continuous availability of the terms of the customs to deal with particular rule of conduct with
which it deals. Presence 6f custom if fact and its enforceability both are essential to prove
antiquity. If a custom becomes legally unenforceable even for a short time it would not the
recognized as a valid' custom.

3. Peaceable enjoyment:

It is essential that custom must have been enjoyed peacefully by the concerned people.

4. Matter of right:

Custom must have been enjoyed as a matter of right. This right should be enforceable. Thus
custom must result in creating obligatory force at the one hand and related claim on the other
hand. If a practice is observed as a courtesy and not as a matter of right then it can be termed a
"custom" in legal sense.

5. Certainty:

Custom must be certain. If the nature of the custom is not certain then it loses its validity.
Custom originate from general consent, it is hard to determine existence of consent, on
something which is not certain.
6. Consistency:

A custom must not be in conflict with other prevailing customs. The customs must be in
consistency with other custom. Difference or inconsistency in custom will amount to different
rule of conduct for a given situation; it will negotiate the general consent.

7. Conformity with statute law:

Custom should be conformity with statute law. A legislative enactment can abrogate a custom. In
case of inconsistency between custom and statutory provision, former must give way to the
latter. Thus, custom yield legislative enactment.

Kinds of custom Customs are divided into-

1. Local customs- are confined to a particular locality like a district, town or village.

2. Class customs – are the customs of a caste or a sect of the community or the followers of
a particular profession or occupation.

3. Family customs – are confined to a particular family only, and do not apply to those who
are not members of such family

(b) Precedent

The precedent on an issue is the collective body of judicially announced principles that a court
should consider when interpreting the law. When a precedent establishes an important legal
principle, or represents new or changed law on a particular issue, that precedent is often known
as a landmark decision.

Precedent is central to legal analysis and rulings in countries that follow common law like the
United Kingdom and Canada (except Quebec). In some systems precedent is not binding but is
taken into account by the courts.

Types of precedent

Binding precedent

Precedent that must be applied or followed is known as binding precedent (alternately

mandatory precedent, mandatory or binding authority, etc.). Under the doctrine of stare decisis,
a lower court must honor findings of law made by a higher court that is within the appeals path
of cases the court hears. In the United States state and federal courts, jurisdiction is often divided
geographically among local trial courts, several of which fall under the territory of a regional
appeals court, and all regional courts fall under a supreme court. By definition decisions of lower
courts are not binding on each other or any courts higher in the system, nor are appeals court
decisions binding on each other or on local courts that fall under a different appeals court.
Further, courts must follow their own proclamations of law made earlier on other cases, and
honor rulings made by other courts in disputes among the parties before them pertaining to the
same pattern of facts or events, unless they have a strong reason to change these rulings.

One law professor has described mandatory precedent as follows:

Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent

of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means
that: (1) the question resolved in the precedent case is the same as the question to be resolved in
the pending case, (2) resolution of that question was necessary to disposition of the precedent
case; (3) the significant facts of the precedent case are also present in the pending case, and (4)
no additional facts appear in the pending case that might be treated as significant

In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but
will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of
the precedent in any event.

Persuasive precedent

Precedent that is not mandatory but which is useful or relevant is known as persuasive precedent
(or persuasive authority or advisory precedent). Persuasive precedent includes cases decided by
lower courts, by peer or higher courts from other geographic jurisdictions, cases made in other
parallel systems (for example, military courts, administrative courts, indigenous/tribal courts,
State courts versus Federal courts in the United States), and in some exceptional circumstances,
cases of other nations, treaties, world judicial bodies, etc.

In a case of first impression, courts often rely on persuasive precedent from courts in other
jurisdictions that have previously dealt with similar issues. Persuasive precedent may become
binding through the adoption of the persuasive precedent by a higher court.

Case law

The other type of precedent is case law. In common law systems this type of precedent is granted
more or less weight in the deliberations of a court according to a number of factors. Most
important is whether the precedent is "on point," that is, does it deal with a circumstance
identical or very similar to the circumstance in the instant case? Second, when and where was the
precedent decided? A recent decision in the same jurisdiction as the instant case will be given
great weight. Next in descending order would be recent precedent in jurisdictions whose law is
the same as local law. Least weight would be given to precedent that stems from dissimilar
circumstances, older cases that have since been contradicted, or cases in jurisdictions that have
dissimilar law.

Critical analysis of precedent

Precedents viewed against passing time can serve to establish trends, thus indicating the next
logical step in evolving interpretations of the law. For instance, if immigration has become more
and more restricted under the law, then the next legal decision on that subject may serve to
restrict it further still.

Scholars have recently attempted to apply network theory to precedents in order to establish
which precedents are most important or authoritative, and how the court's interpretations and
priorities have changed over time

Super stare decisis

Super-stare decisis are a term used for important precedent that is resistant or immune from
being overturned, without regard to whether correctly decided in the first place. It may be viewed
as one extreme in a range of precedential power, or alternately, to express a belief, or a critique
of that belief, that some decisions should not be overturned.

In 1976, Richard Posner and William Landes coined the term "super-precedent," in an article
they wrote about testing theories of precedent by counting citations. Posner and Landes used this
term to describe the influential effect of a cited decision. The term "super-precedent" later
became associated with different issue: the difficulty of overturning a decision. In 1992, Rutgers
professor Earl Maltz criticized the Supreme Court's decision in Planned Parenthood v. Casey for
endorsing the idea that if one side can take control of the Court on an issue of major national
importance (as in Roe v. Wade), that side can protect its position from being reversed "by a kind
of super-stare decisis."

The issue arose anew in the questioning of Chief Justice John G. Roberts and Justice Samuel
Alito during their confirmation hearings before the Senate Judiciary Committee. Before the
hearings the chair of the committee, Senator Arlen Specter of Pennsylvania, wrote an op/ed in
the New York Times referring to Roe as a "super-precedent." He mentioned the concept (and
made seemingly humorous references to "super-duper precedent") during the hearings, but
neither neither Roberts nor Alito endorsed the term or the concept.
Ratio decidendi

Ratio decidendi (Latin plural rationes decidendi) is a Latin phrase meaning "the reason" or "the
rationale for the decision". The ratio decidendi is "the point in a case which determines the
judgment" or "the principle which the case establishes".

In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of
legal reasoning within a judgment on which the outcome of the case depends.

It is a legal phrase which refers to the legal, moral, political, and social principles used by a court
to compose the rationale of a particular judgment. Unlike obiter dicta, the ratio decidendi is, as a
general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare
decisis. Certain courts are able to overrule decisions of a court of coordinate jurisdiction—
however, out of interests of judicial comity, they generally try to follow coordinate rationes.

The process of determining the ratio decidendi is a correctly thought analysis of what the court
actually decided—essentially, based on the legal points about which the parties in the case
actually fought. All other statements about the law in the text of a court opinion—all
pronouncements that do not form a part of the court's rulings on the issues actually decided in
that particular case (whether they are correct statements of law or not)—are obiter dicta, and are
not rules for which that particular case stands

The ratio decidendi is one of the most powerful tools available to a lawyer. With a proper
understanding of the ratio of a precedent, the advocate can in effect force a lower court to come
to a decision which that court may otherwise be unwilling to make, considering the facts of the
case.

The search for the ratio of a case is a process of elucidation; one searches the judgment for the
abstract principles of law which have led to the decision and which have been applied to the facts
before the court. As an example, the ratio in Donoghue v. Stevenson would be that a person owes
a duty of care to those who he can reasonably foresee will be affected by his actions.

All decisions are, in the common law system, decisions on the law as applied to the facts of the
case. Academic or theoretical points of law are not usually determined. Occasionally, a court is
faced with an issue of such overwhelming public importance that the court will pronounce upon
it without deciding it. Such a pronouncement will not amount to a binding precedent, but is
instead called an orbiter dictum.
Ratio decidendi also involves the holding of a particular case, thereby allowing future cases to
build upon such cases by citing precedent. However, not all holdings are given equal merit;
factors that can strengthen or weaken the strength of the holding include:

• Rank of the court (Supreme Court versus an appellate court)

• Number of issues decided in the case (multiple issues may result in a so-called "multi-
legged holdings")
• Authority or respect of the judge(s)
• Number of concurring and dissenting judges
• New applicable statutes
• Similarity of the environment as opposed to the age of the holding

The ability to isolate the abstract principle of law in the pragmatic application of that abstraction
to the facts of a case is one of the most highly prized legal skills in the common law system. The
lawyer is searching for the principles which underlined and underlay the court's decision.

Challenges

The difficulty in the search for the ratio becomes acute when unlike in the decisions of the Court
of Appeal or the House of Lords, more than one judgment is promulgated. A dissenting
judgment on the point is not binding and cannot be the ratio. However, one will sometimes find
decisions in which, for example, five judges are sitting the House of Lords, all of whom purport
to agree with one another but in each of whose opinions one is able to discern subtly different
ratios. An example is the case of Kay v Lambeth LBC, on which a panel of seven of their
Lordships sat and from whose opinions emerged a number of competing ratios, some made
express by their Lordships and others implicit in the decision.

Another problem may arise in older cases where the ratio and obiter are not explicitly separated,
as they are today. In such a case, it may be difficult to locate the ratio, and on occasion, the
courts have been unable to do so.

Such interpretative ambiguity is inevitable in any word-bound system. Codification of the law,
such as has occurred in many systems based on Roman law, may assist to some extent in
clarification of principle but is considered by some common lawyers anathema to the robust,
pragmatic, and fact-bound system of English law.

Obiter dictum

Obiter dictum (more usually used in the plural, obiter dicta) is Latin for a word said "by the way
that is, a remark in a judgment that is "said in passing". It is a concept derived from English
common law. For the purposes of judicial precedent, ratio decidendi is binding, whereas obiter
dicta are persuasive only

Significance of obiter dicta

A judicial statement can be ratio decidendi only if it refers to the crucial facts and law of the
case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law
issues, are obiter dicta. Obiter dicta (often simply dicta, or obiter) are remarks or observations
made by a judge that, although included in the body of the court's opinion, do not form a
necessary part of the court's decision. In a court opinion, obiter dicta include, but are not limited
to, words "introduced by way of illustration, or analogy or argument".[2] Unlike ratio decidendi,
obiter dicta are not the subject of the judicial decision, even if they happen to be correct
statements of law. The so-called Wambaugh's Inversion Test provides that to determine whether
a judicial statement is ratio or obiter, you should invert the argument, that is to say, ask whether
the decision would have been different, had the statement been omitted. If so, the statement is
crucial and is ratio; whereas if it is not crucial, it is obiter.

An example of an instance where a court opinion may include obiter dicta is where a court rules
that it lacks jurisdiction to hear a case or dismisses the case on a technicality. If the court in such
a case offers opinions on the merits of the case, such opinions may constitute obiter dicta. Less
clear-cut instances of obiter dicta occur where a judge makes a side comment in an opinion to
provide context for other parts of the opinion, or makes a thorough exploration of a relevant area
of law. Another example would be where the judge, in explaining his or her ruling, provides a
hypothetical set of facts and explains how he or she believes the law would apply to those facts.

University of Florida scholars Teresa Reid-Rambo and Leanne Pflaum explain the process by
which obiter dicta may become binding. They write that:

"In reaching decisions, courts sometimes quote passages of obiter dicta found in the texts of the
opinions from prior cases, with or without acknowledging the quoted passage's status as obiter
dicta. A quoted passage of obiter dicta may become part of the holding or ruling in a subsequent
case, depending on what the latter court actually decided and how that court treated the principle
embodied in the quoted pass Negligence is the failure to exercise the required amount of care to
prevent injury to others. For example, if you cause an accident that injures someone or damages
their vehicle because you were driving at an unsafe speed, then you could be sued for negligence.

In some cases, the law imposes absolute liability (aka strict liability) on specific parties
without regard to fault, and, therefore, obviates the need to prove fault in court. For
instance, manufacturers are held strictly liable for defective products that they manufacture.
Sometimes, the law designates other parties as being responsible, whether they are or not.
Imputed negligence results in vicarious liability, where the principal is responsible for the acts of
his agents. For example, employers have vicarious liability for the actions of their employees. If
an employee injures someone in the course of employment, then it doesn't matter whether the
employer could have done anything to prevent it—the employer will be held liable regardless.
Other instances of imputed negligence is through the effect of the family purpose doctrine that
holds parents responsible for the negligent acts of their children, or the dram shop law, which
holds the seller of alcoholic beverages liable for drunken patrons. If a patron drives after drinking
at a tavern, and subsequently kills or injures someone with his vehicle, then the tavern owner can
be held liable.

(c)LEGISLATION

Legislation (or "statutory law") is law which has been promulgated (or "enacted") by a legislatur
or other governing body or the process of making it. (Another source of law is judge-made law
or case law.) Before an item of legislation becomes law it may be known as a bill, and may be
broadly referred to as "legislation", while it remains under consideration to distinguish it from
other business. Legislation can have many purposes: to regulate, to authorize, to proscribe, to
provide (funds), to sanction, to grant, to declare or to restrict. It may be contrasted with a non-
legislative act which is adopted by an executive or administrative body under the authority of a
legislative act or for implementing a legislative act. Under the Westminster system, an item of
primary legislation is known as an Act of Parliament after enactment.

Legislation is usually proposed by a member of the legislature (e.g. a member of Congress or

Parliament), or by the executive, whereupon it is debated by members of the legislature and is
often amended before passage. Most large legislatures enact only a small fraction of the bills
proposed in a given session whether a given bill will be proposed and is generally a matter of the
legislative priorities of government.

Legislation is regarded as one of the three main functions of government, which are often
distinguished under the doctrine of the separation of powers. Those who have the formal power
to create legislation are known as legislators; a judicial branch of government will have the
formal power to interpret legislation (see statutory interpretation); the executive branch of
government can act only within the powers and limits set by the law.
KINDS OF LEGISLATION

1. Supreme Legislation
2. Subordinate Legislation

i) Municipal Legislation
ii) Executive
iii) Colonial
iv) Autonomous
v) Judicial

Unit –III: concepts of law

(a)Rights and Duties

This research considers the issue of rights and duties in the context of social relations based on
persistent exchange processes. Rights and duties that acquire a functional nature in such context
are characterized in a tentative formal way. A possible connection between functional rights and
duties and the issue of morality as a regulation mechanism. Every right has a corresponding duty.
Therefore,, there can be no duty unless there is someone to whom it is due. There can be no right
without a corresponding duty or a duty without a corresponding right, just as there cannot be
parent without a child. . Every duty is a duty towards some person or persons in whom a
corresponding right is vested.

KINDS OF RIGHTS

1. Perfect and Imperfect rights

2. Positive and Negative
3. Rights in Rem and Rights in Personam
4. Rights in Re Propria and Rights in Re Aliena
5. Proprietary Rights and Personal Rights.
6. Legal and Equitable Rights
7. Vested and Contingent Rights
8. Public and Private Rights
9. Principal and Accessory Rights
KINDS OF DUTIES

1. Universal, General and Particular Duties

2. Moral and Legal Duties
3. Primary and Secondary Duties
4. Positive and Negative Duties
5. Relative and Absolute Duties.

RELATIONSHIP BETWEEN RIGHTS AND DUTIES It is debatable question whether

rights and duties are necessarily co relative. According to one view, every right has a
corresponding duty. Therefore,, there can be no duty unless there is someone to whom it is due.
There can be no right without a corresponding duty or a duty without a corresponding right, just
as there cannot be parent without a child. Every duty is a duty towards some person or persons in
whom a corresponding right is vested. Likewise, every right is right against some person or
persons upon whom a co relative duty is imposed. Every right or duty involves a vinculum juries
or a of legal obligation by which two or more persons are bound together. There can be no duty
unless there is someone to whom it is due. Likewise, there can be no right unless there is
someone from whom it is claimed. According to Holland, every right implies the active or
passive forbearance by others of the wishes of the party having the right. The forbearance on the
part of others is called a duty. A moral duty is that which is demanded by the public opinion of
society and a legal duty is that which is enforced by the power of the state. The view of salmond
is that rights and duties are co relatives. If there are duties towards the public, there are rights as
well. There can be no duty unless there is some person to whom that duty is due.
Minerva mills ltd v. union of India

The Supreme Court observed that there may be a rule which imposes an obligation on an
individual or authority, and yet it may not be enforceable in court of law, and therefore not give
rise to a corresponding enforceable right in another person. But it would still be a legal rule
because it prescribes a norm of conduct to be followed by such individual or authority. The law
may provide a mechanism for enforcement of this obligation, but the existence of the obligation
does not depend upon the creation of such mechanism. The obligation exists prior to and
independent of, the mechanism of enforcement. A rule of law because there is no regular judicial
or quasi-judicial machinery to enforce its command. Such a rule would exist despite any problem
relating to its enforcement. Rights and duties are two phases of the same thing. Rights are
considered to be essential for the expansion of human personality. They offer to the individual a
sufficient scope for free action and thus prepare ground for self-development.

Although rights arc of great significance in a democratic stale yet they become meaningless in
the absence of duties. Rights involve obligations as well.
An individual has rights so that he may make his contribution to the social good. One has no
right to act unsociably, man’s rights imply his claims on society and duties indicate the claim of
society on the individual. This means that an individual owes to the society certain duties as he
obtains rights.

According to Prof. Laski there is a four-fold connection between rights and duties.

1. My Right implies Your Duty:

Every right of an individual involves a corresponding duty of others. For example, my right to
life implies that others should give protection and security to my life.

My right to move about freely implies a corresponding duty resting on others that they should
not interfere with my free movement.

2. My Rights imply My Duty to admit a similar Right of others:

The conditions of life which I need for myself arc also needed by others. This indicates that
every right is a duty in itself. If an individual exercises a right, he must bear in mind that the
same right belongs to others as well.

If I have the right to freedom of speech, it is my duty to see that I may not be a hindrance in the
free exercise of this right by others.

3. I should exercise My Right to promote Social Good:

A person He guarantees the rights to the majority in the society to remove the should not abuse
the right given to him by the State.

For example, if he uses the right to freedom of speech for spreading communal bitterness or
society cannot deprive man of these rights; these are inherent and to preach violence and
anarchy, it becomes an act counter to the social alienable rights, good. The state will then be
justified in depriving the person of his right if he has abused it.

4. Since the State guarantees and maintains My Rights; I have the Duty to support the
State:

The state is the agency for social good and it is the duty of an individual to perform ones duties
honestly.
The above-mentioned relations between rights and duties, there for clearly prove that rights and
duties go hand in hand. A healthy civic li] is impossible without the co-existence of rights and
duties. Rights without duties have no meaning and duties without rights have no sense.3

and Duties are, specifically discussed

CONCLUSION

Thus, rights and duties are correlatives and there can be no right without a duty like there can be
no parent without a child. And in Indian constitution there are many provisions for rights and
duties of the individuals as fundamental rights and fundamental duties

(b) Personality

Jan Klabbers The international lawyer, if no one else, is occasionally confronted with discussions
revolving around the notion of legal personality. This occurred, for instance, when the UN was
contemplating, after a UN appointed mediator had been in the Middle East in the late 1940s,
whether it could proceedings against a non-member state.1 It occurred in the mid-1980s when
the status of the International Tin Council, having gone bankrupt, became an issue for the
English courts in trying to figure out to what extent the member states of the Council could bear
responsibility for the Council's financial sense of adventure. It occurred in the early 1990s, when
an English court loudly wondered about the status, in English law, of the Arab Monetary Fund,
whose managing director had taken off with quite a few of the funds of the Fund it occurs as we
speak, with the International Law Commission aiming to develop rules on the responsibility of
international organizations under international law and its reporter suggesting that personality
functions as a precondafter, in the early 1990s, the EU was created at Maastricht as an entity
scheduled to have serious and intense activities on the international scene, but without any grant
of legal personality - or domestic legal personality, for that matter. As the ILC reporter’s
approach to the topic of the international responsibility of international organizations suggests,
the debates surrounding those incidents usually revolve around one central theme: somehow
international legal personality is thought to be a condition sine qua non for theition4; and it
occurred perhaps most conspicuously possibility of acting within a given legal situation;
somehow personality is considered to be a threshold which has to be crossed. Without legal
personality, so the implication goes, those entities do not exist in law, and accordingly cannot
perform the sort of legal acts that would be recognized by that legal system, nor even be held
responsible under international law.6 Long story short: without international legal personality,
the UN is thought to be unable to start proceedings under international law against a state;
without international legal personality, the EU is not deemed capable to conclude treaties or
perform other international legal acts; and without per personality recognized under English law,
the Arab Monetary Fund is regarded unable to sue its former managing director. What I will do
is take issue with this apparently quiteonality under English law, or at least personality
recognized under English law, the Arab Monetary Fund is regarded unable to sue its former
managing director. What I will do is take general position. While I will readily concede that a
certain measure of personality may be required before one has standing to sue, I would claim -
without further developing it -that this devolves from rules on standing (and the circumstance
that standing is granted usually only sparingly) rather than from personality as such.7 This is
exemplified by the possibility that other acts are perfectly possible: one does not need legal
personality to conclude treaties, or to make unilateral promises, or perform acts of recognition, or
Impose conditions on others or, indeed, violate international law. What, then, does legal
personality signify, if it does not constitute a threshold condition for performing legal acts?
What's the point of legal personality if it seemingly has no discernible practical ramifications,
and if one cane issue with this apparently quiperform all sorts of legal acts without it? I will
contend that a plea for personality, and the consequent acceptance thereof, has more to do with
political recognition of relations between actors and that those relations have some form of
relevance, than with anything else. This will be further developed towards the end of the paper,
in section Fambivalences inherent in the idea of legal personality, and to briefly discuss (and
dismiss) the idea of personality as a threshold for action within a legal system Perhaps as a
disclaimer, and at any rate to reveal where I am coming form, even though I was asked to look at
Personality generally, I cannot hide the circumstance that my background is in international law
and, to a lesser extent, EU law. I am not overly familiar with personality doctrine in domestic
law, although my guess is that the difference with international law (if such difference exists to
begin with) is one of degree, not of kind. Hence, while my concept of personality is modeled
mainly upon international law, it may nonetheless apply to legal personality more generally

THEORIES OF CORPORATE PERSONALITY

1. Fiction theory
2. Concession Theory
3. Realist Theory
4. Bracket Theory

LEGAL STATUS
1. Animals
2. Dead Person
3. Unborn Person
4. Artificial person or Juristic person

(C) Possession, ownership and property

In law, possession is the control a person intentionally exercises toward a thing. In all cases, to
possess something, a person must have an intention to possess it. A person may be in possession
of some property (although possession does not always imply ownership). Like ownership, the
possession of things is commonly regulated by states under property law

Intention to possess

An intention to possess (sometimes called animus possidendi) is the other component of

possession. All that is required is an intention to possess something for the time being. In
common law countries, the intention to possess a thing is a fact. Normally, it is proved by the
acts of control and surrounding circumstances.

It is possible to intend to possess something without knowing that it exists. For example, if you
intend to possess a suitcase, then you intend to possess its contents, even though you do not
know what it contains. It is important to distinguish between the intention sufficient to obtain
possession of a thing and the intention required to commit the crime of possessing something
illegally, such as banned drugs, firearms or stolen goods. The intention to exclude others from
the garage and its contents does not necessarily amount to the guilty mind of intending to possess
stolen goods.

When people possess places to which the public has access, it may be difficult to know whether
they intend to possess everything within those places. In such circumstances, some people make
it clear that they do not want possession of the things brought there by the public. For example, it
is not uncommon to see a sign above the coat rack in a restaurant which disclaims responsibility
for items left there.

Importance of possession

Possession is one of the most important concepts in property law. There are three related and
overlapping but not identical legal concepts: possession, right of possession and ownership.

In common law countries, possession is itself a property right. The owner of a property has the
right of possession and may assign that right wholly or partially to another who may then also
assign the right of possession to a third party. For example, an owner of residential property may
assign the right of possession to a property manager under a property management contract who
may then assign the right of possession to a tenant under a rental agreement. There is a rebuttable
presumption that the possessor of property also has the right of possession, and evidence to the
contrary may be offered to establish who has the legal right of possession to determine who
should have actual possession, which may include evidence of ownership (without assignment of
the right of possession) or evidence of a superior right of possession without ownership.
Possession of a thing for long enough can become ownership by termination of the previous
owner's right of possession and ownership rights. In the same way, the passage of time can bring
to an end the owner's right to recover exclusive possession of a property without losing the
ownership of it, as when an adverse easement for use is granted by a court.

In civil law countries, possession is not a right but a (legal) fact which enjoys certain protection
by the law. It can provide evidence of ownership but it does not in itself satisfy the burden of
proof. For example, ownership of a house is never proven by mere possession of a house.
Possession is a factual state of exercising control over an object, whether owning the object or
not. Only a legal (possessor has legal ground), bona fide (possessor does not know he has no
right to possess) and regular possession (not acquired through force or by deceit) can become
ownership over passage of time. A possessor enjoys certain judicial protection against third
parties even if he is not the owner.

There may be varying degrees of rights to possession. For example, if you leave a book that
belongs to you at a cafe and the waiter picks it up, you have lost possession. When you return to
recover the book, even though the waiter has possession, you have a better right to possession
and the book should be returned. This example demonstrates the distinction between ownership
and possession: throughout the process you have not lost ownership of the book although you
have lost possession at some point.

Obtaining possession Possession requires both control and intention. It is obtained from the first
moment that both those conditions exist simultaneously. Usually, intention precedes control, as
when you see a coin on the ground and reach down to pick it up. Nevertheless, it is conceivable
that a person might obtain control of a thing before forming the intention to possess it. If
someone unknowingly sat on and therefore had control of a $10 note on the seat of a train, he or
she could obtain possession by becoming aware of the note and forming the intention to possess
it. People can also intend to possess things left, without their knowledge, in spaces they control.

Possession can be obtained by a one-sided act by which factual control is established. This can
take the form of apprehension (taking an object not in someone's possession) or seizure (taking
an object in someone's possession). It can also be obtained through a two-sided process of
handing over the possession from one party to another. The party handing over possession must
intend to do so.

Possession acquired by consent

Most property possessed is obtained with the consent of someone else that possessed it. They
may have been purchased, received as gifts, leased, or borrowed. The transfer of possession of
goods is called delivery. For land, it is common to speak of granting or giving possession.

A temporary transfer of possession is called a bailment. Bailment is often regarded as the

separation of ownership and possession. For example, the library continues to own the book
while you possess it and will have the right to possess it again when your right comes to an end.
A common transaction involving bailment is a conditional sale or hire-purchase, in which the
seller lets the buyer have possession of the thing before it is paid for. The buyer pays the
purchase price in installments and, when it is fully paid, ownership of the thing is transferred
from seller to buyer.

Possession acquired without consent

It is possible to obtain possession of a thing without anyone else's consent. First, you might take
possession of something which has never been possessed before. This can occur when you catch
a wild animal; or create a new thing, such as a loaf of bread. Secondly, you might find something
which someone else has lost. Thirdly, you might take something from another person without
their consent. Possession acquired without consent is a property right which the law protects. It
gives rise to a right of possession which is enforceable against everyone except those with a
better right to possession.

Forms of transferring possession There are various forms of transferring possession. One can
physically hand over the object (e.g. handing over a newspaper bought at the newsstand) but it is
not always necessary for the party to literally grab the object for possession to be considered
transferred. It is enough that the object is within the realm of factual control (e.g. leaving a letter
in the letterbox). Sometimes it is enough for a symbol of the object which enables factual control
to be handed over (e.g. handing over the keys to a car or a house). One may also choose to
terminate possession, as one throws a letter in the trash. Possession includes having the
opportunity to terminate possession. If this were not the case, then police would be free to plant
drugs on innocent people one second and charge them with criminal possession the next.

Ownership
Ownership is a complex juristic concept which has its origin in the Ancient Roman Law. In
Roman law ownership and possession were respectively termed as ‘dominium’ and ‘possession’.
The term dominium denotes absolute right to a thing while possession implied only physical
control over it. They gave more importance to ownership because in their opinion it is more
important to have absolute right over a thing than to have physical control over it.

In English law the concept of ownership developed much later than possession. The earlier law
gave importance to possession on the misconception that possession includes within its
ownership as well. Holds worth observed that the English law accepted the concept of ownership
as an absolute right through gradual the gradual development in the law of possession.

The concept of ownership consists of a number of claims such as liberty, power and immunity in
regard to the thing owned. Ownership is thus a sum-total of possession, disposition and
destruction which includes the right to enjoy property by the owner. The owner has to side by
side abide by the rules and regulation of the country.

DEFINITION

Austin’s
Austin while defining ownership has focused on the three main attributes of ownership, namely,
indefinite user, unrestricted disposition and unlimited duration which may be analyzed in detail.

1. Indefinite User:

By the right of indefinite user Austin means that the owner of the thing is free to use or misuse
the thing in a way he likes. The pawned of a land may use it for walking, for building house or
for gardening and so forth. However Austin was cautious enough to use the term “indefinite”. He
did not use the thing owned infamy way he likes. His use if the thing is conditioned by
requirements or restrictions imposed by the law. The owned must not use the things owned as to
injure the right of others. The principle is the foundation of the well known maxim ‘sie utere taro
ut alierum non laedas’ the meaning of the maxims is that to use your own property s not to injure
your neighbor’s right. Again the use of property may be restricted voluntarily e.g. town planning
act, slum clearance act, 1955 etc.

2. Unrestricted Disposition:

What Austin implies by unrestricted disposition is that the power of disposition of the pawned is
unhampered by law meaning thereby that he is absolutely free to dispose it to remove it to
anyone This is incorrect. In case of lease of thousand years, servitudes and restricted, covenants,
plenary control of a property is not possible. Moreover, in the law of the some of the western
countries there is rule re relegitima portis which means that the person cannot dispose of his
entire property. He has to keep a certain portion of the property for the members of his family.
Under mohamdan law a similar rule prevails namely a person cannot dispose and delaying
creditors would be set aside. As under Hindu law government by mitakashara law can’t alienate
ancestral immovable property without the consent of other co presenters except for legal
necessity.

3. Unlimited Duration:

It is incorrect since almost under every legal system the state possesses the power to take over
the property of any person in public interest.
The abolition of Zamindari system India , the abolition of privy purses, nationalization of Bank
etc. are some example of the fact that the ownership can be cut short by the state for public
purpose and its duration is not unlimited.

Austin’s definition has been followed by Holland. He defines ownership as plenary control over
an object. According to him an owner has three rights on the subject owned:
1. Possession

2. Enjoyment

3. Disposition

Planetary control over an object implies complete control unrestricted by any law or fact. Thus,
the criticism leveled against Austin’s definition would apply to that given by Holland in so far as
the implication of the term “plenary control” goes.

Criticism Against Austin’s Definition:

Austin’s definition has been criticized by many writers.

They argue that it is fallacious to think that ownership is a single right; in fact, it is a bundle of
rights including the right of enjoyment by the user. Even if the owner gives away his few rights
in ownership, the residue are still owned by him. For example, mortgage of property by the
owner.

Ownership is not merely a right but also a relationship between the right owned and the person
owning it.

Owner having an unrestricted right of disposition has also been criticised. His right of disposition
of the property can be curtailed by the state. For example, under article 31(2) of the Indian
Constitution the state can take away the property of any person for public purpose.

Salmond’s Definition:

According to the Salmond ownership vests in the complex of rights which he exercises to the
exclusive of all others. For Salmond what constitute ownership is a bundle of rights which in
here resides in an individual. Salmond’s definition thus point out two attributes of ownership:

1. Ownership is a relation between a person and right that is vested in him

2. Ownership is incorporeal body or form
Salmond’s definition does not indicate the content of the ownership. It does not indicate the
right, powers etc. which are implied in the concept of ownership. Again, it is not wholly correct
to say that ownership is a relation between a person and right that is vested in him. As the most
popular and common idea of ownership is a relationship between a person and a thing.

Criticism against Salmond’s Definition:

Dugit says the thing is what is owned not the right which does not really exist.

According to Cook, there are many rights which a person may possess and to use the term
‘owner’ to express the relationship between a person and a right is to introduce unnecessary
confusion. Ownership is the name given to the bundle of rights.

For several casts and any contravention

MODERN LAW AND OWNERSHIP

Under modern law there are the following modes of acquiring ownership which may be broadly
classed under two heads,

1. Original mode

2. Derivative mode

the original mode is the result of some independence personal act of the acquire himself. The
mode of acquisition may be three kinds

a. Absolute when a ownership is acquired by over previously ownerless object

b. Extinctive, which is where there is extinctive of previous ownership by an independence

adverse act on the part of the acquiring. This is how a right of easement is acquiring after
passage of time prescribed by law.

c. Accessory that is when requisition of ownership is the result of accession. For example, if
three fruits, the produce belongs to the owner unless he has parted with to the same. When
ownership is derived from the previous version of law then it is called derivate acquisition. That
is derived mode takes place from the title of s prior owner. It is derived either by purchase,
exchange, will, gift etc.Indian Transferee Acts of property rules for the transfer of immovable
property, Sale of goods Acts for the transfer of property of the firm and the companies Act for
the transfer of company property.

SUBJECT MATTER OF OWNERSHIP

Normally ownership implies the following:
1. The right to manage;
2. The right to posses;
3. The right to manage;
4. The right to capital;
5. The right to the income.

The owner of a thing has the right to possess it, to the exclusive of all others i.e. the owner has
exclusive physical control of a thing or such control possesses the thing but this is not necessary
and always so. Thus to cite only a few examples, the owner may have been wrongfully deprived
of it or may has voluntarily devised himself of it. If A’s watch is stolen by B, the latter has
possession but the former remains the owner with an immediately right to possess. In case of
lease and mortgage, the owner (i.e. the leaser and the mortgagor) owns the property without
possession lies, with the lesser and the mortgagee.

The owner has the right to use the subject matter of ownership according to his own discretion.
Here use means personal use and the enjoyment of the thing by the owner. This right of
enjoyment or use is not absolute; it can be and is in fact, limited by law. This does not mean that
an owner cannot there by disturb the right of others. Suppose A owns a transistor, ha cannot tune
it at any time for listening music, for news or for commentary, but in doing so he is to take care
that he does not disturb the right of others. Thus he cannot tune it at a high pitch and at an odd
time so as to disturb the right of others. Thus he cannot tune it at a high pitch and at an odd time
so as to disturb the sleep of others.

The owner has right to manage i.e., he has the right to decide how and by whom the thing owned
shall be used. The owner has the power contracting the power to admit others to ones land, to
permit others to use one’s things, to define the limits of such permission, to create a right of
easement over his land in favor of a third person etc.

One who owns things has also the right to alienate the same or to waste, destroy or to consume
the whole or part of it. The right to consume and destroy is straightforward liberties. The right to
alienate i.e. the right to transfer his right over object to another involves the existence of a power.
Almost all legal system provide for alienation is the exclusive right if the owner. A non-owner
may have the possession of a thing but he cannot transfer the right of ownership of such thing to
another e.g. , in case of lease, a lessee may have the possession of the leased property but he
cannot transfer it because that is the exclusive right of the leaser who only can do so.

The ownership of the a thing has not only the right to possess the thing but also the right to the
fruit and income of the things within the limits , if any, laid down by the law. Suppose A’ has a
land he has not only the right to possess that the land but he can enjoy benefits resulting there
from e.g., produce, fruits, crops, etc. sometimes the use or the occupation of a thing to possess
that the land but he can enjoy benefits resulting there from e.g. produce fruits, as the simplest
way of deriving an income from it and of enjoying it.

CHARACTERISTICS OF OWNERSHIP

An analysis of the concept of ownership, it would show that it has the following
characteristics:
Ownership ma either be absolute or restricted, that is, it may be exclusive or limited. Ownership
can be limited by agreements or by operation of law.
The right of ownership can be restricted in time of emergency. For example, building or land
owned by a person can be acquired by the state for lodging army personnel during the period of
war.
An owner is not allowed to use his land or property in a manner that it is injurious to others. His
right of ownership is not unrestricted.
The owner has a right to posses the thing that he owns. It is immaterial whether he has actual
possession of it or not. The most common example of this is that an owner leasing his house to a
tenant.
Law does not confer ownership on an unborn child or an insane person because they are
incapable of conceiving the nature and consequences of their acts.
Ownership is residuary in character.
The right to ownership does not end with the death of the owner; instead it is transferred to his
heirs.
Restrictions may also be imposed by law on the owner’s right of disposal of the thing owned.
Any alienation of property made with the intent to defeat or delay the claims of creditors can be
set aside.

DIFFERENT KINDS OF OWNERSHIP

Experience shows that there are many kinds of ownership and some of them are corporeal and
incorporeal ownership, sole ownership and co-ownership, legal and equitable ownership, vested
and contingent ownership, trust and beneficial ownership, co- ownership and joint ownership and
absolute and limited ownership.
1. Corporeal and Incorporeal Ownership

Corporeal ownership is the ownership of a material object and incorporeal ownership is the
ownership of a right. Ownership of a house, a table or a machine is corporeal ownership.
Ownership of a copyright, a patent or a trademark is incorporeal ownership. The distinction
between corporeal and incorporeal ownership is connected with the distinction between
corporeal and incorporeal things. Incorporeal ownership is described as ownership over tangible
things. Corporeal things are those which can be perceived and felt by the senses and which are
intangible. Incorporeal ownership includes ownership over intellectual objects and
encumbrances.

Trust and Beneficial Ownership

Trust ownership is an instance of duplicate ownership. Trust property is that which is owned by
two persons at the same time. The relation between the two owners is such that one of them is
under an obligation to use his ownership for the benefit of the other. The ownership is called
beneficial ownership. The ownership of a trustee is nominal and not real, but in the eye of law
the trustee represents his beneficiary. In a trust, the relationship between the two owners is such
that one of them is under an obligation to use his ownership for the benefit of the other. The
former is called the trustee and his ownership is trust ownership. The latter is called the
beneficiary and his ownership is called beneficial ownership. The ownership of a trustee is in
fact nominal and not real although in the eye of law, he represents his beneficiary. If property is
given to X on trust for Y, X would be the trustee and Y would be the beneficiary or cestui que
trust. X would be the legal owner of the property and Y would be the beneficial owner. X is
under an obligation to use the property only for the benefit of Y.

A trustee has no right of enjoyment of the trust property. His ownership is only a matter of form
and not of substance. It is nominal and not real. In the eye of law, a trustee is not a mere agent
but an owner. He is the person to whom the property of someone else is fictitiously given by law.
The trustee has to use his power for the benefit of the beneficiary who is the real owner. As
between the trustee and the beneficiary, the property belongs to the beneficiary and not the
trustee.

2. Legal and Equitable Ownership

Legal ownership is that which has its origin in the rules of common law and equitable ownership
is that which proceeds from the rules of equity. In many cases, equity recognizes ownership
where law does not recognize ownership owing to some legal defect. Legal rights may be
enforced in rem but equitable rights are enforced in personam as equity acts in personam. One
person may be the legal owner and another person the equitable owner of the same thing or right
at the same time. When a debt is verbally assigned by X to Y, X remains the legal owner of it but
Y becomes its equitable owner. There is only one debt as before though it has now two owners.

The equitable ownership of a legal right is different from the ownership of an equitable right.
The ownership of an equitable mortgage is different from the equitable ownership of a legal
mortgage.

There is no distinction between legal and equitable estates in India. Under the Indian Trusts Act,
a trustee is the legal owner of the trust property and the beneficiary has no direct interest in the
trust property itself. However, he has a right against the trustees to compel them to carry out the
provisions of the trust.

3. Vested and Contingent Ownership

Ownership is either vested or contingent. It is vested ownership when the title of the owner is
already perfect. It is contingent ownership when the title of the owner is yet imperfect but is
capable of becoming perfect on the fulfillment of some condition. In the case of vested
ownership, ownership is absolute. In the case of contingent ownership it is conditional. For
instance, a testator may leave property to his wife for her life and on her death to A, if he is then
alive, but if A is dead to B. Here A and B are both owners of the property in question, but their
ownership is merely contingent. It must, however, be stated that contingent ownership of a thing
is something more than a simple chance or possibility of becoming an owner. It is more than a
mere spas acquisitionist. A contingent ownership is based upon the mere possibility of future
acquisition, but it is based upon the present existence of an inchoate or incomplete title.

4. Sole Ownership and Co-ownership

ordinarily, a right is owned by one person only at a time. However, duplicate ownership is as
much possible as sole ownership. When the ownership is vested in a single person, it is called
sole ownership; when it is vested in two or more persons at the same time, it is called co-
ownership, of which co-ownership is a species. For example, the members of a partnership firm
are co-owners of the partnership property. Under the Indian law, a co-owner is entitled to three
essential rights, namely

Property

Property Law and Social Morality develops a theory of property that highlights the social
construction of obligations that individuals owe each other. By viewing property law through the
lens of obligations rather than through the lens of rights, the author affirms the existence of
important property rights (when no obligation to another exists) and defines the scope of those
rights (when an obligation to another does exist). By describing the scope of the decisions that
individuals are permitted to make and the requirements of other-regarding decisions, the author
develops a single theory to explain the dynamics of private and common property, including
exclusion, nuisance, shared decision making, and decision making over time. The development
of social recognition norms adds to our understanding of property evolution, and the principle of
equal freedom underlying social recognition that limit government interference with property
rights

THOUGH THE Constitution has undergone a number of amendments as listed by the author, it
has stood the test of time. Fifty years of democratic rule by several political parties, maintaining
the spirit, structure and framework of the Constitution is a really great achievement, which, to a
greater extent was possible, thanks to the judiciary and more particularly to the Supreme Court,
which has maintained the rule of law and restored the right of the citizens.

In his inimitable style, Justice V.R. Krishna Iyer has written a long foreword quoting great
leaders and constitutional experts. He says: "The unique feature of Koteswara Rao is that he
blends traditional scholarship on property jurisprudence with the dialectical analysis,
contextually appropriate and reverential approach due to the innocent robbed brethren whose
subconscious and inarticulate social philosophy unwittingly ooze through the pen that pronounce
the law and binds pro tem the people. From this perspective, the book brings freshness rare in the
claques of writers competing to praise the Bench. The Koteswara Rao tribe is on the decrease".

Statutes define properties but the interpretation of the Supreme Court in several judgments is
given in the first chapter of the book. Discussions about the conflicting ideas on the institution of
property, theories of property, occupation theory, labour theory, metaphysical or personal theory,
philosophical theory, social trust theory, utilitarian theory and collectivist or socialist theory are
all educative and interesting. The author concludes the discussion by pointing out that only a new
theory of relativity of right to property can satisfactorily explain the origin, evolution,
justification and function of right to property. Right to property has to be based and justified with
reference to the time and place in any society. His remark "Throughout history element of force
and fraud is always at the back of right of property" is strikingly true.

Chapter three deals with the concept of property and conflict and confusion in the Constituent
Assembly. Any reader will be thankful to the author for giving in gist, the discussions that took
place in the Constituent Assembly regarding all matters including fundamental rights. The debate
though given in nutshell is interesting to read. To use the legal term, intention of the legislature
(though not one) can be gleaned by reading this chapter, containing the speeches of historical
political and non-political heads.

The hot topic of the 1970s was bank nationalization and the author has given importance to this
and a lengthy discussion is there. He says: "The judgment of the Supreme Court in the Bank's
case is one of the watersheds in the history of vicissitudes of the right to property as fundamental
right under the Constitution of India. The judgment went against the state. The nationalization of
banks by the Union Government was taken as a signal for elimination of the dangerous
monopolistic credit control system in the country."

"Though the Government nationalized banks for political expediency as alleged by some people,
it is a step towards socialistic pattern of society and in accordance with the Directive Principles
of State Policy for the prevention of concentration of wealth."

The judgment attracted bitter criticism of the judicial processes by the government and the leftist
parties. Two principal characters are the Parliament and the Supreme Court. The Supreme Court
challenged the Parliament for claiming to be omnipotent. The Parliament challenged the
Supreme Court for claiming to be omniscient. The Parliament nullified the judgment of the
Supreme Court in the Banks' case by passing the 25th Amendment Act, 1971, of the
Constitution. In turn the Amendment itself was challenged. The court upheld the validity of the
Amendment excepting the proviso to Article 31C.

The entire book is replete with statistics. On the question of education, the author's conclusion is
"Out of the six cases decided by the Supreme Court involving educational institutions and right
to property only three went in favor of the state. But close analysis reveals that in only one case it
was held that an enactment was violative of Article 31 ".

Articles 311 and 310 are important as they safeguard the employees with reference to their
services. The views expressed by the author in the preceding chapters find place in 140 pages in
the epilogue. But one can appreciate the exercise of the author in giving such a long epilogue
stressing and stretching the points discussed in various chapters.

The author gives the statistics of the reported judgment of the Supreme Court including the
number of pages, types of cases, and names of the judge. As to how many enactments were held
invalid and how many were confirmed can be found in these pages. This book is well illustrated
by judicial decisions.
 UNIT –IV: Principles of liability

(A).liability and Negligence

Sometimes, the act itself determines negligence. Under the doctrine of res ipsa loquitur,
(Latin term for "the thing speaks for itself"), there are some actions so obviously negligent
that the law presumes negligence, such as when a surgeon operates on the wrong side of the
body. The defendant, in such cases, must prove that he wasn't negligent

Most cases of negligence cannot be determined absolutely, for it depends on many factors. The
main measure used to determine whether an act was negligent is to consider what a reasonably
prudent person would do, given the age and knowledge of the tortfeasor, and other relevant
factors.

Before a court will award damages, the presumed negligence must satisfy 4 requirements:

1. there must be a legal duty to perform or to use reasonable care;

2. there must have been a failure to perform that duty;
3. the plaintiff must have suffered an injury or a loss;
4. and the negligent act must have been the proximate cause of the injury. The proximate
cause is a cause that directly caused the loss or suffering so that if the proximate cause
didn't happen, then the harm would not have happened.

All 4 elements of negligence must be present before a court will award damages

Defenses against Negligence

There are various factors that can either prevent a plaintiff from collecting damages or that will
reduce the amount awarded.

Contributory negligence is negligence that is caused by both plaintiff and defendant. If the
plaintiff contributed to his injury, then, in some states, the plaintiff will be prevented from
collecting any damages.

Comparative negligence allows the plaintiff to collect some damages, but it will be reduced by
the amount by which the plaintiff contributed to his own injury. There are 3 major rules, which
differ according to state law and according to the amount of contributory negligence, that
determine the amount that the plaintiff can collect.

1. The pure rule reduces the plaintiff's damages by the amount that he contributed to his own
injury. Thus, if a plaintiff has been judged to be 30% at fault, then his reward will be
reduced by 30%.
2. The 49 percent rule requires that the defendant be less than 50% responsible in order to
collect any damages, and any damages awarded will be reduced by the plaintiff's
contribution. Under this rule, only 1 party can collect where both parties are suing each
other.
3. The 50 percent rule permits the plaintiff to collect damages only if his share of the
negligence is not greater than 50%. In contrast to the 49 percent rule, both parties can
collect 50% of their damages from each other if both are judged to be 50% at fault.
However, if the degree of fault is anything but 50%, then only 1 party will be able to collect
damages, just as under the 49 percent rule.

The last clear chance rule modifies comparative negligence by allowing the plaintiff to collect
damages from the defendant, even if the plaintiff contributed to his injury, if the defendant had a
last clear chance to prevent the injury. In other words, could the defendant have prevented the
injury regardless of the plaintiff's negligence? If the answer is yes, then the plaintiff will still be
able to collect regardless of comparative negligence.

Finally, there is the assumption of risk—one assumes risk by engaging in an activity that is
inherently risky, and, therefore, should not be allowed to collect damages if an injury results by
engaging in the activity. Thus, if one plays racquetball without wearing goggles, and her
opponent hits the ball and injures her eye, she will be prevented from collecting damages from
her opponent, because by playing racquetball without wearing goggles, she assumed the risk that
she will suffer an eye injury or even lose an eye while playing

Limitations on negligence liability

Despite the significance of negligence liability, it is subject to a number of limitations which may
restrict its effectiveness in product liability claims. The manufacturer can only be held liable
where it has failed to take reasonable care, which the injured party must be able to prove. This
may be difficult and expensive.

In some cases, particularly concerning manufacturing defects, the injured party may be able to
rely on the principle of 'res ipsa loquitur' - meaning that no explanation other than negligence can
be the case. If this applies, it is up to the manufacturer to prove that it did in fact take reasonable
care. In cases like this, it may be difficult for the manufacturer to avoid liability unless it can
show how the defect occurred. The manufacturer will have to show that it took reasonable care
to establish a safe system of production and quality control to avoid defects, and that the
employees who implemented that system took reasonable care when doing so.
Where the complaint is a result of negligent design, the injured party's position will be much
weaker. Expert evidence will be necessary to establish negligence. The courts may be reluctant
to impose liability for negligent design as this would involve 'second guessing' executive
decisions on the relative cost and benefit of different design options.

A second difficulty faces the injured party is the need to establish a causal link between the
defendant's negligence and his own loss or injury. However, he would also have to do so if his
claim was under contract.

Since the action is one for common law negligence, the manufacturer will be able to rely on any
of the usual defences available in tort. For example, the manufacturer may be able to rely on the
partial defence of contributory negligence if the injured party ignored warnings, misused the
goods or continued to use them after a danger becomes apparent.

A further restriction on negligence actions is that, although damages may be awarded for
personal injuries or damage to property, damages will generally not be awarded for purely
economic losses

Kinds of Liability

• Civil or Criminal and can be Remedial or Penal

• Civil Liability: Liability in civil proceedings with a purpose of enforcement of rights
vested in plaintiff.
• Criminal Liability: Liability in criminal proceedings with a purpose to punish the
wrongdoer.

Penal Liability Liability

• : Aims at punishing the wrongdoer

• Remedial Liability: Aims at enforcement of rights and punishment is unknown to it.
• Criminal Liability is always penal
• Civil Liability is sometimes penal and sometimes remedial

Theories of Liability

• Theory of Remedial Liability

Theory of Penal Liability

The words "negligence" and "malpractice" were strangers to fourteenth century common law.
Yet through action on the case," medieval physicians were held answerable for professional
misfeasance, and it is almost inescapable that the rules through which their liability attached
grew from the same sociopolitical impulses on which the concept of negligence as we know it
now rests. ‘Conceptually, therefore, medical malpractice actions were from their earliest origins
no different from ordinary negligence suits."' That proposition is fundamental to the arguments
that follow. However, this proposition is easier to state than prove-it occasions inquiry into
jurisprudence of the past. For as Justice Holmes taught, "n law also, doctrine is illuminated by
history. The reign of Henry IV offers the first reported recovery brought for damage by a
physician's faulty practice. The decision arose from the burgeoning doctrine requiring persons
who practiced a "common calling" meaning, probably, a skilled profession) to act as would any
reasonably competent person practicing under like conditions or be liable for an action in
trespass on the case. Conversely, persons selling services not associated with a common calling
were liable for flawed performance only if they had breached an "express" agreement to achieve
or avoid a given result. The actassumpsit on the case. Under early common law, such cases
required the plaintiff to establish that the defendant had expressly promised to avoid the alleged
damage. With respect to a common calling, however, the practitioner had a legal duty to
exercise care and prudence independent of any express agreement. Hence, in the 1500Fitzherbert
averred that "f a smith prick my horse with a nail, I shall have my action on the case against him
without any warranty by the smith to do it well; for it is the duty of every artificer to exercise his
art rightly and truly as he ought." "Such actions," wrote a fourteenth century court, "go to a
matter . . . beyond
.. . Covenant. . . The plaintiffs have suffered a wrong."'" Medicine ion raised in these cases was
not trespass on the case but of course, was a "common calling," and careless or inattentive
Physicians were thus answerable not for breach of agreement, but for a
"Wrong" per se. 2' They were liable in action on the case, and their patients need not have pled
assumpsit.Trespass on the case, is often described as the precursor to negligence, but the two
actions are not so tightly tied as is often taught. To the link between the liability early imposed
on the careless physician and today's notions of negligence one must first examine certain
of the basic principles from which modern negligence law proceeds and, second, study the
medieval common calling rule to ascertain whether it vindicates those principles. A negligence
action proceeds from two oft-stated premises. The first pertains to duty and the Second to the
circumstances surrounding the at the time of the allegedly negligent conduct. With respect to the
first premise, defendants must owe a plaintiff a so-called duty of care;' That is, his relationship
with the plaintiff must legally oblige them to meet some specified standard of conduct.
Unreasonableness, carelessness, neglect, imprudence, and inattentiveness do not of themselves
Create liability for damage they cause. They do so only if, with respect to the plaintiff, the
defendant has some legal duty to be reasonable, careful, prudent, and attentive. Such has been
the rule since scholars first explained the essence of negligence.' Whether the courts their cues
from the commentators or the commentators took theirs from the courts is unclear, but in either
event the notion of duty as prerequisite to a negligence action took root early among common
law judges and holds fast today in Anglo-American jurisprudence Where the defendant's duty is
established, he is required to exercise the care that would be given by a reasonable person. To
the modern legal mind, the importance of "surrounding circumstances" is nearly self-evident,
For it means that conduct is reasonable or unreasonable depending on the situation in which it is
undertaken. Yet this was not obvious to lawyers of the nineteenth century, and some
conscientious courts took
Trouble to make it plain:
The issues . . . involve the question of the exercise of ordinary care and prudence.... The solution
of these questions depends upon the peculiar facts and circumstances of each case,
the state and condition of the parties; the manner in which, and the circumstances under which,
the injury was received or inflicted; in short, all the circumstances surrounding the transaction
which in any way reflect upon either the degree of care or the manner in which, in the particular
case, it should have been exercised. The circumstances are all relevant, and may be given to the
jury. . . . They form, so to speak, a part of the res gesta of the transaction; they are the
circumstances under which it occurred, and indicate the agencies which caused A. "Duty" and the
,
(b). Absolute Liability
Our country being a pioneer in industrial development and demography of such development
soaring high each day, also with complexity in both life and geography, it is necessary to have a
stricter and more absolute principle of liability with respect to no- fault liability. Moreover the
principle so established in Rylands v. Fletcher of strict liability cannot be used in the modern
world, as the very principle was evolved in 19th century, and in the period when the industrial
revolution has just begun, this two century old principle of tortuous liability cannot be taken as it
is in the modern world without modifications. The present condition of our country when it is on
the verge of being one of the most globalised countries of the world, inclusion of multinational
corporations (MNCs) in the jurisdiction of our country raises both points of appreciation and
concern. The technological complexity and the nature of industrial development, being
increasing at a high rate and also industrial sector being a major contributor to our GDP, the
protection of the very human rights and lives of people should be taken into consideration. Thus
the rule of strict liability cannot be still considered as the only redressed principle. Also pointed
out by Bhagwati J. in M. C. Mehta v. Union of India, paragraph 31 of the case that “This rule
evolved in the 19th Century at a time when all these developments of science and technology had
not taken place cannot afford any guidance in evolving any standard of liability consistent with
the constitutional norms and the needs of the present day economy and social structure. We need
not feel inhibited by this rule which was evolved in this context of a totally different kind of
economy. Law has to grow in order to satisfy the needs of the fast changing society and keep
abreast with the economic developments taking place in the country. As new situations arise the
law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to
remain static. We have to evolve new principles and lay down new norms which would
adequately deal with the new problems which arise in a highly industrialized economy. We
cannot allow our judicial thinking to be constricted by reference to the law as it prevails in
England or for the matter of that in any other foreign country”. Also the fact that the industrial
development cannot be done without the existence of hazardous and in responsibility on the
shoulders of such industries for the protection of the people from any type of accidents etc.
Justice Bhagwati also contended that “Such hazardous or inherently dangerous activity for
private profit can be tolerated only on condition that the enterprise engaged in such hazardous or
inherently dangerous activity indemnifies all those who suffer on account of the carrying on of
such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or
not. This principle is also sustainable on the ground that the enterprise alone has the resource to
discover and guard against hazards or dangers and to provide warning against potential hazards”
also observing. Thus from the above mentioned points it is a key necessity for such a principle to
be evolved as it will not only shape our jurisprudence but also will help us to not carry the
absolute principle of Strict liability in modern society.
Thus the necessity factor as discussed in the above section clearly helps us to understand as to
the principle of absolute liability is not only required to protect the basic human rights of the
people, but also to develop tort law in India and to expand our own countries jurisprudence.
Analysis of erectly dangerous industries, it is very much necessary to put of M. C. Mehta V.
Union of India:
It is very important to analyze this case, as to know whether in actual sense the principle of
Absolute liability exists or not. It was this case in which justice Bhagwati contented the above
discussed preposition. The facts of the case are that there was leak of oleum gas from one of the
units of Shriram Foods and Fertilizers Industries, on 6th December,1985, in the aftermath of the
Bhopal gas tragedy, the application was filed to get compensation to the persons who had
suffered harm on account of leak of the oleum gas. The important question before the court was
that whether as to continue with the principle of strict liability for the compensation or to evolve
our very own principle which is more strict and binding. SC in the above case apart from dealing
with the point of law regards the ambit of Art. 12 and 34, also gave a new rule of absolute
liability, where by giving various features of the same and clearly differentiating between the
earlier existing principle and the new principle.
Although there is a difference between obiter and ratio of a case, and as the case of M.C. Mehta
reads, it is clearly stated that the ratio of the case is "Courts shall order authorities for
enforcement of fundamental rights of citizens and to protect fundamental rights of people." The
principle of absolute liability is to be considered here as a obiter, as it was justice Bhagwati with
4 other respected judges, constituted this rule, it is not cited under the ratio of the case. Going by
the common law practice and the judicial interpretation, the absolute liability principle is not
binding on the courts and not on SC itself. The observation just made has two fold consequences,
one that their does not exist a principle called absolute liability in India if we go by strict
common law terms, as the principle was so given by judges in the oleum gas leak case was an
orbiter, then we cannot accept the very fact that it is binding concept. On the other hand the very
recognition of the rule by SC in different cases and also by various high courts in their
judgments, it is clear that to an extent judiciary in India has recognized this very concept, also
SC in Indian Council for Environmental Legation v. Union of India held that the rule of absolute
liability established in M.C.Mehta case was not obiter and is appropriate and suited the
conditions of our country. Thus we can conclude that although going by a technical sense, the
very rule comes under obiter, but by SC interpretation it makes absolute liability principle an
established principle. The above preposition and key finding will be supported by analysis of
relevant case laws in the next section.
Recognition of principle of Absolute liability by Judiciary in India
This section is in reference to the point dealt in the earlier section, and with the help of
precedents or case laws, both of Supreme Court and High courts, the point will be analyzed,
whether the observation is correct or not.
In the case of Charan Lal Sahu v. Union of India, this case was in accordance with the Act
formulated for the protection of the victims of Bhopal gas tragedy, is valid or not, doubts were
expressed by Mishra C.J as to correctness of rule as it was held that Mehta case was an obiter
and was differentiated from the western countries. The doubts so expressed in the above case
were no accepted in Indian Council for Environmental Legal Action v. Union of India and Mehta
case rule was not called to be an obiter. This case related to hazardous chemical industries,
releasing highly toxic sludge and toxic untreated waste water which had percolated deep into the
oil rendering the soil unfit for cultivation and water unfit for irrigation, human or animal
consumption resulting in untold misery to the villagers of surrounding areas. SC directed the
government determine and recover the cost of remedial measure from the private companies
which polluted the environment by attaching all their assets and further use to restore soil, forest
etc. These industries were characterized by the SC as ‘rouge industries’ and were ordered to be
closed down. In recognition of the principle of absolute liability, the concept mentioned above is
based on ‘polluters pay’. Considering the position of high court on the principle of absolute
liability, division bench of the Madhya Pradesh High Court applied the rule in the cas33, where
due to negligence of electricity board a person died of electric shock, high court recognized the
principle of absolute liability here as it was due to negligence on the part of the board as it failed
to maintain the wires properly. SC in the case of Madhya Pradesh Electricity Board v. Shail
Kumari, applied the same rule, in this case a cyclist was entrapped and electrocuted by a live-
wire. The board tried to defend by stating that the wire on the ground was a wire diverted b a
stranger to misuse the energy. The court held that the particular responsibility to supply electric
energy is statutory conferred on the board. If the energy so transmitted causes injury, it is the
primary liability to compensate the sufferer is that of the supplier of the electric energy. The
court also stated that a person undertaking an activity involving hazardous or risky exposure to
human life is liable under law of torts to compensate for the injury, irrespective of any
negligence or carelessness on the part of the managers of such undertakings. In an important case
of Union Carbide Corporation v. Union of India clearly states that in determining the
compensation payable to Bhopal gas victims, absolute liability principle was adopted. The
inappropriateness of compensation given to the victims, being a different issue all together, the
Relevant factor here is that of recognition of the concept of absolute liability while paying
compensation.
Prior to conclusion of this section a very recent case needs to be discussed in here, which is of
Mushtaq Ahmend v. State of Jammu and Kashmir, in this case the state was negligent in
maintaining electricity wire and the victim died due to electric shock. The court held that state
being engaged in undertaking the activity of electricity supply is liable under the law of torts to
compensate the petitioners for the death of the victim irrespective of any negligence or
carelessness on their part. Strict liability principle was held here, although the principle so used
was not of absolute liability, but the compensation provided by court was in accordance with it.
This part of the project being of great importance as to it helped us to determine the very
existence of principle of absolute liability, we can see that to an extent the judiciary in India has
recognized the principle and clearly stated the principle is not merely an orbiter but suits to the
current situations in the country. not merely an orbiter but suits to the current situations in the
country.
Conclusion and Suggestions
The principle of Absolute liability so stated in M.C.Mehta, oleum gas leak case, has been
extensively discussed and arguments formulated in the paper were solely based on the question
and hypothesis formulated in the chapter. It is necessary to conclude the project, as researcher
believes that there is a need to formulate findings and provide for suggestions.
The research questions has two parts first being is there a need for recognition of concept of
absolute liability and other being whether judiciary has recognized the same principle. Dealing
with the first part, the conclusion is that there is an urgent and inherent need for a principle of
absolute liability as, the rule of strict liability which is followed in most of the countries, cannot
be taken as the sole principle to provide for compensation, it being formulated about two
centuries ago, when the level of technological development was nearly nothing in comparison
with today’s development. For the purpose of providing better remedy under civil law and
broadly development of our own jurisprudence, to suit our own needs we require a principle
which will be just to both the wrongdoer and the sufferer. Absolute liability is in accordance with
the prevailing situation in our country, we are destination for globalization and large investments
and when the nature of industries is mostly hazardous.
Second part of the question deals with the existence of the principle of absolute liability in India
or recognition of principle by our judiciary. A very important finding here is that yes to a extent
their exist a principle of absolute liability and judiciary recognizes, and the principle so given by
court in the case of M.C.Mehta is not merely an orbiter but is an important aspect which suits our
present day conditions. The word extent used above is of great significance, researcher believes
that although the judicial recognition has been done, but it is not in accordance with the required
level which is very much required looking at prevailing situations in our country. Also the
principle of absolute liability, according to the researcher, should not pay compensation to the
sufferers on the basis of the paying capacity of the industries. Agreeing with the SC explanation
of the very point that, it will help one to get exemplary damages and also larger the industries
more the compensation can be provided to the sufferers, the consequences will be that if the
industry is small, then the compensation will be paid to the victim not in accordance with the
damage suffered, which is the basic principle of tortuous liability, but in relation to the paying
capacity of the wrongdoer. Thus according to the researcher the element of paying capacity
should be restricted to the large industries and for the rest the quantum of damages suffered
should be used which is in accordance with tort law.

Concluding, the research question formulated before, the findings are mix as the first part
stands true that there is a need for recognition of concept of absolute liability and the later
part is not true as, and judiciary has recognized the principle to an extent. The hypothesis
is so dealt also has the same reply as, the first part of it stands false and the second part of
it stands true. Thus there is a need for.

(C). Immunity

The Old and archaic concept of Sovereign immunity that “King can do no wrong” still haunts us,
where the state claim immunity for its tortuous acts and denies compensation to the aggrieved
party.

The doctrine of sovereign immunity is based on the Common Law principle borrowed from the
British Jurisprudence that the King commits no wrong and that he cannot be guilty of personal
negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of
his servants. Another aspect of this doctrine was that it was an attribute of sovereignty that a
State cannot be sued in its own courts without its consent.

The point as to how far the State was liable in tort first directly arose in P. & O. Steam
Navigation Co. vs. Secretary of State. The facts of the case were that a servant of the plaintiff’s
company was proceeding on a highway in Calcutta, driving a carriage which was drawn by a pair
of horses belonging to the plaintiff. He met with an accident, caused by negligence of the
servants of the Government. For the loss caused by the accident, the plaintiff claimed damages
against the Secretary of State for India. Sir Barnes Peacock C. J. (of the Supreme Court)
observed that the doctrine that the “King can done wrong”, had not application to the East India
Company. The company would have been liable in such cases and the Secretary of State was
thereafter also liable. The Court also drew the distinction between sovereign and non-sovereign
functions, i.e. if a tort were committed by a public servant in the discharge of sovereign
functions, no action would lie against the Government – e.g. if the tort was committed while
carrying on hostilities or seizing enemy property as prize. The liability could arise only in case of
“non-sovereign functions” i.e. acts done in the conduct of undertakings which might be carried
on by private person-individuals without having such power.
The aforesaid judgment laid down that the East India Company had a twofold character:

(a) As a sovereign power and

(b) As a trading company.

The liability of the company could only extend to in respect of its commercial dealings and not
to the acts done by it in exercise of delegated sovereign power. As the damage was done to the
plaintiff in the exercise of non-sovereign function, i.e. the maintenance of Dockyard which could
be done by any private party without any delegation of sovereign power and hence the
government cannot escape liability and was held liable for the torts committed by its employees.

Distinction between Sovereign and Non-sovereign functions followed in subsequent cases:

The aforesaid case was of pre-constitution era, making the distinction between sovereign and
non-sovereign function of state and holding the state liable in case of non-sovereign functions
was followed by the Hon’ble Apex Court in its subsequent judgments. The point as to how far
the state was liable in tort first directly arose after independence before the Hon’ble Supreme
Court in State of Rajasthan v. Mst. Vidyawati, AIR 1962 SC 933. In that case, the claim for
damages was made by the dependants of a person who died in an accident caused by the
negligence of the driver of a jeep maintained by the Government for official use of the Collector
of Udaipur while it was being brought back from the workshop after repairs. The Rajasthan High
Court took the view-that the State was liable, for the State is in no better position in so far as it
supplies cars and keeps drivers for its Civil Service. In the said case the Hon’ble Supreme Court
has held as under:

“Act done in the course of employment but not in connection with sovereign powers of the State,
State like any other employer is vicariously liable.”

In the aforesaid case, the Hon’ble Apex Court while approving the distinction made in Steam
Navigation Co.’s case between the sovereign and non-sovereign function observed that the
immunity of crown in the United Kingdom was based on the old feudalistic notions of Justice,
namely, that the King was incapable of doing a wrong. The said common law immunity never
operated in India.

Another case in which the principle laid down in Steam Navigation case was followed was
Kasturi Lal Ralia Ram Vs. State of UP AIR1965SC1039. In this case partner of Kasturilal
Ralia Ram Jain, a firm of jewellers of Amritsar, had gone to Meerut for selling gold and silver,
but was taken into custody by the police of the suspicion of possessing stolen property. He was
released the next day, but the property which was recovered from his possession could not be
returned to him in its entirety inasmuch as the silver was returned but the gold could not be
returned as the Head Constable in charge of the Malkhana misappropriated it and fled to
Pakistan. The firm filed a suit against the State of U. P. for the return of the ornaments and in the
alternative for compensation. It was held by the Apex Court that the claim against the state could
not be sustained despite the fact that the negligent act was committed by the employees during
the course of their employment because the employment was of a category which could claim
the special characteristic of a sovereign power. The court held that the tortuous act of the police
officers was committed by them in discharge of sovereign powers and the state was therefore not
liable for the damages caused to the appellant.

Initially aforesaid principles laid down by Apex Court were followed in MV Act cases also:

How far sovereign immunity is available in motor accident cases has however, been the subject-
matter of consideration in a large number of cases of various High Courts as well as of the
Supreme Court. It would be interesting to note that the aforesaid distinction of the sovereign &
non-sovereign functions of state and denying the compensation in case of sovereign functions
were extended to Motor Vehicle Accident cases also. The cases were mostly those involving
government vehicles, mainly Military Vehicles or paramilitary force vehicles. The trend of the
judgments revealed that the court basically examined the question whether the military vehicle
was engaged in the act which can alternatively be exercised by the private parties or the act is of
purely sovereign nature, like act of war, movement of troops and armaments which cannot be
delegated to the private parties. Let us now notice the relevant case laws on the subject:

In Satyawati v. Union of India, (AIR1957Delhi98) an Air Force vehicle was carrying hockey
team of Indian Air Force Station to play a match. After the match was over, the driver was going
to park the vehicle when he caused the fatal accident by his negligence. It was argued that it was
one of the functions of the Union of lndia to keep the army in proper shape and tune and that
hockey team was carried by the vehicle for the physical exercise of the Air Force personnel and
therefore the Government was not liable. The Court rejected this argument and held that the
carrying of hockey team to play a match could by no process of extension be termed as exercise
of sovereign power and the Union of lndia was therefore liable for damages caused to the
plaintiff.

In Union of India v. Smt. Jasso, AIR 1962 Punj 315 (FB) a military driver while transporting
coal to general head-quarters in Simla in discharge of his duties committed an accident. It was
held that the mere fact that the truck happened to be an army truck and the driver was a military
employee cannot make any difference to the liability of the Government for damages for the
tortious acts of the driver as such things could be obviously done by a private person also.

In Union of India v. Sugrabai , (AIR 1969 Bom 13) The Bombay High Court overruled the
plea of sovereign immunity when a military driver driving a motor truck carrying a Records
Sound Ranging machine from military workshop to military school of artillery killed a cyclist on
the road. It was held that the driver was not acting in exercise of sovereign powers. The Bombay
High Court observed in following words:

In Baxi Amrik Singh v. Union of India, (1972 Punj LR 1) The truck was part of an Army
Division which had moved to the Front during the 1971-Indo-Pak War. It was during the
movement of this Division back to its permanent location after the war, that the accident took
place. The truck was at that time carrying Jawans and rations. It was held by P&H High Court
that the accident occurred during the exercise of sovereign functions of the State and
consequently the Union of India could not be held liable for the tort committed by its servant-the
driver of the military truck.

In Mrs. Pushpa v. State of Jammu & Kashmir, 1977 ACJ 375, a truck under the use of the
army knocked down a cyclist causing his death. At that time the truck was loaded with crushed
barley for being used as a feed for the mules. It was held that the truck could not be said to be
engaged in the performance of the act of sovereign function.

In Fatima Begum v. State of Jammu & Kashmir, 1976ACJ 194, the same High Court rejected
the defence plea of sovereign immunity when a truck belonging to the Government Transport
Undertaking had knocked down a cyclist while it was engaged in transporting police personnel
from the place of duty to their barracks.

• Usha Aggarwal and Ors. Vs. Union of India & Ors. cited as AIR 1982 PH 279: In
this case the appellant’s husband Sushil Kumar Aggarwal died as a result of the injuries
he sustained when the motor-cycle, he was travelling on met with an accident with the
ITBP truck which had been deputed to fetch arms from the Railway Station at Ambala
and was returning with these arms when the accident occurred. The Tribunal vide its
order declined compensation to the claimants on the ground that the offending Indo-
Tibetan Border Police truck DHL-79 was engaged in the performance of the sovereign
functions of the State when the
• when the accident occurred. The appellant appealed in the P&H High Court. The Hon’ble
P& H High Court followed the decision of SC in Pushpa Thakur and rejected the
contention of Mr. H. S. Brar, appearing for the Union of India in that case who attempted
to press in the judgment of the Full Bench in Bakshi Amrit Singh v. Union of India
1974 Acc CJ 105 in the following words:
REFRENCE BOOKS.

1. SALMOND JURISPRUDENCE

2. R.W.D DIAS, JURISPRUDENCE

3. PROF NOMITA AGGARWAL, JURISPRUDENCE

4. WWW. WIKIEPEDIA.