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Jurisprudence: Dr. Sandeep Menon Nandakumar

The document discusses several topics related to jurisprudence, including: 1. Classification of laws into public vs private law and international vs domestic law. Private law includes contracts, torts, and property law. 2. Elements of a state including population, territory, sovereignty, and government. Primary functions of a state are security, law and order, and justice. 3. Theories of punishment in criminal justice systems including deterrent, retributive, preventive, and reformative theories.

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Yashvee Agarwal
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181 views16 pages

Jurisprudence: Dr. Sandeep Menon Nandakumar

The document discusses several topics related to jurisprudence, including: 1. Classification of laws into public vs private law and international vs domestic law. Private law includes contracts, torts, and property law. 2. Elements of a state including population, territory, sovereignty, and government. Primary functions of a state are security, law and order, and justice. 3. Theories of punishment in criminal justice systems including deterrent, retributive, preventive, and reformative theories.

Uploaded by

Yashvee Agarwal
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Jurisprudence

Dr. Sandeep Menon Nandakumar


Classification of Law

▪ National/Municipal/Domestic and International Law


▪ Public Law and Private Law
▪ International Law – Public International Law and Private International
Law/ Conflict of Laws
▪ Public Law – Constitutional Law, Administrative Law, Criminal Law
▪ Private Law – Contracts, Torts, Quasi contracts (unjust enrichment –
eg of Pizza), Law of person (family law, succession), Law of Property,
Law of Obligation.
State

▪ Essential elements – Population, Territory, Sovereignty, Government.


▪ Theories – Natural (Divine, Social contract) , Positive, Historical etc.
▪ Functions – Primary and Secondary
▪ Primary – Safeguard against external aggression, Law and order,
Administration of Justice.
▪ Secondary – Welfare activities – legislation and taxation.
Administration of Justice

▪ Distributive and Corrective Justice


▪ Natural and Conventional Justice
▪ Theories of Punishment – Deterrent theory, Retributive theory,
Preventive theory, Reformative theory, Theory of Compensation
(S.357CrPC).
▪ Preventive – offenders are disabled from repeating offences –
imprisonment, death, exile, forfeiture etc.
▪ Adversarial or Accusatorial and Inquisitorial forms of criminal
adjudicative systems.
Custom as a source of law

▪ A rule that has been followed since time immemorial and which has
acquired the force of law.
▪ Salmond – Custom embodies those principles as are acknowledged
and approved, not by the power of the State, but by public opinion of
the society at large.
▪ Keeton – Custom as those rules of human action established by
usage and regarded as legally binding by those to whom the rules are
applicable, which are adopted by court and applied as a source of law
because they are generally followed by the political society as a
whole or by some part of it.
Custom as a source of law (Eg:
Sapthapadi, s.7 HMA)

▪ Essentials of a custom - Antiquity, Continuance, Peaceful enjoyment,


Compulsory observance, Reasonableness, Consistency, Certainty.
▪ Custom – Local custom and General/conventional custom
▪ Custom and Prescription (Section 15, Easements Act)
▪ Custom – Gives rise to a law, from being followed since time
immemorial, originates from long usage.
▪ Prescription – Gives rise to a right, governed by statutory prescribed
time, originates from waiver of a right.
Legislation as a source of law

▪ Legislation – Declaration of rules by a competent authority.


▪ Derived from Legislatum – Legis means law; latum means making.
▪ Supreme and sub-ordinate legislation
▪ Supreme Legislation – Laws by Parliament
▪ Subordinate Legislation – Bye-laws of corporations, Court rules, Local laws of
municipalities, corporations , Executive or delegated legislation.
▪ Delegated legislation – Pros: Want of time, Technicality, Local Matters etc.
Cons: Wide discretion, No scrutiny by Parliament.
▪ Safeguards against delegated legislation – Procedural control (publication and
prior consulation), Parliamentary control and Judicial control.
Precedent as a source of law (stare
decisis)

▪ Previous instance of a case which is or may be taken as an example of rule for


subsequent cases.
▪ Ratio decidendi – Wambaugh’s test, Goodhart’s test
▪ Obiter dicta
▪ Decision per incuriam (Judgments pronounced even by the Supreme Court in ignorance
of statute law or a binding precedent are known as judgments per incuriam).
▪ Decision sub-silentio (In a trial, questions on res-judicata and limitation can be involved
and if the court decides the matter only on the point of res-judicata and say nothing on
the point on limitation, then the decision is said to have been passed sub-silentio and
that decision cannot be cited and applied as a precedent on the question of limitation).
▪ Authoritative and Persuasive precedent.
Other sources of law

▪ Equity
▪ Religion
▪ Digest (Justinian code, Fatawa –e-Alamgiri - Sharia based
compilation on statecraft, general ethics, military strategy, economic
policy, justice and punishment, that served as the law and principal
regulating body of the Mughal Empire during the reign of Aurangzeb)
Liability

▪ Civil and Criminal Liability


▪ Ubi jus ibi remedium
▪ Penal Liability – Mens rea and Actus reus- Actus non facit reum nisi mens sit rea
▪ Intention and Motive
▪ Negligence and Recklessness
▪ Strict liability and Absolute liability – Oleum Gas leakage, Bhopal Gas
Leakage,Uphaar Cinema Case, Public Liability Insurance Act, 1991
▪ Mistake of law and mistake of fact (Ignorantia Facti Excusat)
▪ Vicarious liability
Immunity

▪ Excuses and Justifications in the IPC


▪ Sovereign Immunity – Article 299 and Article 300 of the Constitution of India.
▪ P& O Steam Navigation Co. v. Sec of State (1861) – Govt was held liable as
maintenance of a dockyard was not a sovereign function of the state.
▪ State of Rajasthan v. Vidyawati (1962) – State govt was held to be vicariously
liable as the jeep was not maintained in the exercise of the sovereign powers of
the state.
▪ Kasturilal v. State of UP (1965) – Since the negligence of the police powers was
in the exercise of statutory powers, which can also be characterized as
sovereign powers, the State will not be liable for the same.
▪ Nilabati Behera v. State of Odisha (1993) – State has a duty to pay
compensation.
Revival of Natural Law

▪ Rudolf Stammler
▪ Law is the inviolable and autocratic collective will.
▪ Inviolable - Strictly binding even on those who have created and enacted it)
▪ Autocratic – Compulsory force – binding irrespective of individual’s inclination to follow
them.
▪ Collective will – Not a tool for satisfaction of subjective desires, but a manifestation of social
life.

▪ Radbruch (Positivist to Natural law philosopher)


▪ Law requires some recognition of individual freedom and a complete denial of individual
rights by the state is absolutely false law.

▪ Duguit
▪ Instead of legal rights, focussed on legal duties and law must enforce these legal duties such
as organization and maintenance of public services).
Obligations

▪ Contractual Obligations
▪ Delictal Obligations (a duty of making pecuniary satisfaction for the
wrong -Tortious liability)
▪ Quasi-contractual Obligations (Unjust enrichment, Money decree by
a court of law)
▪ Innmominate Obligations - (meaning not named or classified) –
Obligations that do not belong to any of the above three – eg: Trust
obligations under Indian Trust Act.
Ownership
▪ Rights – right in rem (IPR, Art 19) and right in personam (right to receive rent)
▪ Rights in re propria (to own one’s own property – use, exclude others, dispose, destroy) and Rights in re
aliena (in someone else’s property, eg: encumbrances such as easements, lease, mortgage etc)
▪ Modes of Acquisition – Original and Derivative
▪ Original – Absolute (Occupation and Specification), Extinctive , Accession
▪ Occupation – First striker of an arrow to a prey
▪ Specification – A person working on a material belonging to another makes it to something new, then he
becomes the owner (eg: sculptor making a statute from clay belonging to another).
▪ Extinctive (when a person by some act on his part extinguishes the ownership of previous owner and
acquires ownership himself - adverse possession).
▪ Accession - the owner of property becomes entitled to all that it produces (produce of land, trees etc).
▪ Derivative – eg: Inheritance, gift or purchase.
Legal and Beneficial Ownership (Trust)

▪ In the case of a young child whose parents have passed away - the
child cannot take full legal ownership of land until reaching the age of
18.
▪ If the parents have left the family home to the child, a trustee (or
trustees) will be appointed to look after the property until the child
reaches 18.
▪ The trustee (or trustees) will be the legal owner(s), whereas the child
will be the beneficial owner with the right to enjoy the property or if
rented out the right to any income received.
Possession

▪ Corpus Possessionis & Animus Domini


▪ By taking
▪ By delivery – Actual and Constructive delivery
▪ By operation of law – Inheritance
▪ Constructive delivery – Traditio Brevi (Roman Law – Lessess purchasing the property – car on lease and the lessee purchasing the
same car), Constitutum Possessorium (Transferor retains physical control of the item, but recognises that the trasnferee owns the
item – farmer who requires credit), Attornment (Sale from X to Y with an instruction to tenant to pay the rent to Y and not to X ).

▪ Symbolic Delivery (Delivery of key to mean delivery of shop and its items)
▪ S.41, TP Act – Transfer by ostensible owner - Where, with the consent, express or implied, of the persons
interested in immovable property, a person is the ostensible owner of such property and transfers the same
for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to
make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power
to make the transfer, has acted in good faith

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