english jurisprudence notes

8/12/2019 English Jurisprudence Notes

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01 Introduction Jurisprudence is a study of fundamental legal principles, thoughts, writings about lawin its relation with philosophy, psychology, economics, anthropology and other socialsciences.

02 Literal Meanings ofEnglish Jurisprudence

he word Jurisprudence is deri!ed from the Latin erm, J"#I$ which means legaland %#"&E' I( means )nowledge. herefore Jurisprudence is $cience whichgi!es us *nowledge about law

0+ &efinitions of EnglishJurisprudence

i. lac*-s law &ictionary / Jurisprudence is a science of lawii. $almond / Jurisprudence is a science of law.iii. "lpain / Jurisprudence is science of ust and un ust.iv. (ustin / Jurisprudence is philosophy of positi!e law

0 $cope and applications ofEnglish Jurisprudence

he $cope of Jurisprudence is !ery wide and !ast and it includes all concepts ofhuman order and human conduct. Jurisprudence applies on social, moral, economicand religious !alues of human beings. Jurisprudence consists of the study of thenature of law and its related ideas. (ustin has distinguished the laws from moralityand theology. Jurisprudence is about the nature of law and ustice. It embracesstudies and theories from a range of disciplines such as history, sociology, politicalscience, philosophy, psychology and e!en economics.

0 %ractical !alue of EnglishJurisprudence

Jurisprudence is the eye of law and it has !ery great practical !alue.

i. Jurisprudence pro!ides the legal terminology to legislature.ii. It pro!ides s*eleton to the constitution.

iii. Jurisprudence fills the gaps of law or remo!es legal mista*es or fallacies.i!. It gi!es detailed interpretation to statue of laws.!. Jurisprudence helps udges and lawyers in understandings the true meanings

of laws framed by the legislatures.!i. Jurisprudence has great educational !alue in logical conclusion or analysis

of legal concepts.!ii. he study of urisprudence helps the students in ad usting themsel!es in

society without causing in uries to the interests of other citi3ens.

04 )inds of EnglishJurisprudence

here are three *inds of urisprudence :Historical Jurisprudence:- 5istorical Jurisprudence gi!es the answers of the 6uestions, origin of law, thede!elopment of law, e!olution of law and philosophy of law.

Analytical Jurisprudence:- he branch of urisprudence gi!es analysis to basic principles of ci!il and their

interpretation. he most important 6uestions of analytic urisprudence are 78hat are laws97:78hat is the relationship between law and power;sociology97: and, 78hat is therelationship between law and morality97Ethical Jurisprudence:

he branch of urisprudence deals with basic principles of ethics and moral !alues.Ethical urisprudence is a branch of legal philosophy which approaches the law fromthe !iewpoint of its ethical significance and ade6uacy. It deals with the law as itought to be an ideal state. his area of study brings together moral and legal

philosophy.

0< English Jurisprudence inrelation with socialsciences

a. Sociology and jurisprudence: $ociology is the study of society with its relation with human beings.Jurisprudence and sociology has greater connection with each other. $ociology helpsthe urisprudence in sol!ing the social problems and social wrongs; ci!il wrongswithout ha!ing the *nowledge of society, the urisprudence cannot be understood. b. Jurisprudence and Psychology:- %sychology means science of human beha!iour, mind and conduct. %sychology hasclose connection with the urisprudence. =or e>ample in study of criminal

urisprudence, there is great scope for study of human psychology. In order tounderstand criminal mind behind the crime. $imilarly intention to commit crime isalso study of psychology as well as study of urisprudence.Jurisprudence and Ethics:-Ethics means anything relating to moral action or conduct. 8e can say Ethics is thescience of moral conduct. Ethics are two types. (. Ideal Moral ?ode .%ositi!e Moral ?ode his cannot be made with the help of any legislature but itslegislature is @od. It is present in the hearts of man. %ositi!e Moral ?ode deals withthe rules, regulation formed by legislatures to the human beings of the society.Jurisprudence and Economics:-Economics means science of wealth. It is uni!ersal truth that bad economicscondition gi!es birth to many crimes and offences because due to po!erty people

brea* laws. )arl Mar>, has shows that there is good relation between urisprudence.=or e>ample labour laws, factory laws, mercantile laws, company laws, associationlaws depend upon urisprudence. (s economics impro!e standard of life of people,similarly urisprudence gi!es such economics laws which promote social andeconomics ust.Jurisprudence and Politics:-

%olitics is science of go!ernment. Its main sub ect is relation between citi3en, stateand control of the state. here is !ery close relationship between urisprudence and

politics. ecause go!ernment is directly depend upon good laws to run the statemachinery.

10 ?onclusion It is rightly said that urisprudence is science of laws. Jurisprudence has !ery closerelationship with all social sciences li*e sociology, history, economics, ethics, and

politics. It has practical educational and legal !alue with a lot of purpose.


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01 Introduction Justice means proper administration of laws and its strict enforcement. 8ithout enforcement of law asecure, safe and balance life is not possible. @ood administration of ustice shows the good efficiency ofthe @o!ernment. It is the duty of the @o!ernment to implement ustice and rule of law. here are two*inds of ustice ci!il and criminal. ?i!il ustice deals with pri!ate wrongs, whereas criminal ustice dealswith public wrongs. (lthough both are *inds of ustice but still there is a lot of difference between themon the basis of nature and ob ect.

02 (spects of Justice here are three aspects of ustice.i. fair procedure of law

It means e!eryone should be treated in same way and there should be no discrimination onthe basis of gender, creed or wealth.

ii. balance of interestIt is the duty of state and ustice to *eep balance of interests of public li*e freedom ofspeech, life, property etc.

iii. E6uality in decisionsIt means e!eryone is e6ual before law and there should not be any discrimination on the

basis of standards.0+ &efinition of Justice Justice means proper administration of law, ustice is an important ingredient of law.0 )inds of Justice here are two *inds of ustice

a. ?i!il Justice b. ?riminal Justice

a. ?i!il Justice / ?i!il Justice means such ustice which addresses rights of pri!ate and ci!ilnature .

0A Bb ect of ci!ilJustice Bb ect of ci!il ustice is ensure and enforce the infringe rights of pri!ate and ci!il nature.

E>amples / 1. (ll the ci!il wrongs or infringement of ci!il and pri!ate rights. 2. reach of contract / 'on payment of debt and non payment of rent

0C )inds of ci!ilwrongs and theirresults

i. breach of contractii. assault, battery, defamationiii. false imprisonment, 'uisancei!. trespass to land, person and property!. negligence and fraudvi. Embe33lement and corruption, maladministration, mismanagement, bribery etc.

Results of i!il "rongs: i. ?i!il proceedings result in udgement for damages ii. compensation

i!. payment of debt,!. penalty, fine, in unction, decree, restitution or stay order.

0 ?riminal Justice y criminal ustice means such ustice deals with public wrongs and punishments.

04 E>amples of criminalwrongs and theirresults

#bjects of criminal justice:-Bb ect of criminal ustice is to punish the offenders?reate law and order in the society. E$amples of public %rongs:-

%ublic wrongs mean such wrongs which are due to breach of public rights and duties as a result of wholesociety suffer e.g theft, murder and rape etc.?riminals may awarded punishments, imprisonment rigorous or soft, fine, death, e>ile, flogging.

0< ?haracteristics ofcriminal wrongs

a. ?riminal ustice addresses the public wrongs. b. Bb ect of criminal ustice is to punish the wrongdoers and to create a peaceful and law abidingciti3ens.c. ?riminal Justice is dealt with in criminal proceedings.d. !ictims file petition in the criminal courts.e. %a*istan %enal ?ode; ?r %? apply during the prosecution.f. %arties name $tate Ds (ccused

10 &ifference betweencriminal ustice andci!il ustice

i!il Justice?i!il Justice means ustice whichaddresses the rights of pri!ateindi!iduals or of ci!il nature#ights in rem are preser!edIn ci!il ustice ci!il rights are

protected?i!il ustice deals within the ci!il

proceedings of ?%? or statute law

Dictim party file a suit?i!il wrongs are of no much harmfuland they effect only indi!iduals%laintiff Ds &efendantJudgement or results are in the formof in unctions, $pecific performanceor damages

riminal Justice?riminal Justice means usticewhich addresses the public wrongor wrongs of public nature#ights in personam is preser!edIn criminal ustice public rights are

protected%a*istan %enal ?ode, ?r%? applyduring prosecution$tate file a petition or file acomplaint?riminal 8rongs are harmful to thesociety and whole society suffers alot$tate Ds (ccused&eath penalty, imprisonment, fine,flogging and other rigours

punishments or e>emplary punishments


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&. 'efine Punishments. "hat are different theories of Punishments and %hich theory is most suitable for society(01 Introduction =or balance, safe and secure society some theories of the punishments ha!e been introduced. heories

of the %unishments has been remain the sub ect of debate for many centuries. 8ith the passage o time,the !arious theories ha!e been proposed with special reference to the contemporary legal system andeach theory ha!ing its particular merits and demerits. here is no single theory which is considered asthe most suitable and idle for the country or for the society to implement in letter and spirit.

02 &efinitions of the%unishment

Law Le>icon / %unishment is penalty for ransgression of the Law.lac*-s Law &ictionary (ny fine, penalty or confinement inflicted upon a person by the authority of

law as a result of the udgement and sentence on account of the crime or offence which he has

committed pro!ed during prosecution .0+ ?haracteristics of%unishments

It must be in!ol!e pain;in ury or any other conse6uences to the !ictim which are not pleasant orharmful to the !ictim. It must be an offence and should against the legal rules and falls under thedefinition or section of %%?.

he offence must be against public or state.0 Bb ecti!e of the

%unishmenthe ob ect;purpose of the punishment is to pre!ent the society from the crimes.

b. o pre!ent the person who has committed any offence from repeating the same acts or omission oroffence again.d. to pre!ent the other members of the community from committing similar crimes on the part of theoffenders.e. creation of peaceful and law and order in the society.

0A (pproaches towardscrimes

#eaction to crimes has been different at different stages of human ci!ili3ation and e!en at a gi!entime.

ii. It has been different in different societies. 5owe!er there are three approaches or reactionstowards the crimes.a. Puniti!e Approach-i. In this approach the punishment is inflicted with the ob ect to protect the society from theoffender to repeat his crime.ii. In this category the punishment of imprisonment is awarded who has committed serious orrigorous offences.b. )herapeutic approach:-i. in this approach, the criminal considered as sic* person and re6uire treatment.ii. In this case the circumstances of the criminal or offender is considered which is product orcause him to commit any offence and those circumstances are treated which compel him to commitany crime.c. Pre!enti!e Approach:-

In this approach, instead of gi!ing punishments to the offenders, those conditions are eliminatedwhich are responsible which compel him to commit crime or offence.(ll the abo!e mentioned approaches not e>ist independently but they o!erlap each other.

0C heories of the%unishment

=ollowing are some theories of the punishmentsi. #etributi!e heoryii. &eterrent heory.iii. %re!enti!e heoryi!. #eformati!e heory.!. ?ompensation heory

0 #etributi!e heory (ccording to this theory, punishment means, repairing an in ustice or ma*ing a wrong into right. Inthis principle of tooth for tooth, eye for an eye. In primiti!e societies the punishment was retributi!e.

he !ictim or family of the !ictim was allowed to ta*e re!enge. Islamic punishments are of alsoretributi!e type. omments* riticism)ent argues that it is the responsibility of the society to punish the person who commits any crime. 5eis of the opinion that principle of the ustice re6uires that we must punish the blameworthy. enthen isagainst the retributi!e theory. 5e says that retributi!e theory is based upon the assumption of re!engeand re!enge remains unsatisfied through such type of punishments . Most ancient law de!eloped on the

base of retributi!e theory. Laws are based on tit for tat or life for life. #etributi!e theory of punishmentcreates the passion of hate towards law. his theory sometimes base on !ery cruel punishments. 'otapplicable in modern days. %unishment is not itself remedy and punishment is itself an e!il. In the late1Cth century the theory was opposed by the church. It is said that forgi!eness is great !irtue thanre!enge. #etributi!e theory of punishment is against the cannons of morality and ethics. #etributi!etheory considers the crime and not the circumstances of crimes.

04 &eterrent heory It means to stop and discourage crime and criminal by producing fear or terror. asic idea behind is tocreate fear and horror though e>emplary punishments and ma*es the wrongdoers an e>ample for theothers persons who want to commit such type of crime or warning to criminal minded persons.$alamond considers the deterrent punishment !ery important. It gi!es warnings to all the criminalminded persons to rectify themsel!es.In &eterrent theory punishment intensity or proportion is morethan the intensity of crime or offence.

riticism:-he &eterrent heory pro!ed unsuccessful in chec*ing crimes. E!en though there is pro!ision of

se!ere or rigorous punishments in %%?, people still commit crimes.E>cessi!e harsh punishments createsympathy of the public towards those who has done something wrong.


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0< %re!enti!e heory In this theory the offender is pre!ented to repeat the crime again Br he offender are disabled to repeatthe same crime by punishment of imprisonment, death, e>ile and forfeiture.

riticism:-he %re!enti!e theory concentrated on the prisoner but see*s to pre!ent him offending again in future.

=or e>ample of pre!enti!e punishment is the cancellation of dri!ing licence of a person for !iolation oftraffic rules so that he may be pre!ented from dri!ing in order to a!oid further accidents.8hen anoffender is detained or disabled the family members also suffer as a result, especially in the case wherethe offender is the sole earning member of the family.8hen the offenders are sent to ail under thistheory, he turned into crime school and after ac6uittal the turned into more notoriouscriminal.%re!enti!e %unishments are of temporary nature and they don-t ha!e impact on his innerconscious, rather force him to commit crime again.

10 #eformati!e heory In reformati!e theory the offender is gi!en some psychological treatment or therapeutic approach of hismind and conduct. his theory belie!es that an offender is a product of the circumstances and it wasdue to circumstances which compel him to commit such crime. herefore those circumstances areremo!ed or rectified. he ob ect of the punishment is to transform the criminal person into good human

beings and good citi3en. he ad!ocates of reformati!e theory contend that by a sympathetic tactful andlo!ing treatment of the offender a re!olutionary changes may be brought into the character.

R+)+ +S,:- 5abitual and hardened criminals cannot be reformed because they don-t commit crimesunintentionally rather intentionally and deliberately.

11 ?ompensationheory

(ccording to this theory the !ictims are gi!en compensation or fine which he pays to aggrie!ed party.he ob ect of the compensation theory is to compensate the !ictim or !ictim family. o depri!e the

offender of his property or possession or sei3e his ban* account as a punishment. a*ing away property is worse than isolating him or *illing him, physical torture or humiliation.

R+)+ +S,:- It can be fruitful in common crimes but in serious or se!er crimes this theory is notimplementable. If the offender is rich person, he can pay easily and there will be no punishment. theoffender who has no property mo!able or immo!able cannot be punished. a*ing away property maylead to frustration and more crimes may be committed out of this frustration.

12 ?onclusion )eeping in !arious theories of punishment we can say that perfect system of criminal ustice is not base on any one theory of punishment. E!ery theory has its own merits and demerits. herefore itdepends upon nature of crime and the circumstances or e!idence of the crime.

'efine ustoms. "hat are its inds and %hat are its essentials(01 Introduction ?ustom is the oldest source of law ma*ing. 'obody can say about its origin. ?ustoms are as old as the

history of man*ind. he custom is habitual course of conduct which is performed again and again

uniformly and !oluntary by the people. E!ery act in society which is considered good and beneficialfor all, repeated again and again and it become customs and whole community or society accepts it. Inthe ancient societies people were regulated by customs which de!elop spontaneously according to

pre!ailing circumstances of the time. 8hen one thing or act was done again and again in particularway, it was assumed as customs.

02 Meanings of ?ustoms ?ustoms means such habits or course of conducts which obser!ed or done uniformly and !oluntarilyagain and again by the people concerned.("$ I' / custom is the rule of the conduct which go!erned, obser!ed spontaneously and not in

pursuance of law set by political.?(# E# / ?ustom is uniformity of conduct of all person under li*e circumstances.5BLL('& / ?ustom is generally obser!e cause of conduct

0+ heories of thecustoms

here are two theories of customs.5istorical heory b. (nalytical heory

H+S)#R+ A )HE#R/:-i. (ccording to this theory growth of law from the customs is due to or a result of theintelligence of people.

ii. ?ustom is deri!ed from the common consciousness of people.iii. ?ustoms springs from the inner sense of peoplei!. ?ustoms does not need recognition from the state

A0A /)+ A )HE#R/i. (ccording to this theory custom is the source of law and not law itself.ii. ( custom becomes law when it is co!ered with acts and state enforces it.iii. ?ustoms are not positi!e laws until they are recogni3ed by state or country.i!. ?ustoms becomes law when it ta*es co!er or dress up with the acts.!. ?ustoms is not binding upon people.!i. ( custom is law when the so!ereign allows doing it.

0 Essentials of !alidcustoms

ESSE0)+A #1 2A +' 3S)#,S

i. Reasonableness:- the custom must be useful and acceptable for the societyii. Reflection of justice:- a custom should not reflect the in ustice. If it reflects in ustice then it is

not !alid customiii. +mmemorial:- the !alid custom should not be temporary and ha!e long history.iv. ontinuity: ?ustom must be repeated again and againv. Peaceful enjoyment: / he custom must be en oyed peacefully. 'o danger to lifevi. ertainty: - there should not be ambiguity in the custom and it should be clear and definite.vii. ompulsory obser!ance:- ?ustom must be obser!e regularly at definite or specific time!iii. 4eneral and uni!ersal:- custom should obser!e generallyviii. 0ot opposed to public policy: it should not be against public lawsix. onformity %ith state la%5- must be according to law

0A )inds of customs there are two *inds of customs i. Legal ?ustoms and ?on!entional customs0C Legal ?ustoms Legal customs are such customs whose legal authority is recogni3ed by law of state.

Salmond:- Legal custom is such custom which has force of law and it is binding as rule of law.


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haracteristics of egal ustoms: i. It has absolute authority.ii. It has binding force.iii. It has force of law

6inds of egal ustom:- here are two *inds of legal customs 1. Local ?ustoms 2. @eneral ?ustoms

i. ocal ustoms: i. Local customs are such customs which are obser!ed or operates in specific or

particular area. It has force of law in that area. =or e>ample basant is local

custom because it operates in particular area.haracteristics of ocal ustoms:-i. It has conformity with the statute of lawsii. It base on peaceful en oymentiii. (uthority of local custom is higher than that of common lawi!. It operates in particular area

ii. 4eneral ustoms:- i. @eneral ?ustom is that which pre!ails throughout country and it

constitutes on of sources of law of land.ii. Bnce a general custom is recogni3ed by the courts of law, it cannot be

set aside by another custom.iii. =or e>ample most of ") laws consist on general customary law.

haracteristics of 4eneral ustoms:-i. hese are such customs which are not for a particular area.ii. hese customs pre!ail throughout the country.iii. hese are immemorial customs.i!. here must be continuity in these customs

0 ?on!entional?ustoms

?on!entional custom means such custom which operated under an established rule. ?on!entionalcustoms means such custom whose authority is conditional on its acceptance.3SA4E:- Bther name of con!entional custom is usage. he con!entional custom is based uponagreement between two parties.

haracteristics of con!entional custom:-i. ?on!entional customs arise as a result of agreement between two groups.ii. (uthority of con!entional custom is conditional on its acceptance and incorporation between

the parties. ( con!entional custom is an establish practices.iii. ?on!entional custom is legally binding because it e>pressly or impliedly incorporates in

contract between the parties.onditions for con!entional ustoms:-

8ell establish ,'o alternate of general law, #easonable, $ome agreement between two parties

04 ?onclusion ?ustom is the oldest source of law/ma*ing. ut with the passage of time its importance is diminishingwith growth of legal system. he law relating to succession, inheritance, property, contract etc aree!ol!ed from customary rules.

egislation01 Introduction Legislation means the power to ma*e laws. 8e can say that legislation is most potent and so!ereign

source of law ma*ing. his is first gate of law. here can be no law without legislati!e act. helegislation has powers to enact laws, repeal the old laws or modify or ma*e amendments in lawaccording to changing political and social conditions of the country. Judiciary only can interpret thelaws but legislation has powers to ma*e laws. Legislation also called 7statutory law7 is law which has

been promulgated For 7enacted7 by a legislature or other go!erning body, or the process of ma*ing.efore an item of legislation becomes law it may be *nown as a bill, and may be broadly referred to as

7legislation7 while it remains under consideration to distinguish it from other business. Legislation canha!e many purposes to regulate, to authori3e, to proscribe, to pro!ide Ffunds , to sanction, to grant, todeclare or to restrict. Legislation is usually proposed by a member of the legislature Fe.g. a member of?ongress or %arliament , or by the e>ecuti!e, whereupon it is debated by members of the legislatureand is often amended before passage. hose who ha!e the formal power to create legislation are *nownas legislators: a udicial branch of go!ernment will ha!e the formal power to interpret legislation Fseestatutory interpretation : the e>ecuti!e branch of go!ernment can act only within the powers and limitsset by the law.

02 Meanings ofLegislation

lac*-s Law &ictionary /Legislation means power to ma*e laws or powers to enactment of laws.@ray /Legislation means the formal utterances of legislati!e organs of society$almond:/ Legislation has three senses(ustin there can be no law without legislati!e act

0+ $enses of legislation i. 8idest sense /In widest sense it means to ma*e new rules for human conduct and includes all rules or laws fore>ecuti!e and udicial system

ii. echnical sense /In technical sense it mean a statute which is enacted by legislati!e organ and which is distinguishedfrom other organs

0 )inds of legislation Legislation are of two types1. $upreme Legislation 2. $ubordinate Legislation

0A $upreme Legislation i. Legislation which proceeds from the supreme or so!ereign power in the state is supremelegislation.

ii. he supreme legislation cannot be repealed, annulled or controlled by any other legislati!e


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authority. 0C $ubordinate

Legislation$ubordinate legislation is that legislation which proceeds from any authority other than the so!ereign

power and is therefore dependent for its continued e>istence and !alidity on some superior or supremeauthority.$almond$ubordinate legislation is such legislations which proceed from any authority other than so!ereign

power.haracteristics of subordinate legislation

i. It is not independent legislationii. It has no political forceiii. It proceeds from any authority other than so!ereign power i!. It depends on continuous e>istence!. It may repeal!i. It can change

0 )inds of $ubordinateLegislation

i. olonial egislation:Legislation by legislature for the colonies or other dependent states or functioning under ?rown. Imperial legislature or supreme legislature can suspend, supersede, and alter any colonial enactment.ii. Judicial egislation:-

he superior courts ha!e the power of ma*ing rules for the regulation of their own procedure: theserules are termed udicial legislation.iii. ,unicipal egislation:--Municipal authorities are entrusted by the law with powers to ma*e their special laws for the districtsunder their control. his is also called bye/lawsi!. Autonomous legislation:-

he autonomous bodies or corporations, associations, trade unions, railway companies and uni!ersitiescan ma*e their own rules.v. 'elegated legislation or E$ecuti!e egislation: /

he supreme legislation or legislature 6uite often delegates its powers to other organs e.g e>ecuti!e.he rules made in pursuance of this delegated powers are e>ecuti!e or delegated legislatures but they

may be repealed or supersede by the legislatures whene!er re6uired.0 =orms of Legislation 'irect egislation:-

he framing of laws by the legislature is direct legislation.?olonial legislation is a type of direct legislation because here law ma*ing power is e>ercised by alegislati!e body.+ndirect egislation:-8hen legal principles are declared by some other sources to whom law ma*ing power is confided bythe legislature, it is *nown as indirect legislation. E>cept colonial legislation all other forms ofsubordinate legislation are instances of indirect legislation.

04 ?ontrol of legislation Parliamentary control. %arliament can refuse, amend or alter or appro!e the bill being supreme legislati!e bodyParliamentary super!ision 5 where parliament directly super!ise the legislaturesJudicial control:8hile parliamentary control is direct, the control of courts is direct. ?ourts cannot annual subordinateenactments but they can declare them inapplicable in particular circumstances. rustworthy body%ublicity. E>pert-s opinion are controlled factors o!er legislation.

0< (d!antages oflegislation

i. Legislation cannot be repealed e>cept by $upreme ?ourtii. Legislation is constituti!e and abrogati!e means that it can ma*e laws and repealown lawsiii. Legislation creates statute lawi!. Legislation remo!es ambiguity and !agueness in the laws!. Legislation brings efficiency in the administration of the go!ernment and udiciary!i. Legislation satisfies the natural ustice phenomena!ii. Legislation pro!ides s*eleton or frame wor* for other constitutions!iii. Legislation has power of self criticism and self re!isioni>. he aim of the legislation to protect and progress of the society.>. It brings uniformity in territory and creates close relationship b;w man and the state

10 &isad!antages i. Legislations are rigid, courts and e>ecuti!e bodies cannot perform duties out of enactment orframed laws

ii. $ince legislatures are associated with some party so they frame legislatures of their ownchoice which full fill their own desires.

iii. Layman cannot understand the technical language.i!. $tatues laws or laws framed by legislatures are not self e>plained and ambiguity remains.

11 ?onclusion Legislation is most recent and powerful source of law. In a wider sense it includes all methods of law.(ccording to &icey, Legislation is necessary instrument for the growth and reformation of law.

&uestion of fact and &uestion of a%01 Introduction &uring the course of prosecution in the courts, two types of 6uestions arise, one is

6uestion of law and other is 6uestion of fact. Guestion of law is such 6uestion whoseanswers is already described or mention in the law. 8hile on the other hand 6uestionof the fact is such 6uestion which relates to the factual or actual position of the caseand whose answers has not already been answered by some law. (lthough both are*inds of 6uestions yet there are some differences between them on the basis of nature,concepts and ob ect.

02 Guestion of factIf the 6uestion relates to factual position or whose answer is not prescribed or mentionin the law, then such 6uestion will be 6uestion of fact. Guestion of fact is factual

position of case or actual incidents or happenings of the case.It are not matter ofopinion. E!idence is gi!en to find out the true facts of the case. Guestion of facts can


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be pro!ed by means of demonstration.0+ ?haracteristics of

Guestion of facti. It relates to factual position of the caseii. he answer of Guestion of fact is not prescribed by any lawiii. Judicial discretion has a lot of importance in iti!. Guestion of fact always decide by the ury!. here is no need to pro!e the Guestion of fact.!i. Bpinion of the udge has great importance in respect of 6uestion offact.!ii. Guestion of fact can be pro!e through e!idence and demonstrations!iii. In 6uestion of fact court finds the actual truthi>. In 6uestion of fact important thing is how an incident or accidenthappens>. In 6uestion of fact the decisions are not clear.

0 Guestion of law If a 6uestion relates to legal affairs or if answer of 6uestion is already prescribed byany aw then such 6uestion will be 6uestion of law.

0A ?haracteristics ofGuestion of Law

i. Guestion of law relates to legal affairs.ii. (nswer of 6uestion of law always prescribed by law.iii. Judicial discretion has not any importance in the 6uestion of law.i!. Guestion of law decides by the udge!. here is no need to pro!e the 6uestion of law because it is already

pro!ed!i. Bpinion of udge has no importance in respect of 6uestion of law.!ii. In the case of the 6uestion of law there is codified law so there is noambiguity or comple>ity!iii. In 6uestion of law priority is that what law saysi>. In 6uestion of law decisions are clear.

0C &ifference betweenGuestion of =act andGuestion of Law

In law, a 6uestion of fact Falso *nown as a point of fact is a 6uestion whichmust be answered by reference to facts and e!idence, and inferences arising fromthose facts. $uch a 6uestion is distinct from a 6uestion of law, which must beanswered by applying rele!ant legal principles. he answer to a 6uestion of factFa 7finding of fact7 is usually dependent on particular and circumstances or factualsituations.

o illustrate the differenceGuestion of fact &id Mr. and Mrs. Jones lea!e their 10/year/old child home alonewith their baby for days9Guestion of law &oes lea!ing a baby with a 10/year old child for days fit the legaldefinition of child neglect9 (ll 6uestions of fact are capable of proof or disproof, byreference to a certain standard of proof. &epending on the nature of the matter, thestandard of proof may re6uire that a fact be pro!en to be 7more li*ely than not7, thatis there is barely more e!idence for the fact than against, as established by a

preponderance of the e!idence: or true beyond reasonable doubt. (nswers to

6uestions of fact are determined by a trier of fact, such as a ury,

Administration of Justice78 +ntroduction 8ar and administration of ustice are two most essential functions of the state. If $tate is incapable of

performing these two functions, it cannot be called as state. (dministration of ustice means themaintenance of peace and order within political community by means of physical force of the state.

he good administration of ustice mans the @o!t. and its institutions are wor*ing properly and there isgood coordination b;w them. @ood and efficient udiciary system guarantees good go!ernance andadministration. (dministration of ustice means the maintenance of peace and order within the politicalcommunity by means of physical force of the state. hroughout history, man has sought some *ind ofre!enge or remedy for wrongs done against his person or property. (dministration of ustice is themodern and clinical treatment for all the e!ils and wrong practices in the society. =or soundadministration of ustice physical force of the state is the prime re6uirement. Bther factors which helpadministration of ustice and command obedience of law include social sanction, public opinion,con!enience etc.

79 'efinition andcriticism

Salmond:- (dministration of ustice means the maintenance of right within the political community by means of

physical force of the state.riticism: his is not only force of the state which guarantee the administration of ustice and ensures

the obedience of law. here are number of other factors such as social sanctions, habit and con!eniencewhich help in the obedience of law. he supporters of definition says that if the force of the state is notused for obedience then the control of the state has disappeared

7 #rigin and 4ro%thof Administration ofJustice

1irst stage:- =irstly there was the concept of pri!ate system of punishment and !iolent self help. In primiti!e timesmight was the sole right. E!ery man was his own udge. ( person wronged would ta*e re!enge by hisown hands.Second Stage:- 8ith the rise of political states, the pri!ate system of punishment con!erted into state punishments andregulated by the state and state pro!ided the rules eye for an eye and tooth for tooth.)hird Stage:-Lastly a stage arri!ed when enactment rules and laws formed and concept . pri!ate punishment


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con!erted into administration of ci!il and criminal ustice .7; 0eed of

administration ofJustice

8ithout administration of ustice, life of man li!ing in the society would be insecure, poor and nasty.(dministration of ustice is necessary due to following reasons. "niformity and e6uality in the society.=or protection of ci!il and public rights =or peace and stability. Integration of the society. $moothrunning of the state machinery 'ecessary to chec* the in ustice. 'ecessary to a!oid lawlessness. oeducate the people. o promote ustice and fair play. o promote welfare. o promote e6uality

7< 6inds of Justice here are types of ustice%ublic %ri!ate ?i!il ?riminalPublic Justice:-

%ublic Justice is administered by the state by establishing it own tribunals and courts e.g Labor ?ourts,$er!ice ribunals, (ppellate ribunals etcPri!ate Justice:- %ri!ate Justice is ustice between indi!iduals. It is the end for which the courts e>ist and public usticeis the means through which this end is fulfilled

i!il Justice?i!il Justice results from the infringement of pri!ate right. If a right of a person is !iolated and it onlyconcerns or directly affects him.

riminal Justice:- ?riminal ustice results from the infringement of a public right. E!en if the offence is committedagainst one person but the nature of the offence is such that the state steps in and considers it to be aninfringement of a public right.

7= 'ifference bet%eeni!il Justice andriminal Justice

i!il Justice riminal Justice?i!il Justice means ustice which addressesthe rights of pri!ate indi!iduals or of ci!ilnature

?riminal Justice means ustice whichaddresses the public wrong or wrongsof public nature

#ights in rem and trespass are preser!ed #ights in personam is preser!edIn ci!il ustice ci!il rights are protected In criminal ustice public rights are

protected?i!il ustice deals within the ci!il proceedingsof ?%? or statute law

%a*istan %enal ?ode, ?r%? applyduring prosecution

Dictim party file a suit $tate file a petition or file a complaint?i!il wrongs are of no much harmful and theyeffect only indi!iduals

?riminal 8rongs are harmful to thesociety and whole society suffers a lot

%laintiff Ds &efendant $tate Ds (ccusedJudgement or results are in the form ofin unctions, $pecific performance or damages

&eath penalty, imprisonment, fine,flogging and other rigours

punishments or e>emplary punishments

In ci!il ustice no benefit of doubt is gi!en toaccused

In ?riminal Justice benefit of doubt goto accused

In ci!il ustice only a plaintiff can pardon ?riminal ustice wali or state can pardon

he ob ect of ci!il ustice is to enforce right he ob ect of criminal ustice is to punish wrongdoers

0 &isad!antages ofJustice

#igidity ?omple>ity =ormalities "nable to *eep up with changing social needs.

04 ?onclusion o conclude it is right to say that ustice is permanent feature of the society and basic function of thestate. ecause it maintains the peace in the society and obedience of law and it gi!es protection to the

primary rights and without there would not be supremacy of the @o!t. administration of the ustice isthe e>cellent test of the efficiency of the @o!t. according to Lord ryce an efficient udicial system is asign of good political society.

"hat is la%> %hat are its inds %hat is imperati!e la% and 0atural a%78 +ntroduction he term law is deri!ed from @erman word Lag which mean fi>ed or e!enly. Law is body of principles

recogni3ed and applied by state in administration of ustice.(cts of nature are also *nown as laws andthese laws called natural law. In e!ery society there e>ist rules that regulate human conduct and thuscustomary rules are formed and such customary rules are transformed into laws when state gi!es themlegal recognition and ta*e the responsibility to enforce them. (cts of human conduct are *nown as

positi!e laws and these laws can be change by legislation.79 ,eanings and

definition,eanings of la%:- ody of rules promulgated by @o!ernment.

'efinition of la%.Austin:- Law is command. It imposes duty and is bac*ed by sanction4reen5- Law is system of rights and obligation which state enforces.Holland: Law is general rule of the e>ternal human action enforced by political so!ereign.Salmond:-

ody of principles recogni3ed and applied by state in the administration of ustice7 6inds of a% Laws in wide sense are di!isible into following categories.

+mperati!e la%:-Imperati!e law means a rule which prescribes a general course of action imposed by authority whichenforces it by superior power either by physical force or any other forms of compulsion

Physical la%:-(ll laws are physical in which natural or general principles of the uni!erse are functioning and there isuniformity and harmony in the uni!erse as a result. $uch as laws of astronomy, chemical reactions0atural and moral la%:-

y natural law mean principles of natural right and wrong, the principles of natural ustice. 'atural


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laws also called di!ine law, the law of reasons or uni!ersal lawson!entional la%:-

?on!entional law means any rule or system of rules agreed upon by persons for regulation of theirconduct towards each other. It is type of special law

ustomary la%:?ustomary law means any rule of action or conduct of human beings which is actually obser!ed againand again in uniformity and !oluntary.)echnical la%:-$uch rules which create for solutions of technical or practical problems e.g laws of health, laws ofarchitecture, music laws, rules of manufacturing.+nternational la%:-

hose rules which go!ern so!ereign states in their relations and conduct towards each other.onstitutional la%5

It includes all rules and regulations create by legislati!e bodies and pro!ide framewor* for all other pillars of the state. $o!ereign body ma*es such laws and enforces them.

i!il la%:-ci!il law is the law of state or law of the land, the law of the lawyers and the law of courts. ?i!il law

protect the rights of indi!iduals i.e rights in remriminal la%:

?riminal law protects rights in personamon!entional la%:

?on!entional law originates as a result of the agreement b;w two parties and it is law only for thosewho ha!e agreed to be bound by it. E!en they are not recogni3ed by state, they constitute law ingeneric sense. 8hen they are recogni3ed by the state it is enforceable by law

ocal la%:- Local law is the body of law which are for specific territory of the state e.g municipal corporationlaws, district go!ernment law. (ll bye laws fall under the definition of local law.Special la%:- $pecial laws are those legal rules which are formed for specific time of period for specific purpose andwhen target or purpose achie!ed they become null and !oid.4eneral la%5- @eneral Law means territorial law or ordinary law of the land. Its application is thought of the countryand is recogni3ed by courts and there is no special condition for their enforcement.Pri!ate la%: %ri!ate law deals with the inter/relationship b;w citi3ensAdministration la%:-

(dministrati!e law defines the powers, organi3ations and duties of administration or e>ecuti!e.onstitutional la%:-

?onstitutionally law defines the all rules and regulations which are necessary for smooth functioningof go!ernment and udiciary machinery. It also pro!ides frame wor* or s*eleton to other laws such asci!il criminal etc.Autonomic la%:-Laws form by autonomous bodies li*e railway, %I(, "ni!ersities etc,artial la%:-Law form by military dictator when he occupied the realm or snatch by force. It is also called militarylaw and thus suspends the constitutional or democratic law.,ercantile la%:- It is also *ind of special law and it apply in wor*ing business trade and commerce%ri3e law: pri3e law is part of international law in which law apply on pirates, who capture ships and

cargos at sea in time of war

0 ?onclusion o conclude it is right said that law is system of rights and obligations which state enforces. (nd e!erylaw is gift of @od and decisions of sages. here are many forms of law. (cts of nature are *nown aslaws of nature. (cts of human conduct are *nown as positi!e laws. Laws of nature cannot be changewhile positi!e laws can be change.

Austin )heory of a% or +mperati!e )heory of a%78 +ntroduction (ustin theory re!ol!es around that command is only for so!ereign. (ustin separates morality and law.

5e considers no similarity b;w morality and law.5is theory does not relate to the nature of law rather itrelates to the machinery and mechanism thorough which it is enforced. 5e presented imperati!e theoryof law and denounce the theory of naturalist. Law is the command of the $o!ereign. John (ustin

belongs to the analytical school of law and is widely considered to be the founder of positi!e law.

79 )hree elements ofla% in Austin)heory

hus, the three elements of law are1. ( command2. ( so!ereign+. ( sanction

7 A command (ccording to (ustin, law is not the same as morality. It deals with what is and not with what should be.It is imperati!e. It is the command of the *ing. he coerci!e force behind law is its essence.Jurisprudence is not the same as ethics. It is an independent discipline. he theory has often beencritici3ed for not including moral considerations but this was apparently not what 5obbes had intended

H the way he saw it, such an analysis was preliminary to critical assessment which was, through utility,to help re!eal heretofore unre!ealed di!ine laws.

7; Austin )heory ofa%

E!ery positi!e law or e!ery law simply and strictly so called is set by so!ereign indi!idual or so!ereign body of indi!iduals to a person or persons in a state of sub ection to its author. Ingredients of (ustin%ositi!e Law It is a type of command

It is laid down by a political so!ereign. It is enforceable by sanction.7< a% is type of

command(ccording to (ustin e!ery law is in the form of command. ( command is an e>pression of desiregi!en by superiors to inferiors. he superior en oy the powers and he has ability to punish inferiorswho disobey him.

7= All commands are (ustin distinguishes laws from other commands by their generality. Laws are general commands.


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not la%s Laws are standing orders of military station which remains in force.7? a% is gi!en by

so!ereign(ustin second re6uirement of law is that only that command should be gi!en by some so!ereign orsome supreme power. o (ustin, a so!ereign is any person or body of persons whom the bul* of

political society habitually obeys and who does not obey him he punishes them. (ccording to (ustinthere is no so!ereign there is no law. 5e says that the relation b;w the so!ereign and law is the relation

b;w the centre and the circumference. (ccording to so!ereign the powers of so!ereign cannot bedi!ided and so!ereign is continuous. (ccording to (ustin, law is law until it is effecti!e and generallyobeyed. 5owe!er perfect obedience is not necessary.

7@ Sanctioned by la% In case of non compliance with the command, one has to face the conse6uence in the form ofsanctions. here must be law enforcing agencies who implement the law in letter and spirit.7 riticism of

+mperati!e )heoryof a%

a%s before the state5-he laws which were e>isted before the creation of state or go!ernment were not in the form of

commands from so!ereign body. It had its source in customs, religion, ethics or public opinion and wasnot !ested in some authority or so!ereign or some political superior. herefore (ustin theory that theremust be so!ereign who gi!e command fails.4enerality of a%5(ccording to (ustin Law is general and for e!ery indi!idual and they must obey but it is not happensso. (ll persons don-t obey the laws in their full sense.

a% as command:(ccording to (ustin, law is command of so!ereign but all laws cannot be e>pressed in terms ofcommand. he greater part of the legal system consist of laws which neither command nor forbidthings to done. Laws not only define duties but also gi!e rights. 'ot applicable in modern democraticsocieties. (ustin theory of law may be true in monarchy or state where there is dictatorship but notapplicable in true democratic states.0ot applicable to international la%5-$ince the world has become global !illage. (ustin theory of law does not apply to constitutional lawwhich cannot say command of so!ereign. he constitutional law defines the powers of !arious organsof the state.Austin theory is against the ethical element5-

here is smell of dictatorship and against the ethics. End of law is ustice and not the punishment. Endof ustice gi!es you rights and it is bonafide and gi!es you rights.

87 onclusion (ccording to (ustin e!ery law is in the form of command. ( command is an e>pression of desiregi!en by superiors to inferiors. he superior en oy the powers and he has ability to punish inferiorswho disobey him.

Primary and Secondary functions of the ourt78 +ntroduction ?ourt is an organ of the @o!ernment belonging udicial department. asically court

performs two types of functions, primary functions and secondary functions.In primary functions court acts as a form through state administer the ustice.$econdary functions are in facts the functions of the state but delegate to the courts

for the con!enience of state. E>amples of the $econdary functions are (ctions against$tate, &eclaration of rights etc.

79 Primary functionsof the court

i. he primary function of the court is to administer the ustice.ii. o ensure that ustice is doneiii. o ad udge the case according to the laws of land.i!. o enforce the laws of land by the application of sanctions.!. It is primary function of court to enforce the rights.!i. It is primary function of court to punish the wrongdoers.

7 Secondary1unctions of the

courts

i. $econdary functions means such functions which in reality are the functionsof the state itself but state delegate to the courts of law for the con!enience

of state.ii. $econdary functions can change with the passage of time or can be differentsociety to society.

$econdary functions of courts of law are based on practical implication.7; ist of secondary

functionsi. (ctions against stateii. &eclaration of rightsiii. (dministrationi!. itle of rights

7< Actions againststate

his is main secondary function of court. It means that courts of law e>ercise in thefirst place, the function of ad udicating upon the claims made by the sub ects or

people against the state. In the past when some person wanted to claim against state

then in such situation there was only a way of complaint for him was petition of right. 'ow a day if a sub ect claims against state then he is at liberty to ta*e proceedings ina court of law by an ordinary action for the determination of his right in the matter.E>amples


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i. If some person claims that a debt is due to him from the crown has bro*en acontract with him or wrongfully detains his property then he is at liberty tota*e proceedings in court by an ordinary action for the determination of hisright.

ii. %ractice in %a*istan article


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Possession78 +ntroduction In law the possession is the physical control of a person o!er some material or

immaterial thing intentionally. In all cases, to possess something, a person must ha!ean intention to possess it. %ossession means ac6uire, detention, ta*ing o!er the rightof property or some material thing. %ossession is also claim of right o!er somethingand the person in possession en oys its benefits. ( person has possession ofsomething if the person *nows of its presence and has physical control of it, or has the

power and intention to control it. More thanone person can be in possession of something if each *nows of its presence and hasthe power and intention to control it.

he law recogni3es se!eral *inds of possession. ( person may ha!e actual possessionor constructi!e possession. ( person may also ha!e sole possession or oint

possession.( person who has direct physical control of something on or around his person is thenin actual possession of it.( person who is not in actual possession, but who has both the power and theintention to later ta*e control o!er something either alone or together with someoneelse, is in constructi!e possession of it.

If one person alone has possession of something, possession is sole.If two or more persons share possession, possession is oint.

79 'efinitions ofpossession

$almond:%ossession reflects a relation of a person with a material ob ect which a personcontinues claim of its ownership and e>clusi!ely use it and en oy all the benefitsattached with it.

7 +mportance ofpossession

%ossession is prima facie e!idence of title of ownershiphe long possession is also sufficient proof of ownership

he person in possession is presumed to be the owner.he first possession constitutes a good title to it.

he person in possession can en oy the benefits of it. %ossession is one of the mostimportant conceptsin property law.In common law countries, possession is itself a property right. (bsent e!idenceto the contrary, it pro!ides e!idence of ownership. %ossession of a thing forlong enough can become ownership. In the same way, the passage of time can bringto an end the ownerKs right to reco!er possession of a thing.In ci!il law countries, possession is not a right but a Flegal fact whichen oys certain protection by the law. It can pro!ide e!idence of ownership butit does not in itself satisfy the burden of proof. =or e>ample, ownership of ahouse is ne!er pro!en by mere possession of a house. %ossession is a factual state of

e>ercising control o!er an ob ect, whether owning the ob ect or not.Bnly a legal Fpossessor has legal ground , bona fide Fpossessor does not *now he hasno right to possess and regular possession Fnot ac6uired through force or by deceitcan become ownership o!er passage of time. ( possessor en oys certain udicial

protection against third parties e!en if he is not the owner. here may be !aryingdegrees of rights to possession. =or e>ample, if you lea!ea boo* that belongs to you at a cafe and the waiter pic*s it up, you ha!e lost

possession. 8hen you return to reco!er the boo*, e!en though the waiter has possession, you ha!e a better right to possession and the boo* should bereturned. his e>ample demonstrates the distinction between ownership and

possession throughout the process you ha!e not lost ownership of the boo* although

you ha!e lost possession at some point.7; Elements ofpossession

here are two elements of possessioni. ?orpus %ossessionii. (nimus possidendi

orpus Possession?omplete control or complete physical control o!er something is called corpus

possession. ( person ha!ing possession must en oy its benefits.

Animus Possidendi(n intention to possess something is called (nimus %ossidendi. 'ormally, it is

pro!ed by the acts of control and surrounding circumstances.hus animus possidendi ha!e following important pointshe possessor must ha!e e>clusi!e claim o!er the thing which he has possessedhe

possessor must use and en oy the possessed thing


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he possessor must ha!e intention to claim o!er its possession.7< ,odes of acBuiring

of possession%ossession is ac6uired and complete whene!er there is union of two elements of

possession i.e animus and corpus.here are three modes of ac6uisition of possession

Cy ta ingIt is the act of ac6uiring possession with or without the consent of pre!ious

possessor.6inds of ta ing

#ightful ta*ing#ightful ta*ing possession is ac6uired by the consent of a person already holding thatthing. E.g $hop*eeper gets the money and customer gets possession of the things.Briginal ac6uisitionIt is such possession of property where nobody claims o!er it as ownership or

possession. =or e>ample capturing of wild animal which does not belong to any one.8rongful ta*ingIt is one which is ac6uired wrongfully without the consent of its pre!ious possessor oralready who possessed it. E.g stealing of things

Cy deli!eryIt is the act of ac6uiring possession with the consent of pre!ious possessor. It may beof two *inds(ctual &eli!ery(ctual deli!ery is the transfer of immediate possession from its pre!ious possessor tonew possessor.?onstructi!e deli!ery?onstructi!e deli!ery is the mode of ac6uiring possession to two persons ointly. y operation of law

his ac6uiring of possession ta*es place when court passes orders or gi!es somein unctions or directions for possession. =or e>ample in the case of death of the

possession of property passes from the deceased person to his legal heirs orrepresentati!es.

7= egal conseBuencesof possession

%ossession is prima facie or ample proof or e!idence of ownershipransfer of possession is one of the chief modes of transfereing ownership

Long ad!erse possession shows title of ownershiphe first possession of thing has ad!antage o!er the second possession.

7? 6inds of possession =ollowing are types of possessioni. ?orporeal and incorporeal possessionii. Immediate and mediate possessioniii. ?oncurrent possession

i!. %ossession in fact and possession in law!. ?onstructi!e possession!i. (d!erse possession

7@ orporeal andincorporealpossession

?orporal possession is the possession of a material ob ect whereas the incorporeal possession anything other than a material ob ects. ?orporeal possession is commonlycalled the possession of a thing and incorporeal possession is commonly *nown as the

possession of right.7 +mmediate and

mediate possessionhe person who directly ac6uire or detain the possession of property or thing is called

immediate possession and the person who ac6uire things or attain its possessionthrough another person is called mediate possession. he other person may be agentor ser!ant. In such case actual possessor authori3e his agent or ser!ant to attain its

possession on his behalf. $almond instances three types of mediate possession firstly, thatac6uired through an agent or ser!ant: secondly, that held through a borrower, hirer, or tenant where theres can be demanded at will: thirdly, where the chattel is lent for a fi>ed time or deli!ered as securityfor the repayment of a debt.

87 oncurrentpossession

It is not actual possession. It is possession in law but no possession in fact. ( personwho, although not in actual possession, *nowingly has both the power and theintention, at a gi!en time, to e>ercise dominion or control o!er a thing, either directlyor through another person or persons, is then in constructi!e possession of it. =ore>ample the owner of ewelry in a deposits that bo> with someone else but he himselfhas the *ey to that bo>, he is said to be in constructi!e possession of it.

88 Ad!erse possession (d!erse possession is such possession, in which a person holds, detains or claim thathe has initially holds the land on behalf of some other person and for !ery long periodand no one claim of right of possession for the last 20 years or so. If ad!erse


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possession continues peacefully for a prescribed time of period, then title of trueowner is e>tinguished and the person in possession becomes true owner of the land..

89 Actual possession ( person who *nowingly has direct physical control o!er a thing, at a gi!en time, isthen in actual

possession of it.

$r. 'o.

$ub ect egal rights

01 Introduction #ights are legal, social, or ethical principles of freedom or entitlement: thatis, rights are the fundamental normati!e rules about what is allowed of

peopleor owed to people, according to some legal system, social con!ention, orethical theory. #ights are of essential importance in such disciplines as lawand ethics, especially theories of ustice and deontology.#ights are often considered fundamental to ci!ili3ation, being regarded asestablished pillars of society and culture, and the history of socialconflicts he purpose of administration of ustice is to maintain peace, lawand order and o!erall the protection of rights of people or public by use of

physical force and punishing the wrongdoers or who !iolate or infringe therights. 'ow 6uestion arise what are legal rights. Legal rights are those whichare granted by any statute of laws. #ights are interests of the indi!idual or

person protected by law. 8here there are wrongs, there will be interests andwhere there are interests, there will be rights. hese rights may be moral orlegal.

02 )inds of #ights here are two *inds of rightsa. Moral #ights

b. Legal #ights

a Moral #ights ( moral right is also called natural rights and such rights are recogni3ed and

protected by rule of morality and the !iolation of moral right would be moralwrongs and it is moral duty to protect the moral right.

b Legal #ights( legal rights are such rights which are recogni3ed by rule of law and its!iolation is legal wrong and it is legal duty to protect the legal rights.

+ ?haracteristics oflegal #ights

Legal rights are freedom of speech, freedom of mo!ement, freedom ofworship.

hese are all fundamental rights of people which are granted by state throughstatue of laws.

itle holder, ob ect, and conte>t are essentials of legal rights. In the legal right there are three parties first is state, second is person or

persons on whom the right confer and third person on whom duty imposes. Legal rights are enforcing by way of damages, in unctions or we can say it is

primary functions of the courts to preser!e the legal rights of citi3ens.here are many *inds of legal rights such as perfect and imperfect, positi!e

and negati!e rights. here are a number of distinguishing features of rights.$ome of these are Fi( right is always !ested in a person but not in an inanimate being or animalor e!en a dead person. Fii ( right is generally correlati!e of a duty inrelation to the fulfillment of a right. Fiii he right must relate to a sub ectmatter,namely the ob ects, which in a gi!en case may relate to a person or property,

place or a thing. Fi! he nature of a right may be to get something done fromanother or to refrain him to do something.

hus, there may be a right to get bac* the money lent, or to get the house builtas per agreement, or to pre!ent a person to trespass upon your property. F!

E!ery right can be traced to a source which may be a contract, a custom, anatural law, etc.

Essentials of le

gal )itle


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rights itle of legal right is important essential. =acts must show how right !ests inowner of right. =or e>ample if a person purchases house then he gets the titleof house now it is the duty of others to admit his right of ownership.)itle Holder

here should be a person who is owner of right. 5e is main role of legalright.#bjectBb ect of right should be positi!e and effecti!e and lawful.

onte$t?onte>t is an act which sub ect of incidence is bound to do or it may be aforbearance on his part.Subject of duty( legal right arises against another person who is bound to perform the duty.

he duty of one person is the right of other person.

0A )inds of legal rights Perfect and imperfect:-%erfect rights are enforceable through court action but imperfect rights arenot.%erfect right arise in case of perfect duty and imperfect right arise in caseof imperfect duty. %erfect right is recogni3ed by law and imperfect does notrecogni3e by law.Positi!e and negati!e:-%ositi!e right arises in case of positi!e duty and negati!e right arises in caseof negati!e duty. %hilosophers and political scientists ma*e a distinction

between negati!e and positi!e rights Fnot to be confused with the distinction between negati!e and positi!e liberties . (ccording to this !iew, positi!e rights permit or obligeaction, whereas negati!e rights permit or oblige inaction. hese permissionsor obligations may be of either a legal or moral character. Li*ewise, thenotion of

positi!e and negati!e rights may be applied to either liberty rights or claim

rights, either permitting one to act or refrain from acting, or obliging othersto act or refrain from acting. #ights considered negati!e rights may includeci!il and political rights such asfreedom of speech, pri!ate property, freedom from !iolent crime, freedom ofworship, habeas corpus, a fair trial, freedom from sla!ery and the right to

beararms. #ights considered positi!e rights, as initially proposed in 1< < by the?3ech urist )arel Dasa*, may include other ci!il and political rights such as

police protection of person and property and the right to counsel, as well aseconomic, social and cultural rights such as public education, nationalsecurity, military, health care, social security, and a minimum standard of

li!ing. In the 7three generations7 account of human rights, negati!e rights areoften associated with the first generation of rights, while positi!e rights areassociated with the second and third generations.Real and personal( real right corresponds to a duty imposed upon person in general and thisright is a!ailable against the whole world. =or e>ample right of possession isa real right and right of ownership is real right. %ersonal right corresponds toa duty imposed upon determinate indi!idual and this right is a!ailable onlyagainst a particular person.Rights in rem and rights in personam#ights in rem are rights against the whole world. =or e>ample right of

possession or ownership. #ights in personam against the specific personswho has !iolated some offence. =or e>ample murder, false imprisonment etc

Proprietary and personal%roprietary rights are those rights which are associated with property orwealth. hese rights are economic !alue. =or e>ample rights of loan andgood will. %ersonal rights are not economic nature but they are of socialtypes. =or e>ample right of freedom and speech. %roprietary #ights are rightsin relation to one-s own property, which consists of things, assets, belongingin possession and ownership rights of a person or entity. he personal rightsare relating to the body of the concerned person which may affect his ;her

character, liberty, and status in the society.+nheritable and inheritableInheritable rights are those rights sur!i!es its owner e.g proprietary rights arethe inheritable rights. Inheritable rights cannot transfer to legal heirs. =or


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e>ample personal rights of deceased person cannot transfer to the legal heirs.Rights in properia and in re aliena#ights of owner his own property *now as right in re properia. #ight in realiena in such right which limits from some more general right belonging tosome other person.Principal and accessory

hese rights which e>ist independently called principals rights and accessoryrights does not e>ist independently.Public and pri!ate%ublic rights are those rights which possess by e!ery member of public e.gright to !ote. %ri!ate right is such right which en oy by indi!iduals.2ested and contingentDested right is right in respect of which all e!ents necessary to !est it in theowner. ?ontinginent rights are such rights which depend on happening andnot happening of a future e!ent. 'o time is specified as to when it is ta*eeffect or2 (ccording to the terms thereof it is ta*e effectimmediately + It is to ta*e effect on the happening of an e!ent which musthappen &eath of transferee before possession does not di!est a !estedinterest. here is no presumption against a !ested interest by reason of a

he en oyment ha!ing been postponed to a future date, or b ( prior interestis gi!en or reser!ed to another in the same property, or c Income is to beaccumulated till the arri!al of the date of en oyment, or d he interest is to

pass to another on the happening of a particular e!ent $ection 21 ?ontingent Interest $cope of application Bn a transfer of property an interestis said to be contingent when it is ta*e effect only if a specified uncertaine!ent a $hallhappen, or b $hall not happen $cope 1. Bn transfer in case a specifieduncertain e!ent shall happen does not !est until the e!ent happens. 2. Bntransfer in casea specified uncertain e!ent shall not happen does not !est until the happening

of that e!ent becomes impossible. +. In either case until a condition has beenfulfilled the interest is contingent. Dested ?ontingent 'ot dependent uponhappening or not happening of any uncertain e!ent. En oyment of property isdependent on happening or unhappening of some uncertain e!ent. Destingmaydepend on happening of certain e!ent. ransfer is conditional. ransfer is notsub ect to any uncertain conditions. 8hen condition fulfilled transfer iscomplete. 'o uncertainty in !esting. $o long the condition is not fulfilled itiscontingent as soon as the condition is fulfilled/ it becomes !ested.

Desting present en oyment may remain postponed. he transfer with no presenten oyment.

ransfer is sub ect to fulfillment of conditions.here is uncertainty in the right of en oyment

#ight of en oyment may remain postponed.Desting / future.,unicipal and internationalMunicipal rights are granted by municipalities of big cities whereasinternational rights are enforced by international law.At rest and in motion

8hen a right is studied with reference to its orbit and its infringement, itwould be called at rest.#rdinary and fundamental

$er!ient and dominantLegal and e6uitable

0C E>tinction of rights performance: when rights or obligations has been performedagreement / when parties are on agreementimpossibility to performdeath

operation of law: when the law or court has passed orders to peformtime period: when time period or limitations act passed or time barred right


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Judicial e!idence is that which is produced before the court. It consists of all facts which are brought into the *nowledge of court. It may be either oral, testimony, oath, pledge, documents produced before the court.

9. E$tra-JudicialE>tra udicial e!idence consists of facts and not directly pro!ed in the court.

. Personal e!idenceIt includes all *inds of statements by a witness. %ersonal e!idence may be oral or written. Itmay be udicial as well as e>tra udicial.

;. Real E!idence:(ny e!idence which is belie!ed to be true for any other reason is called real e!idenceample document is primary e!idence.

=. Secondary e!idence$econdary e!idence re6uires which may be gi!en in the absence of better of e!idence whichthe law re6uires to be gi!en first.

?. 'irect e!idence&irect e!idence is testimony relating immediately to the principle fact. It is the e!idence of fact

percei!ed by a witness his own senses@. ircumstantial e!idence

It is such e!idence which relates to a series of other facts than the fact in issue, but which isclosely related with that fact.

. #riginal e!idenceBriginal e!idence is that which is independent of probati!e force of its own e.g witness with hisown eyes or ears.

87. Hearsay e!idence5earsay e!idence is which is not percei!ed by a witness with his own senses but by some other

person.@eneral rule / there is no role of hearsay e!idence in G$B (rticle 1 .

7< Rules of e!idence #ules of best e!idence is that e!idence which is of the highest 6uality a!ailable, as measured by thenature of the case rather than the thing being offered as e!idence. =or e>ample original document ratherthan the photo copy. his is base on ma>im #es Ipsa Lo6uitar i.e things must spea*s itself.

7= )he probati!eforce of e!idence

he probati!e force of e!idence is that e!ery e!idence is an e!idence of different effect

7? Rules of probati!eforce of e!idence

?onclusion, conditional, insufficient, e>clusi!e, facts which are not e!idencei. ?onclusi!e

It means the acceptance and recognition of fact by law as conclusi!e proof. It consists offacts which ha!e such probati!e force that they cannot be contradicted.

ii. ?onditionalIt means such proof which may be considered insufficient, if there is no pro!ed fact to thecontrary.

iii. InsufficientIf law prescribed a certain amount of e!idence to be absoulutely necessary and e!idence

produced does not come up to the necessary standard.i!. =acts which are not e!idence

here are certain facts which ha!e absolutely no probati!e force at all. hey can neither produced in the court acted upon.

7@ onclusion

a% of property> definition and i ts inds and acBuisition of property78 +ntroduction he substanti!e ci!il law has three main parts i.e law of property, law of obligations and law

of status. 5ere we discuss its first part i.e law of property. In modern times, the law of property includes all *inds of rights associated with person including his rights of life,reputations, liberty and all other claims which he might ha!e against all other persons.

79 oncepts of property =ollowing are concepts of propertyi . All legal rights

$almond says property includes all personal legal rights of what e!erdescriptions in its widest sense

ii. oncept of proprietary rights%roprietary rights includes all person-s rights associated or attached with his

property. In this sense, a man-s chattels, land, shares and all the debts due to himare his property but do not include his personal rights such as reputation, life orliberty.

iii. oncept of Proprietary rights in rem(ccording to this concept it includes all rights of property e>cept free hold

property, leasehold property, debt or benefit attached to the propertyi!. oncept of corporal property

(ccording to this concept property includes only materialistic or physical thingsor ob ect.


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7 6inds of property =ollowing are *inds of propertyi. orporeal and incorporeal property

?orporal property has its e>istence and its ownership and they are !isible andtangible.e.g land, houses, money, ornaments, gold etcincorporeal property ha!e no physical e>istence and they are in!isible andabstract frome.g logo, title, intellectual property, brand name etc.

ii. mo!eable and immo!able?orporeal property may further di!ided into mo!able and immo!able property. In englsih lawmo!eable are called chattels and immo!able called land.$almond says immo!eable property must ha!e following elements

a. It must some portions of earth-s surface.b. he ground beneath the surface down to the centre of the earth.c. he space abo!e the earthd. (ll ob ects attached to the earth whether natural or unnatural.e. (ll ob ects placed on that piece of earth e.g walls, doors, bric*s etcii. Real and personal property

#eal property is reco!erable in a real action while personal property is thatwhich is reco!erable in a personal action.

iii. Rights in re properia in immaterial things=ollowing are immaterial things

%atents, copy rights, literary copy rights, logo, trade mar*, brand name, artistic copy right,commercial good will.

i!. Right in re alienahese are rights of property which is in possession of other person rather its

actual owner e.g

a. ease of land actual owner of the property transfer the right to another person called lessee for some

period of time

b.ser!itudesthe limited use of land without ha!ing its possession e.g right of way or access or easementrightc.securities$ecurity is *ind of ad!ance; deposit of material things !ested in a creditor o!er the property ofhis debtor for the purpose of reco!ering his debt.

here are two *inds of securitiesi. ,ortgages

8hen immo!eable property is secured to another for obtaining debt,consideration or transactions is called mortgages, if the property is mo!eable itis called pledge.

ii. ienLien mean right to detain or retain any thing or ob ect which belong to otheruntil certain demands fulfilled

c.trustsrust is a *ind of re aliena. In trust the ownership of property is limited. he owner only can

dealt to the e>tent that benefits en oy by the other.

7; ,odes of acBuisition ofproperty

i. Possessionhe possession of a material ob ect is a title to the ownership of it by possessing

a material ob ect.ii. Prescription

%rescription means continuous possession and no one claim against that possession. It is the operation of time as !estiti!e fact.

iii. Agreement(greement is an e>pression by two or more person communicated to each otherunder common intention to create legal relationship between them.

+2. +nheritance( right is inheritable when its real owner dies, all rights or property transferredto its real or legal heirs or according to will of deceased person.

7< ,odes in %hich propertymay be di!est

=ollowing are modes in which property is di!ested or e>tinguished.a. y contract or sale

b. y gi!ing in trustc. y operation of lawd. y forfeiture or attachment or ac6uisition under the law.


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PERS#078 +ntroduction Law ta*es all human beings as person who has rights and duties towards each other but in

broader term all *ind of institutions, organi3ations, firms, partnership or associations are alsoconsidered as person in their indi!idual capacity and being a separate legal entity or identity.%erson is also *ind of unit which has claims, duties, liberties and obligations.

79 'efinition of person Salmond%erson is any being whom the law has gi!en rights and duties. (ny being which is capable to

perform duties and en oy the rights are called person whether human being or not.4ray( person is separate entity to which rights and duties may be attributed

7 6inds of person )here are t%o inds of personi. 0atural personii. egal person

i. 0atural Person( natural person is a human being which is capable of rights and duties.

hey may be person in fact or persons in law.ii. egal person

Legal persons are being real or imaginary whom the law has recogni3edor his authority has been recogni3ed in the same way as that of human

beings. hey are persons in law but not in fact.6inds of legal persons)here are three inds of legal persons

a. orporations( corporation is a group or series of person which are recogni3ed by law and treatedas person.

b. +nsti tutionsInstitutions are legal persons created for accomplishment of some legal, social,

political or economic purpose. E.g uni!ersity or churchc. 1und or estate

o run corporations or institutions funds are corpus person e.g charitable fund ortrust estate

7; egal status of lo%eranimals

(ccording to salmond only human beings are person and beasts are not persons because theydon-t ha!e natural or legal rights. hey are merely things or ob ects. 5owe!er law in somecountries ha!e recogni3ed their separate entity and they ha!e legal rights as law has grantedthem.=or e>ample cruel treatment to the animals is a criminal offence

7< egal status of unbornpersons

"nborn persons ha!e some legal rights. Law does not pre!ent a man from owing property before he is born. 5is ownership is real and present ownership but it is contingent until he orshe born.

7= egal status of dead person In law dead person are things and not persons and they ha!e no rights. 5owe!er dead personhas some rights such as he may be buried in respect and honor and his will may be honoured.

5e may not be defamed or his reputation may not be defamed through libel. 5is left propertymay be distributed among his legal heirs according to law or according to his will.7? 'ouble personality here are persons who ha!e double personality in different set of circumstances. $ometime he

acts as in personal capacity and sometimes acts as official or udicial capacity.

6inds of precedent#riginal precedent 'eclaratory precedent Persuasi!e precedent Authoritati!e precedent

i. 1. $uch precedentsestablish originalor new rules oflaw

ii. 2. Briginal precedent

creates a new principle of law.

iii. +. heir numbers are!ery small buttheir importanceis !ery good.

1. 1. $uch precedents re/affirm an alreadye>isting rule oflaw.

2. 2. @ood sourceof law.

+.

1. 1. $uch precedentsupon which the udgesare under no obligationto follow but only theyta*e into consideration.

hese are historicalsource of law

2. 2. 5istorical source oflaw and ha!e no legaleffects.

+. E.g. udgements offoreign courts ande>perts !iew

1. 1. $uch precedents whichthe udges must ha!e tofollow without 6uestion

2. 2. Important legal sourceof law.

+. +. here are two *inds ofauthoritati!e precedents

4. a. Absolute authoritati!eprecedent.

A. he precedents which ha!eto be followed by the

udges e!en if they don-tappro!e of them. hesedecisions are absolutelyfollowed.

6. . onditional

authoritati!e precedent. he precedents which are

normally binding upon thecourt but court may or maynot follow.


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4. E>ampleample the precedent of high court may beabrogated by the $upreme ?ourt.

9. Split decisions8hen the decisions is di!ided among the udges and there is no unanimous decision among udges, it binding force will bereduce. $tate !s Oulfi6ar (li hutto

. Re!ersal or affirmation on a different ground%recedents or udgement which the lower court re!erses on different points of !iew.

;. +nconsistency bet%een earlier decision of same ran courts( court is not bound by its own pre!ious decision that is in conflict with one another.

ible5. More concrete

C. est preparation for statutes law7. #e!iew of social law-4. asis of common law


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10. 'atural means of getting ustice11. certainty12. easily understandable1+. ?reates confidence in the minds of litigants.1 . %ro!ide better results

'emerits1. "ncertain and un*nown and re6uire great efforts for lawyers to search them.

2. hey are undetermined+. hey are complicated

. hey are less accessibleA. ?lash with logical interpretation of lawC. 'o test of !alidity

. ?onfusion in selection4. 'o abrogati!e power

english jurisprudence notes

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