Jurisprudence- Final Reading Material PDF

JURISPRUDENCE STUDY MATERIAL [1st Semester]  MODULE 1 ESSENCE OF LEGAL SYSTEM AND LEGAL METHOD The legal system of any country can be described as the set of rules of substance and procedure as well as the institutions relating to the governance of soci...

JURISPRUDENCE STUDY MATERIAL [1st Semester]  MODULE 1 ESSENCE OF LEGAL SYSTEM AND LEGAL METHOD The legal system of any country can be described as the set of rules of substance and procedure as well as the institutions relating to the governance of social behaviour and resolution of disputes which arise in the process. It also necessarily includes the underlying social values and attitudes which affect the operations of such values. There are generally considered to be five legal systems in the world today: civil law, common law, customary law, religious law, and mixed legal systems. The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards. The sources that jurisdictions adopt as authoritatively binding are the defining features of any legal system. Yet classification is a matter of form rather than substance since similar rules often prevail. Legal methods on the other hand refer to the manner in which those who make, activate or operate the law use the legal system to arrive at specific legal consequences. This necessarily involves rules of interpretation and other legal tools used to arrive at the desired legal consequences. Legal methods can therefore be defined as the way and manner of doing things relating to law in the society. Thus, legal method is the study of law and the various methods, processes, and procedure in which law can be effectively used to meet the need of the individual and the state Within legal methods are distinguished methods of legal reasoning (applying the law) and methods of interpreting (construing) the law. The former are legal syllogism (A syllogism is a form of logical reasoning that hinges on a question, a major premise, a minor premise and a conclusion. If properly plead, every legal action seeking redress of a wrong or enforcement of a right is "a syllogism of which the major premise is the proposition of law involved, the minor premise is the proposition of fact, and the judgment the conclusion.), which holds sway in civil law legal systems, analogy(an inference or an argument from one particular to another particular, as opposed to deduction, induction, and abduction, in which at least one of the premises, or the conclusion, is general rather than particular in nature.), which is present in common law legal systems, and argumentative theories that occur in both systems. The latter are different rules (directives) of legal interpretation such as directives of linguistic interpretation, teleological interpretation or systemic interpretation as well as more specific rules, for instance, golden rule, the plain meaning rule or mischief rule. Legal systems therefore deal with "what" and "why" of law while legal methods deal with "how" of law. LEGAL SYSTEM IN THE SOCIETY Man is a social being. He is part and parcel of society which has its own structure and organisation. Society is primarily based on order which order is achieved and maintained through social rules. Man's behaviour is closely controlled, either directly or indirectly through moral standards. religious doctrines, social edicts and customs as well as legal rules. In today's complex society, legal rules are especially significant and it is difficult to find any area of society which is completely free from legal control. There is therefore undeniable and manifest relationship between law and society and the individual members of society. To a law student society is a conglomeration of people, institutions and other social phenomena in the midst of which law occupies a central place holding these social arrangements together in an orderly fashion. Law is however only one part of the overall social structure as there are other social elements and forces. In addition to law, there are various and diverse social phenomena all of which form part of the entire social structure for example political institutions, economic and commercial institutions, religious institutions etcetera. These other institutions or social phenomena are however not completely free from legal control or influence. Law plays an important role in the definition of all kinds of social relationships between individuals and also between groups. In the early days law as we know today did not exist. The early man was self- sufficient in his wants. However as time went by need arose for specialisation in production of human necessaries and this in turn gave rise to social relationships such as trade and others for example emergency families and other units in the society. As a consequence there arose conflicts of interest and these necessitated the development of a system of social control for purposes of preserving the society itself. The main institutions of law in modern states are independent courts, representative parliaments, an accountable executive, the military and police, bureaucratic organisation, the legal profession and civil society itself. As the social groups become more sophisticated and complex, there is a corresponding increase in occupational specialisation and division of labour and as a consequence legal rules become even more sophisticated and complex. This is because just as society is dynamic so is the law. The law must always change in tandem with societal change if it is to stay relevant. WHAT IS LAW? Law is a term which does not have a universally accepted definition, but one definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behavior. Laws are made by governments, specifically by their legislatures. 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 countless ways and serves as a social mediator of relations between people. A general distinction can be made between civil law jurisdictions (including Canon and Socialist law), in which the legislature or other central body codifies and consolidates their laws, and common law systems, where judge-made binding precedents are accepted. Historically, religious laws played a significant role even in settling of secular matters, which is still the case in some countries, particularly Islamic. The adjudication of the law is generally divided into two main areas. 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 is used to review the decisions of government agencies. 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, the 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. All are equal before the law. The author Anatole France said in 1894, "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". said "more law, less justice". Marxist doctrine asserts that law will not be required once the state has withered away. FUNCTIONS OF LAW  Outlines what people can and cannot do  Protects public order (Criminal Law)   To resolve disputes between people (Civil Law)  Protects certainty of systems  Outlines what the government can do and what it cannot do  Helps to protect us a keep people safe The law is the body of rules imposed by a State upon its members which is designed to regulate human conduct within that State. The courts interpret these rules of conduct, decide whether they have been broken and pass sentence or make an award of compensation. A certain standard of behavior is thereby maintained amongst the members of the State in the interest of the common good. SOURCES OF LAW There are six most essential sources of Law in India. By sources of law we mean its beginning as law and the point from which it springs or emanates. As regards law there are six important sources. (A) Customs Customs are oldest source of law. It is the outcome of habits. When a particular habit is followed for a long time by the people regularly and habitually, the custom comes into being. When written laws were more conspicuous by their absence in the primitive society, it was customary laws that regulated human conduct in the primitive society. It is said that kings have no power to create custom and perhaps less to destroy it. Customs largely influence the legal system of a state and the state gets rid of the bad customs like Sati, Polygamy, and Dowry etc. only by means of legal impositions. The United Kingdom provides the best example of customary laws which are found in the common law of England. In the United Kingdom the law and custom are so intimately connected with each other that the violation of convention custom will lead to the violation of law. (B) Religion The religion is another important source of law. It played an important role in the primitive period when men were very much religious minded and in the absence of written laws the primitive people obeyed religion thinking it of divine origin. In the medieval period, most of the customs that were followed were only religious customs. Even today the Hindu Laws are founded on the code of Manu and the Mohammedan Laws are based on the Holy Koran. The religious codes become a part of the law of the land in the state incorporates the religious codes in its legal system. (C) Judicial Decisions Since the dawn of the human civilization the dispute between two parties is referred to a third party who acts as the arbiter. His decision is generally obeyed by both the parties. The arbiter may be a tribal chief or a priest. But with the passage of time, the judicial organ of the state is given power to decide cases between the parties. While deciding a case and pronouncing a judgment, the judges generally apply their own common sense and justice. This is known as Judge-made laws or case laws. Justice Holmes commented that "judges do and must make laws". The principle by which a judicial decision becomes a precedent is known as "Stare Decisis". (D) Scientific commentaries Chief Justice Hughes of the U.S.A. opines that " We are living under a constitution and the constitution is what the judges say it is". The law needs interpretation and the scientific commentaries and interpretations by eminent jurists have contributed a lot for the evolution of a legal system. The views of Blackstone in the U.K., Kent in the U.S.A. have made tremendous impact on the legal system of their respective countries. The opinions of these expert legal luminaries are always kept in high esteem by the judges and the courts. (E) Equity The term 'equity' literally means 'just', 'fairness' and according to 'good conscience'. When the existing law is inadequate or silent with regard to a particular case, the judges generally apply their common sense, justice and fairness in dealing with such cases. Thus, without 'equity' the term law will be devoid of its essential quality. (F)Precedent In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. The general principle in common law legal systems is that similar cases should be decided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases." Common law precedent is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and regulatory law (regulations promulgated by executive branch agencies). Stare decisis is a legal principle by which judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters. Case law is the set of existing rulings which have made new interpretations of law and, therefore, can be cited as precedent. In most countries, including most European countries, the term is applied to any set of rulings on law which is guided by previous rulings, for example, previous decisions of a government agency - that is, precedential case law can arise from either a judicial ruling or a ruling of adjudication within an executive branch agency. Trials and hearings that do not result in written decisions of a court of record do not create precedent for future court decisions. (G) Legislation This is the most important and modern source of law. The legislature is that organ of the state whose primary function is to make laws. To Leacock the legislatures deliberate, discuss and make laws. Thus, law can be defined as the opinion of the majority legislators. They are recorded in the Statute Book. When the legislature is not in session, the executive is empowered to issue ordinances, decrees etc. which as good as the laws are made by the legislatures Besides the above six sources of law we can add two more sources of law in the present days. The executive in a parliamentary democracy has the support of the majority legislators in the legislature enabling it to make laws according to its choice. The executive in a presidential system can influence legislation in the floor of the legislature through its party men. With the advent of time, the legislature is required to make laws in a large number of subjects. Due to paucity of time, the legislature makes laws in the skeleton form and the flesh and blood is added to it by the executive. This is termed as 'delegated legislation which has considerably enhanced the role of the executive in the field of legislation. Public opinion in this age of democracy plays a vital role in the process of lawmaking. In Switzerland, with direct democracy, public opinion is reflected through Landsgeminde, Referendum and Initiative, which paves the way for making laws for the state. CLASSIFICATION OF LAW (i)Procedural Law and Substantive Law Procedural law comprises the set of rules that govern the proceedings of the court in criminal lawsuits as well as civil and administrative proceedings. The court needs to conform to the standards setup by procedural law, while during the proceedings. These rules ensure fair practice and consistency in the "due process". Substantive law is a statutory law that deals with the legal relationship between people or the people and the state. Therefore, substantive law defines the rights and duties of the people, but procedural law lays down the rules with the help of which they are enforced. The differences between the two need to be studied in greater detail, for better understanding. Procedural Law Substantive Law  Structure: Elaborates on the steps Deals with the structure and which the case passes facts of the case through Enforcement: Creates the machinery for Defines the rights and duties the enforcement of law of citizens Powers: No independent powers Independent powers to decide the fate of a case Application: Can be applied in non legal Cannot be applied in non contexts legal contexts Differences in Structure and Content In order to understand the differences between the structure and content of substantative and procedural law, let's use an example. If a person is accused and undergoing a trial, substantive law prescribes the punishment that the under-trial will face if convicted. Substantative law also defines the types of crimes and the severity depending upon factors such as whether the person is a repeat offender, whether it is a hate crime, whether it was self-defense etc. It also defines the responsibilities and rights of the accused. Procedural law, on the other hand provides the state with the machinery to enforce the substantive laws on the people. Procedural law comprises the rules by which a court hears and determines what happens in civil or criminal proceedings. Procedural law deals with the method and means by which substantive law is made and administered. In other words, substantive law deals with the substance of the case, how the charges are to be handled and how the facts are to be dealt with; while procedural law will give a step by step action plan on how the case is supposed to proceed in order to achieve the desired goals. Therefore its procedural law that helps decides whether the case requires trial or otherwise. Powers of substantive vs. procedural laws Substantive law is an independent set of laws that decide the fate of a case. It can actually decide the fate of the under-trial, whether he wins or loses and even the compensation amounts etc. Procedural laws on the other hand, have no independent existence. Therefore, procedural laws only tell us how the legal process is to be executed, whereas substantive laws have the power to offer legal solution. Differences in Application Another important difference lies in the applications of the two. Procedural laws are applicable in non legal contexts, whereas substantive laws are not. So, basically the essential substance of a trial is underlined by substantive law, whereas procedural law chalks out the steps to get there. Example An example of substantive law is how degrees of murder are defined. Depending upon the circumstances and whether the murderer had the intent to commit the crime, the same act of homicide can fall under different levels of punishment. This is defined in the statute and is substantive law. Examples of procedural laws include the time allowed for one party to sue another and the rules governing the process of the lawsuit. (ii)Municipal and International Law International law governs the relation of sovereign independent states inter and constitutes a legal system the rules of which it is incumbent upon all states to observe. Municipal law also known as state law or national law is the law of state or a country. International law regulates the behavior of states whereas national law the behavior of individuals. International law concerns with the external relations of the states and its foreign affairs. Municipal law concerns with the internal relations of states o and its domestic affairs. International law is a law between equal sovereign states in which no one is supreme to the other but municipal laws the w law of the sovereign over the individuals subject to the sovereign rule. Whether international law is a law or not is a debatable question and this debate is continued where as municipal law i a law in a real sense and there is o doubt about it. However international law and municipal law relates to each other and some justice considers that both from a unity being manifestation of single conception of law while others say that international law constitutes an independent system of law essentially different from the municipal Law. Thus there are two theories knows as monastic and dualistic. According to monastic and the same thing. The origin and sources of these two laws are the same, both spheres of law simultaneously regulate the conduct of individuals and the two systems are in their essence groups of commands which bind the subjects of the law independently of their will. According to dualistic theory international law and municipal law are separate and self contained to the extent to which rules of one are not expressly tacitly received into the other system. The two are separate bodies of legal norms emerging in part from different sources comprising different difference subjects and having application to different objects. (iii)Public law and Private law Public law (lat. ius publicum) is that part of law which governs relationships between individuals and the government, and those relationships between individuals which are of direct concern to the society. Public law comprises constitutional law, administrative law, tax law and criminal law, as well as all procedural law. In public law, mandatory rules (not optional) prevail. Laws concerning relationships between individuals belong to private law. The relationships public law governs are asymmetric and unequal – government bodies (central or local) can make decisions about the rights of individuals. However, as a consequence of the rule of law doctrine, authorities may only act within the law (secundum et intra legem). The government must obey the law. For example, a citizen unhappy with a decision of an administrative authority can ask a court for judicial review. Rights, too, can be divided into private rights and public rights. A paragon of a public right is the right to welfare benefits – only a natural person can claim such payments, and they are awarded through an administrative decision out of the government budget. The distinction between public law and private law dates back to Roman law. It has been picked up in the countries of civil law tradition at the beginning of the 19th century, but since then spread to common law countries, too. The borderline between public law and private law is not always clear in particular cases, giving rise to attempts of theoretical understanding of its basis. Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts (as it is called in the common law), and the law of obligations (as it is called in civil legal systems). It is to be distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the state, including regulatory statutes, penal law and other law that affects the public order. In general terms, private law involves interactions between private citizens, whereas public law involves interrelations between the state and the general population. The public law is that branch of law which determines and regulates the organization and functioning of states (country). Also it regulates the relation of the state (country) with its subjects. Public law includes (i) constitutional law, (ii) Administrative law (iii) criminal law, (iv) municipal law (v) international law; criminal law is enforced on behalf of or in the name of the state. On the other hand, private law is that branch of the law which regulates those of the relation of the citizens with one another as are not of public importance.In this sense the state, through its judicial organs, adjudicates the matters in dispute between them. In other words, it is primarily concerned with the rights and duties of individuals to each other.under it, the legal action is begun by the private citizens to establish rights (In which the state is not primarily concerned) against another citizens or a group of citizens. Private law includes, (i) Law of contract (ii) Law of tort (iii) Law of property (iv) Law of succession, (v) family laws. Private law is sometimes, referred to as civil law. In the case of private law the role of the state is merely to recognize and enforce the relevant law. PURPOSES OF LAW Through the law, the information is passed on to the citizens every day in many various ways. Also, it is reflected in many branches of law. For example, contract law states that agreements need to exchange services, goods, or anything that is of value. Thus, it includes everything from purchasing a ticket to the trading options on the derivates market. Furthermore, property law defines the duties and rights of people towards the property. This includes real estate along with their possessions. Also, it includes intangible property like shares of stock and bank accounts. Various offenses against state, federal, or local community in itself appeared as a subject of criminal law. Thus, it provides the government to punish the offender. There are many purposes served by the law. Out of these, the main four are maintaining order, establishing standards, protecting liberties, and resolving disputes. RULE OF LAW The expression 'Rule of Law' has been derived from the French phrase 'la principle de legalite', i.e. a Government based on the principles of law. In implied by the state in the administration of justice. The Rule of law, according to Gamer, is of en used simply to describe the state le words, the term 'rule of law' indicates the state of affairs in a country where, in main, the law mules. Law may be taken to mean mainly a rule or principle which governs the external actions of the human beings and which is recognized and aloof affairs in a country where, in main, the law is observed and order is kept. It is an expression synonymous with law and order. The basis of Administrative Law is the 'Doctrine of the Rule of Law'. It was expounded for the first time by Sri Edward Coke, and was developed by Prof. A.V.Dicey in his book 'The law of the Constitution' published in 1885. According Coke, in a battle against King, he should be under God and the Lank thereby the Supremacy of Law is established. Dicey regarded rule of law as the bedrock of the British Legal System:. 'Fins doctrine is accepted in the constitutions of U.S.A. and India. According to Prof. Dicey, rules of law contain three principles or it has three meanings as stated below: Supremacy of Law or the First meaning of the Rule of Law. Equality before Law or the Second meaning of the Rule of Law: and Predominance of Legal Spirit or the Third meaning of the Rule of Law. Supremacy of Law: The First meaning of the Rule of Law is that 'no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. It implies that a man may be punished for.a breach of law but cannot be punished for anything else. No man can be punished except for a breach of law. An alleged offence is required to be proved before the ordinary courts in accordance with the ordinary procedure. Equality before Law: - The Second meaning of the Rule of Law is that no man is above law. Every man whatever is his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. Prof. Dicey states that, there must be equality before the law or equal subjection of all classes to the ordinary law of the land. He criticized the French legal system of droit Administrative in which there were separate administrative tribunals for deciding the cases of State Officials and citizens separately. He criticizes such system as negation of law 2. Predominance of Legal Spirit: - The Third meaning of the rule of law is that the general principles of the constitution are the result of juridical decisions determining file rights of private persons in particular cases brought before the Court. Dicey states that many constitutions of the states (countries) guarantee their citizens certain rights (fundamental or human or basic rights) such as right to personal liberty, freedom from arrest etc. According to him documentary guarantee of such rights is not enough. Such rights can be made available to the citizens only when they are properly enforceable in the Courts of law, For Instance, in England there is no written constitution and such rights are the result judicial decision. Application of the Doctrine in England: Though, there is no written constitution, the rule of law is applied in concrete cases. In England, the Courts are the guarantors of the individual rights. Rule of law establishes an effective control over the executive and administrative power. However, Dicey's rule of law was not accepted in full in England. In those days, many statutes allowed priority of administrative power in many cases, and the same was not challenged better c the Courts. Further sovereign immunity existed on the ground of King can do no wrong'. The sovereign immunity was abolished by the 'Crown Proceedings Act, 1947. Prof. Dicey could not distinguish arbitrary power from discretionary power, and failed to understand the merits of French legal system. Rule of Law under the Constitution of India: - The doctrine of Rule of Law has been adopted in Indian Constitution. The ideals of the Constitution, justice, liberty and equality are enshrined (embodied) in the preamble. The Constitution of India has been made the supreme law of the country and other laws are required to be in conformity with the Constitution. Any law which is found in violation of any provision of the Constitution is declared invalid. Part III of the Constitution of India guarantees the Fundamental Rights. Article 13(l) of the Constitution makes it clear that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provision of Part ill dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be void. Article 13(2) provides that the State should not make any law which takes away or abridges the fundamental rights and any law made in contravention of this clause shall, to the extent of the contravention, be void. The Constitution guarantees equality before law and equal protection of laws. Article 21 guarantees right to life and personal liberty. It provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article 19 (1) (a) guarantees the third principle of rule of law (freedom of such and expression). Article 19 guarantees six Fundamental Freedoms to the citizens of India -- freedom of speech and expression, freedom of assembly, freedom to form associations or unions, freedom to live in any part of the territory of India and freedom of profession, occupation, trade or business. The right to these freedoms is not absolute, but subject to the reasonable restrictions which may be imposed by the State. Article 20(1) provides that no person shall he convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence not be subject to a penalty greater than that which might have been inflicted tinder the law in for cc at the time of the commission of the offence. According to Article 20(2), no person shall be prosecuted and punished for the same offence more than once. Article 20(3) makes it clear that no person accused of the offence shall be compelled to be witness against himself. In India, Constitution is supreme and the three organs of the Government viz. Legislature, Executive and judiciary are subordinate to it. The Constitution provided for encroachment of one organ (E.g.: Judiciary) upon another (E.g.: Legislature) if its action is mala fide, as the citizen (individual) can challenge under Article 32 of the Constitution. In India, the meaning of rule of law has been much expanded. It is regarded as a part of the basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by Parliament. It is also regarded as a part of natural justice. In Kesavanda Bharti vs. State of Kerala (1973) - The Supreme Court enunciated the rule of law as one of the most important aspects of the doctrine of basic structure. In Menaka Gandhi vs. Union of India, AIR 1978 SC 597 - The Supreme Court declared that Article 14 strikes against arbitrariness. In Indira Gandhi Nehru vs. Raj Narahr, Alit 1975 SC 2299 - Article 329-A was inserted in the Constitution under 39th amendment, which provided certain immunities to the election of office of Prime Minister from judicial review. The Supreme Court declared Article 329-A as invalid since it abridges the basic structure of the Constitution. In A.D.M Jabalpur vs., Shivakant Shukla (1976) 2 SCC 521 AIR 1976 SC 1207 - This case is popularly known as Habeas Corpus Case. On 25th June, emergency was proclaimed under Article 359. Large number of persons was arrested under N11SA (Maintenance of Internal Security Act. 1971) without informing the grounds for arrest. Some of their filed petition in various high Courts for writ of Heabeas Corpus. The petitioners contend that their detention is violation of Article 21. It was argued on the other side that the protection tinder Article 21 is not available (suspended) during emergency. The preliminary objection (not to file writ petitions during emergency). The Preliminary objection (not to file writ petitions during emergence) was rejected by various High Courts. The Madhya Pradesh Government through Additional District Magistrate. Jabalpur and Government of India filed appeals before Supreme Court. The question before Supreme Court was, whether there was any rule of law in India apart front Article 21 of the Constitution. The Supreme Court by majority held that there is no rule of law other than the constitutional rule of law. Article 21 is our rule of law. If it is suspended, there is not rule of law.  MODULE 2 CONCEPT OF LAW Wherever the concept of law is examined, as it occurs, for example, in mathematics, logic, and the physical sciences, one surrounded by puzzles and confusion. Laws are acknowledged to be very queer things; baffling questions about them arise on every side. Nowhere, however, is the thicket of intellectual difficulties more tangled than it is about the concept of law in jurisprudence. Some of the main questions that require answers are: (1) what is a law? (2) What is the legal system? (3) What are the criteria for good laws? (4) Who or what is the authority behind the law? Many of the troubles and falsehoods which a philosopher of law is appropriate to encounter, initiated by a tendency to confuse two or more of these questions. However, even when he avoids that kind of error, the tasks of determining the precise meaning of these questions and their answers remain formidable ones. H. L. A. Hart, Professor of Jurisprudence in the University of Oxford, discusses these and related problems in his new book. Hart, being a lawyer, is also a fine philosopher: in short, just the man for the job. Moreover, he has done it exceedingly well. Hart expressed hope that “it may also be of use to those whose interests are in moral or political philosophy or sociology, rather than in law” is amply fulfilled. There is an introductory chapter which explains the “persistent questions” of legal theory, three chapters dealing critically with the views of John Austin, three in which he expounds his positive theory of the law itself, one concerning justice and morality, another on the relationship between law and morals, and a concluding chapter which deals with international law. Law can be said to be a principle and regulation established in a particular community by an authority and applicable to its people, whether in the form of legislation or custom and policies recognised and enforced by State authority. In jurisprudence, law is the subject matter. As per Blackstone, a law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kind of actions irrespective of gender, caste, language, race, birth, colour, etc. According to Salmond, the body of principles recognised and applied by the state in the administration of justice. There are different types of law such as general law, private international law, conventional law, special law, municipal law, customary law, international law, private law, public law, constitutional law, administrative law, substantive law and procedural law. MAJOR LEGAL SYSTEM OF THE WORLD There are five basic types of legal systems in the world. They are civil law, common law, customary law, religious law, and hybrid or mixed systems. Today, mixed or hybrid systems are common. Because each system varies by country, this chapter will focus on the characteristic traits of each kind of system. 1. COMMON LAW SYSTEM: The US legal system, and other legal systems that emanate from British rule, is a common law system.44 Originally, common law meant judge-made law that filled in gaps when there was no written law. Judges looked to prior decisions to determine the unwritten judge-made law and apply it to new cases. However, today, almost all law is in writing and enacted by a legislature as statutes. Many statutes codify established common law, change it, or abolish it altogether, depending on the topic of the law. There are instances in which some unwritten common law is still enforced, but these are rare. In a common law system such as the one in the United States, the courts’ reliance on precedent is referred to as stare decisis, or a policy of using judicial decisions made in the past to interpret written laws and appropriately apply those laws to the facts in the present case.45 The court interprets written  laws, and these interpretations and applications of precedent from prior interpretations constitute what is meant by common law today. Precedent is critical for interpreting later cases, and only the same or a higher court can overturn precedent. The court process is adversarial rather than investigatory, with each side trying to win or persuade the court to agree with its perspective. Common law courts are adversarial; that is, there is a winner-takes-all attitude in the court. In an adversarial system, each side determines the issues and questions it wants the court to resolve, conducts its own investigation, and prepares and presents its own evidence. Each side calls witnesses, who are questioned directly and by cross-examination. Each side brings out information it thinks is pertinent to prove its point. In a criminal case, the police and prosecutor work together closely to establish their viewpoint using the government’s resources. Defendants must rely on their own resources to defend against the charges, either hiring an attorney or using a court- appointed one. In a civil case, the procedures are similar; however, each side must rely on its resources to prove its point. If a jury is present, it decides all factual questions while the judge determines the legal issues and moderates the proceedings. In some cases, the judge can act as a fact finder in place of a jury. 2. Civil law system: Most of Europe and South America use a civil law system.47 A civil law system relies on comprehensive legal codes that contain all laws for the country. Case law—that is, judicial decisions—is secondary to these codes. Decisions are binding only on the parties to the case, not as a precedent for later cases on the same issues. While attorneys will consult prior decisions when advising clients, judges are rarely bound to follow precedent. For this reason, codes of statutes are usually more extensive and detailed than in common law systems. In civil law systems, court cases are investigations by the court to see how the facts fit into the already established codes applicable to the situation. The court system is set up so that the jurisdiction of each court is a specific type of code: tax courts, administrative courts, maritime courts, constitutional courts, and so on. The system is more inquisitorial than adversarial. The process is a series of meetings, hearings, and written communications in which the judge takes testimony. The judge crafts the  issues to be decided based on discussions with the parties. Typically, the judge questions the witnesses and can include or exclude any queries submitted by the attorneys when crafting questions. Finally, the judge determines the issues and gathers the evidence before announcing a decision.48 Only at the final hearing do the attorneys and parties make arguments to the judge. If there is a jury, its members usually are not drawn from the general public but are selected for their expertise in the particular area in question. While juries of ordinary people are rare in civil law systems, they are increasingly used in serious criminal cases. These two systems, common law and civil law systems, are the most widely used legal systems in the world. They differ in terms of the weight they give to judicial precedent and their views on the purpose of the trial process. 3. Religious law system: In a religious law system, the law relies on religious texts as its primary basis, and the courts interpret the present facts and statutes in light of those religious texts. Many Middle Eastern countries use religious law systems for all or part of their laws.49 For example, in Saudi Arabia, the legal system is based on sharia law, derived from the Koran, the Islamic religious text, as well as from the Sunnah and the Hadith.50 The legislature enacts statutes, but all are tested against Islamic tenets. Certain religious leaders can overrule any government act, including court decisions, on religious grounds. The legal system includes general and summary sharia courts, with some administrative tribunals for specific topics. Religious law systems do not use juries, and criminal trials do not present defensive evidence to the same extent as in other legal systems. Each judge, a specialist in the religious sharia text, makes their interpretation of the law and is not bound by any precedent. Israel also uses some religious laws and courts to determine cases.51 For example, religious courts in Israel include Jewish rabbinical courts, Islamic sharia courts, Druze religious courts, and ecclesiastical courts of the 10 recognized Christian communities. In Israel, these courts are limited to some specific issues of family law. The secular court system decides all other matters. 4. Customary law system: A customary law system is a system based on long- standing traditions in a particular community. The traditions have become so  ingrained in society that the courts recognize them as enforceable rules. However, it is rare for customary laws to be interpreted and enforced by the government. Instead, select leaders of the group usually implement the customary laws. As a result, customary laws are typically unwritten and revealed only to group members. Today, customary laws are found in closed, isolated communities combined with common or civil law systems, allowing them to exist alongside government systems in a hybrid system. Andorra, a small country in the Pyrenees bordering Spain and France, relies partly on customary law. In Andorra, sources of customary law include canon law, the ecclesiastical law of the Catholic Church, Castilian law, French law, and Roman law. Andorra was invaded and under the control of other European powers at different times in its history, and the Andorran legal system now reflects elements of each invader’s laws. Today, Andorra is a parliamentary co- principality between the president of France and the Roman Catholic bishop of Catalonia (Urgell). Andorra also has an elected parliament that can enact new laws.52 5. Hybrid or mixed system: A hybrid legal system combines parts of more than one approach to create a system unique to the country. Many countries have mixed legal systems incorporating common, civil, religious, and customary law systems.59 For example, the US state of Louisiana has a hybrid system. Louisiana uses some common law, but it also utilizes a civil law system for much of its state law and procedures because of its origins as a French territory. Also, on recognized tribal lands, customary laws of the tribe may be used rather than state or federal laws. Another example is the Philippine system, which includes French civil law, US-style common law, sharia law, and Indigenous customary law due to its history.60 Many African countries include a parallel tribal or ethnic legal system to adjudicate family law matters. RELATION OF JUSTICE WITH LAW AND ETHICS Justice was closely related to ethics in its Greek concept. According to Cephalus, justice means telling the truth and repaying one‟s debt. Polemarchus defines justice as giving what is due to every person insociety.Plato believed in the natural inequality of men and therefore he advocated the class system. He divided people into four categories, namely, the ruling class, the military class, the producing class and the craftsmen. For Plato, justice is the fundamental virtue and a principle of non interference, which keeps within proper bounds the various classes of society, various individuals of each class and various elements in an individual‟s soul.1It is a principle of functional specialization. According to Aristotle, justice is principally used to describe a conduct in agreement with law. He classified justice into two categories: distributive justice and corrective justice. Aristotle powerfully argues that all lawful and fair acts are just; all unlawful and unjust acts are unfair. But if there is conflict between fair and lawful standards, what standards should the people and institutions choose? This question discounted by Aristotle in analysing the concept of justice has opened a historically unsettled debate on the nature of law, morality, and justice. The classical Roman lawyers were influenced by the Greek philosophy. Cicero was a lawyer who advocated that justice is a natural law which does not depend upon the consent of man.In the middle ages, St. Augustine stated that justice is the foundation of the state. According to him, justice is not created bythe civil authority but by the Church.Despite his Christian commitment to love and peace, Augustine is not a pacifist and can support “just wars” as morally permissible and even as morally obligatory.St. Aquinas conceded with Aristotle on the concept of justice based on equality. Justice according to Karl Marx depends on the modes of production and the relations of production.The idea of justice and its content varies with the economic interest of the ruling class.The discussion about the concept of justice will not be complete without reference to the ideas of philosophers of ancient India. The word “dharma” is almost synonymous to “nyaya” or justice. Manusmriti forms a very important part of hindu jurisprudence. Gautam Buddha’sconcept of justice is not confined only to respecting the law, but it also justifies a revolutionary concept of disobedience or defying law, if the law is evil. Chaïm Perelmanis considered one of the greatest Law philosophers of the 20th century. According to him, “Each will defend a conception of justice that puts him in the right and his opponent in the wrong.” He gives six main conceptions of justice. “To each the same thing” means all people must be treated in the same way without regard to their distinguishing particularities. “To each according to his merits” means human beings should receive proportionate considerations according to their merits. “To each according to his works” means not presupposing equal treatment for all but according to the results of their actions. “To each according to his needs” makes this justice formula similar to charity. “To each according to his ranks” means recognising differences men acquire according to their position. “To each according to his legal entitlement” means the living according to the letter of law. Bentham’s concept of justice signifies his idea of utility as it is legitimized in law.Benthamʼs disciple, John Stuart Mill, further explains Bentham‟s concept of justice in considering that one can sacrifice his/her happiness for the sake of virtue, which is better than happiness.According to Immanuel Kant, any act which is good as a means to something else, is a hypothetical imperative; whereas, any act that is self-sufficiently good in itself and conforms to reason is a categorical imperative. SOCIAL MORALITY AND LEGAL ORDER Social morality and legal order are intricately connected concepts within jurisprudence, reflecting the dynamic interplay between societal values and formal legal systems. Social morality encompasses the collective norms, values, and ethical beliefs held by members of a society, serving as a foundation for what is considered right and wrong within that community. These moral principles are often deeply rooted in cultural, religious, and historical contexts, shaping the behavior and expectations of individuals. Legal order, on the other hand, represents the structured system of laws, regulations, and institutions established by the state to govern social conduct and resolve disputes. It provides the formal mechanisms through which social norms are enforced and conflicts are adjudicated. The relationship between social morality and legal order is both foundational and complex, as laws frequently reflect the moral values prevalent in a society, translating these values into formal rules and sanctions. For instance, criminal laws prohibiting theft, assault, and murder are grounded in the widespread moral belief that such actions are inherently wrong and harmful. By embodying these moral principles, legal order not only upholds societal values but also helps to ensure consistency, stability, and predictability in the regulation of behavior. However, the alignment between social morality and legal order is not always perfect. There can be tensions and discrepancies when legal norms diverge from prevailing moral beliefs, leading to debates about the legitimacy and effectiveness of the law. For example, laws that are perceived as outdated or unjust in light of evolving moral standards may face challenges, resulting in calls for reform or legal change. This tension highlights the need for legal systems to be adaptable and responsive to shifts in social morality, ensuring that laws continue to reflect and reinforce contemporary ethical values. Conversely, legal order also plays a role in shaping social morality by promoting and institutionalizing new values and behaviors. Through the enactment of progressive laws—such as those addressing civil rights, environmental protection, or public health—legal systems can influence societal attitudes and encourage the adoption of new moral norms. This role of law as a catalyst for social change underscores its potential to drive moral evolution and foster a more just and equitable society. The interaction between social morality and legal order is further complicated by the diversity of moral perspectives within pluralistic societies. Legal systems must navigate competing moral viewpoints and strive to balance conflicting interests while upholding principles of justice and fairness. This balancing act involves careful consideration of how laws can accommodate diverse beliefs and values without compromising their effectiveness or integrity. In this context, jurisprudence examines how legal systems can address the challenges of maintaining moral coherence while respecting individual rights and pluralism. The interplay between social morality and legal order reflects the ongoing negotiation between ethical ideals and practical governance, illustrating the importance of aligning legal frameworks with the evolving moral landscape of society. This dynamic relationship ensures that legal systems remain relevant and effective in promoting social harmony and addressing the complexities of modern life. Ultimately, the connection between social morality and legal order highlights the crucial role of law in both reflecting and shaping societal values, providing a structured approach to managing ethical standards and guiding social progress. SOCIAL MORALITY AND LEGAL ORDER Social morality and legal order are two interdependent yet distinct pillars of society. Social morality refers to the collective principles, values, and standards of behavior that a society deems acceptable. These norms often emerge from cultural, religious, and philosophical traditions and guide individual conduct in a way that promotes social harmony. On the other hand, legal order refers to the formal system of rules and regulations enforced by the state to maintain public order, protect rights, and ensure justice. The relationship between social morality and legal order is complex and dynamic. Social morality often informs the development of laws, as legal systems typically aim to codify and enforce the ethical standards that are widely accepted within a society. For instance, many laws against theft, murder, and fraud reflect the moral consensus that such actions are harmful and unjust. However, legal order can also shape social morality by institutionalizing certain values and behaviors, thereby influencing societal attitudes over time. One key area where the interplay between social morality and legal order is evident is in the regulation of behaviors that may not be inherently harmful but are considered immoral by societal standards. For example, laws against adultery, prostitution, or substance abuse have historically been justified on moral grounds, even though the direct harm to others may be limited. In such cases, the legal order serves to reinforce social morality by punishing behavior that deviates from accepted norms. However, the alignment between social morality and legal order is not always perfect. As societies evolve, moral values can change, sometimes leading to tensions between established laws and emerging social attitudes. For instance, the decriminalization of homosexuality in many countries during the late 20th and early 21st centuries reflects a shift in social morality toward greater acceptance of diverse sexual orientations. This shift necessitated changes in the legal order, which had previously criminalized homosexual acts based on older moral views. Another example is the ongoing debate over abortion rights. In many societies, there is a moral divide between those who believe in the sanctity of life from conception and those who advocate for a woman's right to choose. Legal orders in different jurisdictions reflect this moral debate, with some countries enacting strict anti-abortion laws and others allowing for greater reproductive freedoms. This illustrates how legal order can both reflect and influence the moral values of a society, sometimes resulting in significant social and legal conflicts. Moreover, the enforcement of laws based on social morality can sometimes lead to injustices, particularly when moral norms are used to justify discriminatory practices. Historical examples include laws that enforced racial segregation, denied women the right to vote, or criminalized interracial marriage. These laws, which were once justified by prevailing social morality, are now widely recognized as unjust and discriminatory. This underscores the importance of critically examining the moral foundations of legal order and ensuring that laws are not merely a reflection of majority values but also uphold fundamental principles of justice and equality. In conclusion, social morality and legal order are deeply intertwined, with each influencing and shaping the other. While social morality often informs the creation and enforcement of laws, the legal order can also mold societal values over time. However, it is crucial for legal systems to balance the moral beliefs of society with the protection of individual rights and the promotion of justice, ensuring that laws do not perpetuate injustice or discrimination. As societies continue to evolve, the relationship between social morality and legal order will remain a key area of legal and ethical discourse. LOGICAL REASONING AND LEGAL THEORY Logical reasoning is fundamental to legal theory, serving as the backbone for constructing, interpreting, and applying the law. It involves the use of structured arguments to arrive at conclusions based on premises that are consistent and coherent with established legal principles. Legal theory, on the other hand, is the study of the philosophical foundations of law, exploring the nature, purposes, and systems of laws that govern society. The intersection of logical reasoning and legal theory is crucial in ensuring that legal arguments are not only persuasive but also justifiable within the broader framework of the law. One of the key aspects of logical reasoning in legal theory is the application of deductive reasoning. Deductive reasoning is a process where a general principle is applied to a specific case to derive a conclusion. For example, if a legal principle states that "all persons who intentionally cause harm to others are liable for damages," and it is established that "Person A intentionally caused harm to Person B," the logical conclusion would be that "Person A is liable for damages." This method of reasoning ensures consistency in the application of legal rules and promotes fairness in judicial decisions. Another important aspect is inductive reasoning, where specific cases or observations are used to develop general legal principles. Inductive reasoning is often employed in common law systems, where legal precedents play a critical role. For instance, judges may examine a series of similar cases to derive a general rule or principle that can be applied in future cases. This form of reasoning allows the law to evolve and adapt to new circumstances while maintaining coherence with established legal norms. Analogical reasoning also plays a significant role in legal theory. This involves drawing parallels between two similar cases to apply the same legal reasoning or principles. Analogical reasoning is particularly useful in situations where there is no direct precedent, allowing judges to resolve new issues by comparing them to existing cases. For example, if a court has previously ruled that a company can be held liable for pollution caused by its factory, a similar ruling might be made if another company is found to have caused environmental damage, even if the specifics differ. This method of reasoning helps maintain consistency and predictability in legal decisions. Legal theorists such as H.L.A. Hart and Ronald Dworkin have extensively discussed the role of logical reasoning in legal theory. Hart, in *The Concept of Law*, emphasizes the importance of rules in legal reasoning, arguing that the legal system is a set of primary and secondary rules that guide judicial decisions. According to Hart, logical reasoning is essential for interpreting these rules and ensuring that they are applied consistently. Dworkin, on the other hand, in *Law's Empire*, critiques the strict application of rules and advocates for a more interpretative approach to legal reasoning. He argues that judges should not only rely on legal rules but also consider principles and moral reasoning when making decisions. Dworkin's theory highlights the importance of coherence in legal reasoning, suggesting that legal decisions should be based on a balance of rules, principles, and moral considerations. The interplay between logical reasoning and legal theory is also evident in the debates surrounding legal positivism and natural law theory. Legal positivists, like Hart, argue that the validity of law is determined by its sources and not by its moral content. They emphasize the importance of logical reasoning in applying legal rules as they are written. In contrast, natural law theorists assert that law should be grounded in moral principles, and logical reasoning should include ethical considerations to ensure that the law promotes justice and the common good. LOGIC AS AN INSTRUMENT OF LEGAL REASONING Logic plays a pivotal role in legal reasoning, serving as a crucial instrument for structuring arguments, interpreting laws, and ensuring consistent and fair outcomes in legal decisions. In the legal context, logic involves the use of structured thinking processes to connect legal principles, facts, and conclusions in a coherent manner. One fundamental aspect of logic in legal reasoning is deductive reasoning. This involves applying general legal principles to specific cases to derive a conclusion. For example, if a law states that "all contracts require mutual consent," and it is established that a particular agreement lacks mutual consent, logical deduction would conclude that the agreement is not a valid contract. This process ensures that legal decisions adhere to established rules and principles, maintaining consistency across cases. Inductive reasoning is another form of logic used in legal reasoning, particularly in common law systems. It involves deriving general principles from specific cases or judicial precedents. For instance, by examining multiple cases where courts have ruled on similar issues, a general legal principle can be formulated. This allows the law to evolve over time while ensuring that new decisions are grounded in established legal traditions. Legal theorists like H.L.A. Hart have emphasized the importance of logic in the interpretation and application of law, arguing that logical reasoning is essential for maintaining the rule of law and ensuring that legal outcomes are just and predictable. LAW MORALITY AND LIMITS OF PRACTICAL REASONS The relationship between law, morality, and practical reason is a central issue in legal philosophy. Law is a system of rules created and enforced by institutions, while morality is a set of principles that guide individuals on what is right or wrong. Practical reason, on the other hand, refers to the use of reason to decide how to act, particularly in complex situations where moral and legal considerations intersect. H.L.A. Hart argued that law and morality are distinct yet related. While the law often reflects societal moral values, it does not always align with them. For instance, legal systems might enforce rules that some may consider immoral, such as laws permitting capital punishment. The role of practical reason in this context is to navigate the tension between legal obligations and moral considerations, determining when and how to obey or resist the law based on ethical reasoning. John Finnis in Natural Law and Natural Rights discusses the limits of practical reason, particularly when legal rules conflict with moral imperatives. He argues that practical reason must be guided by a commitment to the common good, but acknowledges that there are limits to its ability to resolve conflicts between law and morality. For instance, in cases of civil disobedience, practical reason must weigh the moral obligation to oppose unjust laws against the potential consequences of breaking the law. LAW, MORALITY AND SOCIAL CHANGE The relationship between law, morality, and social change is a foundational concept in jurisprudence, reflecting the dynamic interplay between legal systems, ethical norms, and societal evolution. These three elements are deeply interconnected, with each influencing and shaping the others in significant ways. Understanding how they interact is essential for comprehending the role of law in society, the nature of legal obligations, and the processes by which societies evolve over time. The Interconnection of Law and Morality In jurisprudence, law and morality are often viewed as distinct but related domains. Law refers to the formal rules and regulations enacted and enforced by the state, whereas morality encompasses the informal norms, values, and principles that guide individual and collective behavior. Despite their differences, law and morality are closely linked, as laws frequently reflect the moral values of the society in which they are enacted. For example, laws against theft, murder, and fraud are rooted in the moral conviction that such actions are wrong and harmful to the community. However, the relationship between law and morality is not always straightforward. While laws often codify moral principles, there can be instances where legal rules diverge from prevailing moral beliefs. This divergence can lead to debates about the legitimacy and authority of the law, particularly when laws are perceived as unjust or out of step with contemporary moral values. Jurisprudential theories such as natural law and legal positivism offer differing perspectives on the connection between law and morality. Natural law theorists argue that law must be rooted in universal moral principles to be legitimate, while legal positivists maintain that the validity of law is based on its formal enactment, independent of its moral content. The Role of Law in Social Change Law plays a crucial role in driving and managing social change. Legal systems provide the framework within which social transformations can occur, either by reinforcing existing norms or by challenging and reshaping them. In many cases, legal reforms are a response to changing social conditions and evolving moral values. For example, the expansion of civil rights, the legalization of same-sex marriage, and the decriminalization of certain drugs are all examples of legal changes that reflect shifts in societal attitudes and moral perspectives. Moreover, law can be a proactive instrument for social change, used by governments and social movements to promote new values and behaviors. Laws that promote gender equality, environmental protection, or public health are often designed to influence social attitudes and encourage behavior that aligns with emerging moral norms. Through the enactment of such laws, legal systems can help to shape the moral landscape of society, fostering new forms of social organization and interaction. However, the relationship between law and social change is complex and sometimes contentious. Legal changes can provoke resistance, particularly when they challenge deeply held beliefs or disrupt established social structures. The process of legal reform is often slow and incremental, as it requires balancing competing interests, addressing conflicts, and building consensus. Jurisprudential scholars study these dynamics to understand how law can effectively contribute to social progress while minimizing social disruption. The Influence of Social Change on Law Just as law influences social change, social change also impacts the development of law. Societal transformations—whether due to economic shifts, technological advancements, cultural changes, or political movements—can lead to new legal challenges and necessitate the creation of new laws or the revision of existing ones. For instance, the advent of digital technology has led to the emergence of new legal issues related to privacy, cybersecurity, and intellectual property, prompting the adaptation of legal frameworks to address these challenges. Social change can also alter the interpretation and application of existing laws. Courts and legal institutions often reinterpret laws in light of new social realities, a process that is central to the evolution of legal systems. This dynamic interaction between social change and law ensures that legal systems remain relevant and responsive to the needs of society. LAW AND THE ENVIRONMENT OF MORALS Law and environments of social change are deeply intertwined, reflecting how legal frameworks adapt to and influence shifting social landscapes. At its core, the law acts as a mechanism to regulate and mediate the effects of social change, whether driven by technological advancements, economic shifts, or cultural transformations. For instance, as societies evolve and encounter new challenges, legal systems are often called upon to address emerging issues that were previously unregulated or inadequately addressed. The rapid pace of technological innovation exemplifies this relationship; the rise of the internet and digital technologies has prompted a host of new legal considerations, including those related to privacy, data protection, and cybersecurity. These legal adaptations are necessary to protect individuals' rights and maintain social order in a landscape where traditional legal norms may no longer suffice. Similarly, economic transformations, such as the globalization of trade and the rise of gig  economies, require new legal approaches to manage labor rights, intellectual property, and commercial regulations. Legal systems must navigate these changes by crafting new laws or amending existing ones to ensure they remain effective and relevant. Cultural shifts also drive legal reform, as societal attitudes towards issues like marriage equality, drug decriminalization, and environmental protection evolve. For example, the growing awareness of climate change has led to a proliferation of environmental laws and regulations aimed at reducing carbon emissions, promoting sustainable practices, and safeguarding natural resources. These legal responses are both a reflection of and a catalyst for social change, as they shape public policy and influence behavior by setting standards and enforcing compliance. The law, therefore, not only responds to social change but actively participates in shaping it by providing the frameworks and incentives necessary for new norms and behaviors to emerge. This dynamic interaction between law and social change underscores the importance of having flexible and responsive legal systems that can address the complexities of modern society. Jurisprudence examines how laws are adapted to meet the needs of evolving social contexts, exploring the ways in which legal institutions can anticipate and manage change while balancing the interests of various stakeholders. Ultimately, the relationship between law and environments of social change highlights the role of legal systems in fostering stability and continuity while accommodating the ongoing transformation of societal values and conditions. This interplay ensures that the law remains a relevant and effective tool for guiding social progress, protecting individual rights, and promoting the public good in an ever-changing world.  MODULE III Precedents In general use, the term “precedent” means some set pattern guiding the future conduct. In the judicial field, it means the guidance or authority of past decisions of the courts for future cases. Only such decisions which lay down some new rule or principle are called judicial precedents. Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries. This is particularly so in the case of England and other countries which have been influenced by English jurisprudence. The principles of law expressed for the first time in court decisions become precedents to be followed as law in deciding problems and cases identical with them in future. The rule that a court decision becomes a precedent to be followed in similar cases is known as doctrine of stare decisis. The reason why a precedent is recognised is that a judicial decision is presumed to be correct. The practice of following precedents creates confidence in the minds of litigants. Law becomes certain and known and that in itself is a great advantage. Administration of justice becomes equitable and fair Kinds of Precedents Precedents may be classified as: (i) Declaratory and Original Precedents: According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. An original precedent is one which creates and applies a new rule of law. In the case of a declaratory precedent, the rule is applied because it is already a law. In the case of an original precedent, it is law for the future because it is now applied. In the case of advanced countries, declaratory precedents are more numerous. The number of original precedents is small but their importance is very great. They alone develop the law of the country. They serve as good evidence of law for the future. A declaratory precedent is as good a source of law as an original precedent. The legal authority of both is exactly the same. (ii) Persuasive Precedents: A persuasive precedent is one which the judges are not obliged to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. A persuasive precedent, therefore, is not a legal source of law; but is regarded as a historical source of law. Thus, in India, the decisions of one High Court are only persuasive precedents in the other High Courts. The rulings of the English and American Courts are persuasive precedents only. Obiter dicta also have only persuasive value. (iii) Absolutely Authoritative Precedents: An authoritative precedent is one which judges must follow whether they approve of it or not. Its binding force is absolute and the judge’s discretion is altogether excluded as he must follow it. Such a decision has a legal claim to implicit obedience, even if the judge considers it wrong. Unlike a persuasive precedent which is merely historical, an authoritative precedent is a legal source of law. Absolutely authoritative precedents in India: Every court in India is absolutely bound by the decisions of courts superior to itself. The subordinate courts are bound to follow the decisions of the High Court to which they are subordinate. A single judge of a High Court is bound by the decision of a bench of two or more judges. All courts are absolutely bound by decisions of the Supreme Court. In England decisions of the House of Lords are absolutely binding not only upon all inferior courts but even upon itself. Likewise, the decisions of the Court of Appeal are absolutely binding upon itself. (iv) Conditionally Authoritative Precedents: A conditionally authoritative precedent is one which, though ordinarily binding on the court before which it is cited, is liable to be disregarded in certain circumstances. The court is entitled to disregard a decision if it is a wrong one, i.e., contrary to law and reason. In India, for instance, the decision of a single Judge of the High Court is absolutely authoritative so far as subordinate judiciary is concerned, but it is only conditionally authoritative when cited before a Division Bench of the same High Court. Doctrine of Stare Decisis The doctrine of stare decisis means “adhere to the decision and do not unsettle things which are established”. It is a useful doctrine intended to bring about certainty and uniformity in the law. Under the stare decisis doctrine, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. In simple words, the principle means that like cases should be decided alike. This rule is based on public policy. Although doctrine should be strictly adhered to by the courts, it is not universally applicable. The doctrine should not be regarded as a rigid and inevitable doctrine which must be applied at the cost of justice. Ratio Decidendi The underlying principle of a judicial decision, which is only authoritative, is termed as ratio decidendi. The proposition of law which is necessary for the decision or could be extracted from the decision constitutes the ratio. The concrete decision is binding between the parties to it. The abstract ratio decidendi alone has the force of law as regards the world at large. In other words, the authority of a decision as a precedent lies in its ratio decidendi. Prof. Goodhart says that ratio decidendi is nothing more than the decision based on the material facts of the case. Where an issue requires to be answered on principles, the principles which are deduced by way of abstraction of the material facts of the case eliminating the immaterial elements is known as ratio decidendi and such principle is not only applicable to that case but to other cases also which are of similar nature. It is the ratio decidendi or the general principle which has the binding effect as a precedent, and not the obiter dictum. However, the determination or separation of ratio decidendi from obiter dictum is not so easy. It is for the judge to determine the ratio decidendi and to apply it on case to be decided. Legal Rights and Duties In jurisprudence, the study of legal rights and duties is central to understanding how law functions in society. Legal rights and duties are intertwined concepts that define the relationship between individuals, the state, and the law. Legal Rights *1. Definition and Nature: A legal right is a claim or entitlement that a person or entity has under the law. This right is recognized and protected by the legal system, and it can be enforced through legal action. Legal rights are often correlated with duties imposed on others. -Hohfeldian Analysis: In jurisprudence, Wesley Hohfeld offered a detailed analysis of legal rights by breaking them down into four categories: claim-rights, privileges, powers, and immunities. Claim-right: If person A has a claim-right, person B has a duty to do or not do something in respect to A. Privilege: If person A has a privilege, A has no duty to refrain from doing something. Power: If person A has a power, A can alter their own or another’s legal rights or duties. Immunity: If person A has an immunity, person B cannot alter A's rights or duties. Types of Legal Rights -Public vs. Private Rights: Public rights involve the relationship between individuals and the state (e.g., the right to vote), whereas private rights concern relationships between individuals (e.g., property rights). -Civil vs. Political Rights: Civil rights are those that protect individual freedoms (e.g., freedom of speech), while political rights involve participation in the governance of a society (e.g., the right to run for office). Theories of Rights Natural Rights Theory: This theory suggests that rights are inherent and not contingent upon laws or customs. They are universal and inalienable. Positivist Theory: Legal positivists argue that rights are granted by the state and exist only where there are laws to enforce them. Legal Duties Definition and Nature: - A legal duty is an obligation imposed by law on an individual or entity to act or refrain from acting in a certain way. Duties are often the mirror image of rights; if one person has a right, another person typically has a corresponding duty. - Positive and Negative Duties: Duties can be positive (requiring action) or negative (requiring inaction). For example, the duty to pay taxes is a positive duty, while the duty not to harm others is a negative duty. Types of Legal Duties: - Absolute vs. Relative Duties: An absolute duty is owed to the state or society as a whole (e.g., obeying the law), whereas a relative duty is owed to a specific individual or group (e.g., a contractual obligation). - Primary vs. Secondary Duties: Primary duties are the main obligations imposed by law, while secondary duties arise from the breach of primary duties (e.g., the duty to compensate for damages). Theories of Duties: - Utilitarianism: Under this theory, duties are justified by the greater good they produce. Laws should impose duties that maximize overall happiness or well- being. - Deontological Theories: These theories hold that duties are based on moral rules or principles, and that certain actions are inherently right or wrong, regardless of the consequences. Legal Person In jurisprudence, the concept of a "legal person" refers to any entity that the law recognizes as having rights and duties, akin to those of a human being. Legal personality is essential for participating in legal relations, such as owning property, entering contracts, or suing and being sued. The concept is broader than just human beings and includes entities like corporations, governments, and sometimes animals or inanimate objects, depending on the legal context. Definition: - A legal person is an entity recognized by the law as having the capacity to bear legal rights and obligations. This recognition allows the entity to engage in legal relationships, hold property, enter into contracts, and sue or be sued. - Legal personality is a legal fiction, meaning it is an artificial construct created by law to serve various practical purposes in the legal system. Types of Legal Persons: - Natural Persons: These are human beings. Every human being is a natural person, possessing legal personality from birth to death. - Artificial (or Juridical) Persons: These are non-human entities recognized by the law as having rights and duties. The most common example is a corporation, but this category also includes governments, non-profits, and sometimes religious institutions. Theories of Legal Personality: - Fiction Theory: This theory, associated with thinkers like Friedrich Carl von Savigny, posits that only human beings are real persons and that artificial persons (e.g., corporations) are legal fictions created for convenience. They have no real existence apart from the law. - Realist Theory: Proposed by jurists like Otto von Gierke, this theory argues that groups of people (e.g., corporations) have a real existence independent of the law, and the law merely recognizes this reality.  - Concession Theory: This theory suggests that the state grants legal personality to certain entities, allowing them to engage in legal activities. It emphasizes the role of the state in recognizing and regulating artificial persons. - Purpose Theory: Also known as the “Bracket Theory” by Ernst Freund, this theory views legal persons as created for specific purposes. The personality is tied to the functions the law allows them to perform. Functions and Importance of Legal Persons 1. Capacity to Hold Rights and Duties: Legal persons have the capacity to own property, enter contracts, incur debts, and be held liable for wrongdoing. This is crucial for the functioning of modern economies, where corporations play a central role. 2. Legal Standing: Legal persons can initiate legal proceedings (sue) and can also be sued. This is important for enforcing contracts, protecting rights, and resolving disputes. 3. Perpetual Existence: Unlike natural persons, artificial persons like corporations can have perpetual existence, meaning they can continue to exist indefinitely, even as individual members or shareholders come and go. 4. Limited Liability: One of the key features of legal persons, particularly corporations, is limited liability. This means that the personal assets of the shareholders or members are protected from being used to satisfy the debts of the corporation. Examples of Legal Persons 1. Corporations: These are the most common type of artificial person. They can own property, enter into contracts, and have a legal existence separate from their shareholders. 2. Governments and Public Bodies: Governments, municipal bodies, and public corporations are considered legal persons with rights and duties under the law. 3. Non-Profit Organizations: Charities, trusts, and other non-profit entities can also be recognized as legal persons, allowing them to own property, receive donations, and enter contracts. 4. Animals and Inanimate Objects: In some legal systems, animals or inanimate objects (like ships or temples) have been granted limited legal personality, particularly in specific contexts. For example, in India, the Ganges River was granted legal personality to protect its environmental rights. Ownership and Possession Ownership has been defined in a variety of ways by jurists. They all agree, however, that ownership is the most comprehensive or highest right that can be exercised over something. According to Hibbert, ownership encompasses four different types of rights: – 1. The right to utilize something 2. The right to prevent others from utilizing the item 3. The authority to destroy it Ownership is described as a “set of rights to use and enjoy the property, including the right to transmit it to others,” according to Black’s Law Dictionary. As a result, ownership is the legal acknowledgement of a claim to a specific piece of property. As a result, Hibbert proposes that no one can have absolute ownership of land since it cannot be destroyed. It is only possible to have an estate in it. An estate is a person’s legal interest in property that is measured in time and entitles the party to utilize the land indefinitely. Austin’s definition of ownership According to Austin, ownership is a more powerful right than possession, and it is an absolute right. Ownership consists of the following elements: – If we possess a piece of property, we can certainly make use of it. – We have complete freedom to dispose of the property. – That property’s right is for an indefinite period. – Available in rem against the right. According to Austin, ownership is “a right that exists against everyone subject to the law granting the ability to put things to indefinite users.” He goes on to argue that ownership is a right that is limitless in terms of duration, unfettered in terms of use, and unrestricted in terms of disposal. Being the owner also – you cannot dispose of the property in any way, it should be disposed of properly. Unlimited duration: Privy Purse Case (1970) When British India gained independence, we were given India in two parts: India and Pakistan, with 562 Siyasats belonging to the state. Indira Gandhi in 1970 gave all the properties-purse (Royal Wajeefa). Slowly, the entire zamindari idea vanished. As a result, it’s impossible to say how long the property will belong to the true owner. As per acquisition law, the property is taken in control of law and they give the compensation to the owners which end the ownership and this is always done in the public interest (sociological theory can be applied as collective social interest overrides an individual interest). Indefinite User: This implies that the owner of a thing is free to use or even misuse it in any manner he likes. The use of the word ‘indefinite’ has a special significance because the use of land by the owner can be restricted by agreements or the operation of law. Criticism Austin’s definition of ownership has been criticized by many writers. They argue that it is fallacious to think that ownership is a single right, but it is a bundle of rights including the right of use and enjoyment. Even if an owner relinquishes some of the rights that come with ownership, he retains ownership of the remainder. For example, in the event of a mortgage, the landowner retains ownership of the mortgaged property even though he has surrendered a right. Modern definition All of the preceding, i.e. indefinite use, unrestricted disposal, and limitless duration, shall be carried out in line with the law. Case laws Merry v. Green (1847) 7 M & W 623 Facts: In this case, the plaintiff purchased a table in an auction and found the purse in one of its drawers. Subsequently, he discovered that there was some money in the secret drawer belonging to the vendor but he appropriated the same. Issue  Whose purse was it? Whether the plaintiff will take it or has the right to keep it? It was believed that it was not of the plaintiff but the seller because during the process of transfer the element of intention for that purse was missing. The intention to sell that purse was not of the seller and the buying of that purse was not of the purchaser. Held The court held him guilty of larceny (theft) because the purchaser was ignorant about the existence of money and the secret drawer hence he cannot be said to have possession concerning that money and could not intend to possess the contents of the secret drawer until he found it. South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB 44 [GOLD RING CASE] Facts In this case, the plaintiff company owned a pond upon their land. The company employed the defendant to clean the pond. During the cleaning operation, the defendant found gold rings at the bottom of the pond. Held The court held that the company had the first possession of the rings by their being the owner of the pond and hence the defendant acquired no title. Bridges v. Hawkesworth (1851) 21 LJ QB 75 [BANK NOTE CASE] The doctrine of finder and keeper was brought in this case. Facts A person found a bundle of notes from the stairs of a shop and gave it to the shopkeeper and says to give it to the person to whom it belongs (all administrations were used but couldn’t found the real owner) and the shopkeeper keeps it and the person who found it filed a case on the shopkeeper. Issue  To whom the bundle of notes belongs? The doctrine of res nullis was applied- The doctrine of finder keeper the person who first found it will keep it. The County court applied this doctrine in South Stafford Shiri Water Case. This case was appealed on the divisional bench and Rod Ressel reserved the judgment and said if you appoint a carpenter to open the cupboard or box, the matter in the box will not be of the carpenter and states that it will be of the plaintiff. Here the doctrine of finder keeper will not apply. Hannah v. Peel (1945) 1 KB 509 In this case, the plaintiff was a soldier and he was asked to stay in a house and he found a brooch from there. Defendant filed a suit against the soldier but the brooch was not given to the owner as he did not take the house in physical possession and the brooch was found on the floor. In this case, two things were considered:  Corpus element was never in favor of the owner of the house. And the way the brooch was found the doctrine of res nullis was applicable. Possession Jurists have defined possession based on their personal beliefs. It is the most fundamental interaction between man and things, according to Salmond. However, Henry Maine defined it as “interaction with an object that includes the exclusion of other people from enjoying it.” A man is considered to own a thing over which he has seeming control or over which he has apparent authority to exclude others, according to Federick Pollock. Elements of possession Legal possession, according to Holland, comprises two fundamental elements: 1. Corpus 2. Animus Corpus Possessionis Corpus denotes two things: 1. a) the possessor’s physical relationship to the res or object; and 2. b) the possessor’s relationship to the rest of the world. The first point highlights that a person must have some physical touch with whatever he owns to have a reasonable expectation that others will not interfere with it, i.e. that others will not interfere with the possessor’s right to use or enjoy that object. This guarantee of non-interference can be obtained in a variety of ways: The physical power of the possessor The possessor’s physical power over the object in his possession works as an assurance that the thing will be used. It’s also a guarantee that others won’t interfere with his rights. To prevent others from interfering with his lawful ownership, the person in possession typically utilizes walls, gates, doors, and locks. Personal presence of the possessor In many cases, the possessor’s sheer physical presence is enough to keep ownership, even if he lacks the physical power to fight intervention. For example, a penny in a child’s hand suffices to indicate his ownership of the currency, although that he lacks the physical capability to do so. Secrecy It is an efficient method of avoiding external influence and keeping an object in one’s possession secure if a person maintains it in a hidden area. Wrongful ownership is rarely seen favourably in modern cultures, thus respect for a legitimate claim prevents others from interfering with the possessor’s lawful possession. The protection afforded by the possession of other things Possession of one object can sometimes lead to possession of additional items that are related to or complementary to it. As a result, owning land entitles you to own everything is on or under it. However, as in the case of South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB 44, the situation in this regard is not entirely clear. The appearance of the Animus Domini is another indicator of possession security. The claim’s visibility is another factor in the factual security of its enjoyment. As a result, publicly utilizing something implies a prima facie rightmindedness in its ownership. Animus Possidendi Possession does not imply mere juxtaposition. It must imply the possibility of bodily control, as well as a desire to exert such power. Animism is the mental component of possession. The Classical Roman jurists acknowledged two levels of authority over a possessed thing, the lesser of which were referred to as detention and the highest as possession, properly so-called. In the context of the factor of animus in legal possession, the following points should be taken into account: 1. R v. Hudson (1943) The urge to acquire does not have to be righteous, and it might even be deliberately wicked. The ownership of stolen goods by a criminal is no less genuine than the possession of stolen goods by the rightful owner. 2. The possessor must have sole ownership of the object in his possession. That is, he must intend to keep others from using and enjoying the item. However, the exclusion does not have to be complete. 3. The animus does not have to be accompanied by a claim or an intention to utilize the items as owner. In the event of a promise, the pledgee has ownership of the pledged items, even if he simply wants to keep them in custody as a security to guarantee that his obligation is paid. 4. The possessor’s animus does not have to be his or her own. A servant, agent, trustee, or bailee, for example, does not maintain goods in his possession for his personal use, but rather for the benefit of another person. 5. The animus could not be particular; instead, it could be broad. For example, a guy who has caught fish in his net has ownership of all of them, even though he has no idea how many there are. Similarly, a person is assumed to own all of the books in his library, even if he is unaware of the existence of any of them. 6. The animus may not be specific instead it may be merely general. For instance, a person who has caught fish in his net has possession of all of them although he does not know their exact numbers. Likewise, a person is deemed to have owned all the books in his library although he may not even know about the existence of some of them. It is important to note that when a person owns a receptacle, such as a box, cabinet, or envelope, he also owns the contents of that receptacle Savigny theory Savigny based his idea of possession on the Roman Jurist Paul’s text, emphasizing that possession consists of two essential elements: 1. Corpus Possession 2. Animus Domini  By corpus, he meant effective physical control over the object, i.e., immediate physical power to prevent the owner from being harmed by any outside agent.  Animus Domini (mental element of possession)-Domini is derived from the word dominium. It is the result of Roman jurisprudence that leads to the concept of ownership.  According to Savigny, Animus Domini is a mental aspect of possession, which means that the court will think that the item has a right of full ownership.  We utilize Animus Domini with the deliberate goal of holding the thing as if we are the owners, which includes excluding others’ influence.  There can be no possession without the mental aspect of animus. With animus Domini, Savigny has strengthened the right of possession.  Animus Domini, which means “you are the complete owner of the item” according to Savigny, should be held with this belief.  In terms of possession, Animus Domini is more powerful than Animus Possidendi. For example, a courier boy is in possession, even though he does not intend to keep it; nonetheless, he is in possession for the time being.  According to him, possession protection is a subset of personal protection, and just as any act of violence against a person is illegal, so is any act that disrupts possession through deception.  Criticism 1. Savigny was incorrect in his assumption that possession cannot be obtained without corpus and animus, and that possession is lost when one or both of these parts are gone. 2. In practice, we find that possession persists even if one of the parts is gone, and in some cases even when both elements are missing. 3. Savigny has