CLAT PG Exam > CLAT PG Notes > Jurisprudence > Cheat Sheet: Concept of Law
Cheat Sheet: Concept of Law
1. Nature and Definition of Law
1.1 Definitions of Law
| Jurist | Definition |
|---|---|
| Austin | Law is a command of the sovereign backed by sanction |
| Salmond | Law is the body of principles recognized and applied by the State in administration of justice |
| Holland | Law is a general rule of external human action enforced by a sovereign political authority |
| Kelsen | Law is a coercive order of norms derived from the basic norm (Grundnorm) |
| Hart | Law is a system of primary and secondary rules; union of primary rules of obligation with secondary rules of recognition, change, and adjudication |
| Roscoe Pound | Law is social engineering; a tool for ordering human conduct and satisfying social wants |
| Dworkin | Law consists of rules, principles, and policies; interpretive concept requiring moral judgment |
1.2 Essential Elements of Law
- Generality: applicable to a class of persons or situations
- Normativity: prescriptive standards of conduct
- Authority: emanates from recognized source
- Sanction: consequences for non-compliance
- Enforcement: machinery for implementation
- Recognition: acknowledged by the legal system
2. Schools of Jurisprudence
2.1 Natural Law School
| Aspect | Description |
|---|---|
| Basic Premise | Universal moral principles inherent in nature; higher law above positive law |
| Aquinas | Four types of law: Eternal Law, Divine Law, Natural Law, Human Law; unjust law is no law (lex iniusta non est lex) |
| Grotius | Father of International Law; natural law based on reason and social nature of man |
| Finnis | Seven basic goods: life, knowledge, play, aesthetic experience, sociability, practical reasonableness, religion |
| Fuller | Inner morality of law; eight principles of legality (generality, promulgation, prospectivity, clarity, non-contradiction, possibility of compliance, constancy, congruence) |
2.2 Analytical/Positivist School
2.2.1 Austin's Positivism
- Law is command of sovereign backed by sanction
- Sovereign: supreme authority habitually obeyed, not in habit of obeying others
- Command: expression of desire/wish with sanction for non-compliance
- Sanction: evil consequence for disobedience
- Separation of law and morality
- Criticism: cannot explain customary law, international law, constitutional law
2.2.2 Kelsen's Pure Theory
- Law as a normative science independent of morality and sociology
- Grundnorm (Basic Norm): ultimate foundation of legal system; hypothetical; presupposed
- Hierarchy of norms: each norm derives validity from higher norm
- Sanction: essential element of legal norm
- Ought (Sollen) vs. Is (Sein): separation of norm and fact
2.2.3 Hart's Legal Positivism
- Primary Rules: rules of obligation (impose duties)
- Secondary Rules: rules about rules (confer powers)
- Rule of Recognition: identifies valid law; master rule
- Rule of Change: authorizes creation/modification of primary rules
- Rule of Adjudication: empowers officials to determine rule violations
- Internal and external aspects of rules
- Open texture of law: core and penumbra of meaning
- Minimum content of natural law: basic survival requirements
2.3 Historical School
| Jurist | Contribution |
|---|---|
| Savigny | Law is product of Volkgeist (national spirit/consciousness); grows with people; silent custom, not legislation; organic development |
| Maine | Evolution from status to contract; progressive societies move from collective to individual rights; Ancient Law (1861) |
| Puchta | Elaborated Savigny's theory; law develops through three stages: divine law, customary law, legislation |
2.4 Sociological School
2.4.1 Roscoe Pound - Sociological Jurisprudence
- Law as social engineering: balancing competing interests
- Three types of interests: individual, public, social
- Jural postulates: fundamental assumptions of legal system for ordering society
- Law in books vs. law in action
- Purpose: maximum satisfaction of wants with minimum friction
2.4.2 Eugen Ehrlich - Living Law
- Living law: actual practices and customs of people
- Center of gravity of legal development lies in society, not legislation/judicial decisions
- Distinction between norms for decision and living law
2.4.3 Durkheim
- Law reflects social solidarity
- Repressive law in mechanical solidarity societies
- Restitutive law in organic solidarity societies
2.5 Realist School
2.5.1 American Legal Realism
| Jurist | View |
|---|---|
| Holmes | Law is prediction of what courts will do; bad man theory; life of law is experience, not logic |
| Jerome Frank | Rule skepticism; judicial decisions depend on facts, not rules; uncertainty in fact-finding |
| Llewellyn | Law is what officials do about disputes; focus on behavior of judges |
2.5.2 Scandinavian Legal Realism
- Axel Hägerström: rejection of metaphysics; law based on psychological facts
- Alf Ross: law is prediction of judicial behavior; legal concepts lack ontological reality
- Focus on efficacy and observability
2.6 Marxist Theory of Law
- Law is instrument of class domination
- Superstructure determined by economic base
- Law serves interests of ruling class
- Law will wither away in communist society
- Pashukanis: commodity exchange theory of law
3. Sources of Law
3.1 Classification of Sources
| Type | Description |
|---|---|
| Material Sources | Factors influencing law content (morality, religion, social customs, economic conditions) |
| Formal Sources | Methods by which law receives force and validity (legislation, precedent, custom, agreement) |
| Historical Sources | Documents and events providing law content (Roman Law, historical texts) |
| Legal Sources | Sources creating legal obligations recognized by courts |
3.2 Formal Sources - Detailed
3.2.1 Legislation
- Supreme legislation: by sovereign authority (Parliament)
- Subordinate legislation: by delegated authority (rules, regulations, bye-laws)
- Autonomous legislation: by non-sovereign bodies for members (university statutes)
- Colonial legislation: by dependencies within imperial framework
- Executive legislation: by executive under delegated powers
- Municipal legislation: by local authorities
3.2.2 Precedent/Case Law
- Ratio decidendi: legal principle forming binding precedent
- Obiter dicta: observations not forming binding precedent
- Stare decisis: doctrine of binding precedent
- Distinguishing: differentiating case on facts
- Overruling: higher court sets aside earlier decision
- Reversal: higher court reverses lower court in same case
- Original precedent: decides new point of law
- Declaratory precedent: applies existing law
3.2.3 Custom
- Essential features: antiquity, continuity, certainty, reasonableness, consistency with law
- Legal custom: recognized by courts as law
- Conventional custom: binds parties by agreement
- Local custom: operates in specific locality
- General custom: operates throughout country
- Tests for validity: not contrary to statute, morality, public policy
3.2.4 Agreements/Contracts
- Private agreements creating legal obligations
- International treaties as source in international law
- Limited to parties involved
3.3 Secondary Sources
- Equity: principles of fairness supplementing common law
- Justice: natural sense of right and wrong
- Professional opinion: expert legal opinions
- Scientific commentaries: legal scholarship and doctrine
- Foreign law: persuasive value in interpretation
4. Administration of Justice
4.1 Theories of Punishment
| Theory | Purpose |
|---|---|
| Retributive | Punishment as desert for wrongdoing; eye for an eye; backward-looking; Kant, Hegel |
| Deterrent | Prevent future crimes through fear; individual and general deterrence; Bentham |
| Preventive | Disable offender from committing crimes; incapacitation; protection of society |
| Reformative | Reform and rehabilitate offender; forward-looking; humanitarian approach |
| Compensatory | Compensation to victim; restorative justice; restitution |
4.2 Organs of Administration of Justice
4.2.1 Legislature
- Creates substantive and procedural laws
- Defines rights, duties, crimes, and remedies
- Establishes framework for justice delivery
4.2.2 Executive
- Enforces laws through police, administrative agencies
- Investigates offenses and prosecutes offenders
- Implements judicial decisions
4.2.3 Judiciary
- Interprets and applies law to specific cases
- Adjudicates disputes between parties
- Ensures justice through impartial decision-making
- Develops law through precedents
- Protects fundamental rights
4.3 Principles of Natural Justice
| Principle | Meaning |
|---|---|
| Audi alteram partem | Hear the other side; right to fair hearing; notice and opportunity to be heard |
| Nemo judex in causa sua | No one should be judge in own cause; rule against bias; impartiality requirement |
| Reasoned decision | Decision must be supported by reasons; promotes transparency and accountability |
5. Rights and Duties
5.1 Definition and Nature of Rights
| Aspect | Description |
|---|---|
| Salmond | Interest recognized and protected by law; every legal right correlates with legal duty |
| Holland | Capacity residing in one person to control actions of another with assent and assistance of State |
| Austin | Faculty given by law to affect juridical relations |
| Hohfeld | Four jural relations: right-duty, privilege-no-right, power-liability, immunity-disability |
5.2 Classification of Rights
5.2.1 Legal Rights vs. Moral Rights
- Legal rights: recognized and enforced by law
- Moral rights: based on moral principles, not legally enforceable
5.2.2 Perfect Rights vs. Imperfect Rights
- Perfect rights: enforceable by law; corresponding duty
- Imperfect rights: not legally enforceable; moral obligation only
5.2.3 Positive Rights vs. Negative Rights
- Positive rights: right to affirmative action by others
- Negative rights: right to non-interference by others
5.2.4 Rights in rem vs. Rights in personam
- Rights in rem: available against entire world; proprietary rights
- Rights in personam: available against specific person; contractual rights
5.2.5 Proprietary Rights vs. Personal Rights
- Proprietary rights: relate to ownership of property; transferable; heritable
- Personal rights: attached to person; not transferable
5.2.6 Primary Rights vs. Secondary Rights
- Primary rights: independent existence (ownership rights)
- Secondary rights: arise from violation of primary rights (right to damages)
5.3 Hohfeld's Analysis of Jural Relations
| Jural Relation | Correlative |
|---|---|
| Right | Duty (person A has right that B perform act) |
| Privilege/Liberty | No-right (A free to act; B has no right to prevent) |
| Power | Liability (A can alter B's legal relations) |
| Immunity | Disability (B cannot alter A's legal relations) |
5.4 Theories of Legal Rights
5.4.1 Will Theory (Savigny, Kant)
- Legal right is legally protected will/choice
- Right-holder has power to enforce or waive right
- Criticism: cannot explain rights of children, incompetent persons
5.4.2 Interest Theory (Ihering, Salmond)
- Legal right is legally protected interest
- Law protects individual interests recognized as valuable
- Right consists of substance (interest) and form (protection)
5.5 Legal Duties
| Type | Description |
|---|---|
| Positive Duty | Duty to perform specific act (duty to pay debt) |
| Negative Duty | Duty to abstain from act (duty not to trespass) |
| Absolute Duty | Duty not corresponding to any right (duty to pay tax) |
| Relative Duty | Duty corresponding to another's right (contractual duty) |
| Primary Duty | Duty existing independently (duty to respect property) |
| Secondary Duty | Duty arising from breach of primary duty (duty to pay damages) |
6. Ownership and Possession
6.1 Ownership
6.1.1 Definition
| Jurist | Definition |
|---|---|
| Salmond | Relation between person and object forming subject-matter of ownership; residuary rights over object |
| Austin | Indefinite right of user over determinate thing |
| Holland | Plenary control over object |
6.1.2 Kinds of Ownership
- Corporeal ownership: ownership of tangible objects
- Incorporeal ownership: ownership of intangible rights (patents, copyrights)
- Sole ownership: vested in single person exclusively
- Co-ownership: vested in multiple persons simultaneously
- Trust ownership: trustee holds legal ownership for beneficiary's benefit
- Legal ownership: recognized by law
- Equitable ownership: recognized by equity
- Vested ownership: immediate right of enjoyment
- Contingent ownership: dependent on uncertain event
6.2 Possession
6.2.1 Definition and Elements
- Salmond: continuing exercise of claim to exclusive use of object
- Two elements: corpus possessionis (physical control) and animus possidendi (intention to possess)
- Possession is nine-tenths of law (maxim)
6.2.2 Kinds of Possession
| Type | Description |
|---|---|
| Corporeal Possession | Possession of tangible objects |
| Incorporeal Possession | Possession of intangible rights |
| Mediate Possession | Possession through another (agent, servant) |
| Immediate Possession | Direct physical possession |
| Constructive Possession | Legal possession without actual physical control |
| Adverse Possession | Possession hostile to true owner's title |
6.2.3 Theories of Possession
- Savigny: emphasized animus (intention); both corpus and animus essential
- Ihering: emphasized corpus (physical control); animus presumed from corpus
- Pollock and Wright: synthesis approach; both elements required
6.3 Distinction Between Ownership and Possession
| Ownership | Possession |
|---|---|
| Relationship between person and right | Relationship between person and object |
| Abstract right | Matter of fact |
| Continues indefinitely | Temporary |
| Cannot be transferred without intention | Can be transferred without intention |
| Owner may not have possession | Possessor may not be owner |
7. Personality
7.1 Legal Personality
| Aspect | Description |
|---|---|
| Definition | Entity capable of bearing legal rights and duties; subject of legal relations |
| Salmond | Person is any being whom law regards as capable of rights and duties |
| Natural Person | Human beings; personality begins at birth, ends at death |
| Artificial/Juristic Person | Entities other than human beings recognized as legal persons (corporations, companies, institutions) |
7.2 Theories of Corporate Personality
7.2.1 Fiction Theory (Savigny)
- Corporation is artificial creation of law
- Exists only in legal contemplation
- No real existence; mere fiction
- Personality conferred by State
7.2.2 Concession Theory
- Corporate personality granted by State concession
- State recognition necessary for existence
- Similar to fiction theory
7.2.3 Realist Theory (Gierke)
- Corporation has real existence independent of State recognition
- Organic entity with own will
- Group personality distinct from members
7.2.4 Symbolist Theory (Ihering)
- Corporation is symbol for rights of members
- Property held in common symbolically attributed to corporation
- Legal device for convenience
7.2.5 Bracket/Aggregate Theory (Brinz)
- Corporation is collective name for members
- No separate existence from members
- Property belongs to members collectively
7.3 Capacity and Status
7.3.1 Legal Capacity
- Ability to possess legal rights and perform legal acts
- Distinguished from physical capacity
- May be limited by age, mental condition, legal status
7.3.2 Status
- Legal position of person in society
- Determines rights, duties, capacities, disabilities
- Maine: movement from status to contract in progressive societies
8. Liability
8.1 Nature of Liability
| Aspect | Description |
|---|---|
| Definition | Obligation to bear legal consequences of wrongful act; bond of necessity existing between wrongdoer and remedy |
| Salmond | Liability is incidence upon person of remedial right vested in another |
| Austin | State of being bound to discharge obligation or suffer consequence |
8.2 Kinds of Liability
8.2.1 Civil Liability vs. Criminal Liability
- Civil liability: breach of civil duty; remedy to injured party (damages, injunction)
- Criminal liability: offense against State; punishment (fine, imprisonment)
8.2.2 Strict Liability vs. Fault-based Liability
- Strict liability: liability without proof of fault (Rylands v. Fletcher; product liability)
- Fault-based liability: liability based on negligence or intention
8.2.3 Vicarious Liability
- Liability of one person for act of another
- Master-servant relationship (respondeat superior)
- Principal-agent relationship
- Partnership liability
8.2.4 Absolute Liability
- No exceptions or defenses available
- MC Mehta v. Union of India (Oleum gas leak case)
- Applicable to hazardous/inherently dangerous activities
8.3 Essentials of Liability
- Wrongful act or omission (actus reus)
- Mental element (mens rea) - in most cases
- Legal injury (damnum cum injuria)
- Causal connection between act and injury
- Absence of valid defense
8.4 Theories of Liability
| Theory | Basis |
|---|---|
| Subjective Theory | Liability based on mental state; requires intention or negligence; no liability without fault |
| Objective Theory | Liability based on act/omission regardless of mental state; strict liability approach |
| Pigeon-hole Theory (Salmond) | Liability exists only for recognized torts; closed list approach |
| Principle-based Theory (Winfield) | All injuries actionable unless justified; open-ended approach |
9. Law and Morality
9.1 Relationship Between Law and Morality
9.1.1 Points of Similarity
- Both regulate human conduct
- Both seek to establish social order
- Both distinguish right from wrong
- Both evolve with society
9.1.2 Points of Distinction
| Law | Morality |
|---|---|
| Enforced by State machinery | Enforced by social pressure, conscience |
| Definite and certain | Often vague and uncertain |
| Universal application within territory | Varies between individuals, communities |
| Concerns external conduct | Concerns internal motives and thoughts |
| Minimum standards | Higher standards of conduct |
| Changes through formal process | Changes through social evolution |
9.2 Views on Law-Morality Relationship
9.2.1 Positivist View (Austin, Kelsen)
- Law and morality are separate
- Validity of law independent of moral content
- Immoral law is still valid law
9.2.2 Natural Law View (Aquinas, Fuller, Finnis)
- Law and morality inherently connected
- Immoral law lacks validity (lex iniusta non est lex)
- Law must conform to moral principles
9.2.3 Hart's View
- Separation of law and morality as conceptual matter
- Recognition of minimum natural law content
- Morality influences law but does not determine validity
9.2.4 Dworkin's View
- Law contains moral principles
- Judges use moral reasoning in hard cases
- Law as interpretive concept requiring moral judgment
9.3 Hart-Fuller Debate
| Hart's Position | Fuller's Position |
|---|---|
| Separation thesis maintained | Inner morality of law necessary |
| Nazi law was valid but evil law | Nazi law failed inner morality requirements |
| Rule of recognition determines validity | Procedural natural law essential |
| Clear separation aids legal certainty | Law must satisfy legality principles |
10. Law and Justice
10.1 Concepts of Justice
10.1.1 Legal Justice
- Justice according to law
- Application of established legal rules
- Formal equality before law
10.1.2 Moral/Natural Justice
- Justice based on moral principles
- Substantive fairness
- Independent of positive law
10.1.3 Social Justice
- Fair distribution of resources and opportunities
- Elimination of discrimination and inequality
- Welfare-oriented approach
10.2 Theories of Justice
10.2.1 Aristotle's Theory
- Distributive justice: fair distribution according to merit
- Corrective/Remedial justice: restoration of equality through compensation
- Procedural justice: fair procedures in administration
10.2.2 Utilitarian Theory (Bentham, Mill)
- Justice as maximization of happiness/utility
- Greatest happiness of greatest number
- Consequentialist approach
10.2.3 Rawls' Theory of Justice
- Justice as fairness; social contract approach
- Original position: choice behind veil of ignorance
- Two principles: (1) Equal basic liberties (2) Difference principle (inequalities benefit least advantaged)
- Lexical priority of liberty over equality
10.2.4 Nozick's Entitlement Theory
- Justice in holdings based on acquisition and transfer
- Principles: just acquisition, just transfer, rectification of injustice
- Libertarian approach; minimal state intervention
10.3 Relationship Between Law and Justice
- Law aims to achieve justice but may fail
- Unjust laws possible; gap between law as is and as ought to be
- Legal justice may differ from moral justice
- Courts interpret law to promote justice (equity, principles of natural justice)
- Legislative reform addresses injustice in existing law
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