3 Define Right and discuss the essential elements of

legal right. OR
What is a Legal Right? Discuss the characteristics of a
legal right.
INTRODUCTION: Right generally means an interest or
facility or a privilege or immunity or a freedom. In this way
right for the purpose of jurisprudence is called legal right.
Austin in his theory has separated the subject matter of
jurisprudence from morality or materiality. He gave the
concept of positive law. So here also right means positive
law right only, which is term of legal right. Legal right is
recognised by law. It is different from moral right. Moral
right if violated is called moral wrong. The violatin of
natural right is called natural wrong. But these wrongs are
not remedial under law while if a legal right is violated then
it will be legal wrong which is remedial under law. The
different jurists have defined legal right in different ways:-
According to Austin : Right is a faculty which resides in a
determinate party or parties by virtue of a given law and
which avails against a party or parties other than the party
or parties in whom it resides. According to Salmond :-
Right is an interest recognised and protected by the rule of
right. Here rule of right means rule of law or law of
country. When an interest of a person is protected by the
rule of law then it is called right. Salmond definition
involves two points, firstly that right is an interest and
secondly it is protected by rule of right. It means that it
relates to his (person) interest i.e., life liberty, heath and
reputation etc. Grey has criticised the interest theory
propounded by Salmond, Ihering and Heck and he has
supported the view that right is not an interest but that
means by which the interest is secured. According to
Holland, right is as a capacity residing in one man of
controlling, with the assent and assistance of the state the
action of others.
According to Paton : That legal right is that it should be
enforceable by the legal process of the state. He however
says that there are three exceptions to this rule :-
1. It is not necessary that the state should always
necessarily enforce all the legal rights.
2. There are certain rights which recognised by law but
not enforced by it for example : In a time barred debt, the
right of the creditor to recover the debt is an imperfect
right
3. There are certain laws which do not confer right of
enforcement to the courts, for example : International
Court of Justice has no power to compel enforcement of
its decrees under International Law.
THEORIS OF RIGHT :- There are two theories of right :
1. WILL THEORY : This theory is based upon the will of
human beings. It says that a right reflects the inner will of
a human being. Austin, Holland, Halmes and Dov
recognised this theory of right. According to them a
person wants o remain in the world freely and according to
his own choice because a man is born free.
2. Interest Theory:- This theory says that interest is the
base of the right. It is only interest which is recognised by
law. This theory reflects the external nature of the human
beings. Supporter of this theory say that there are many
interests in the world. These interest which are protected
and recognised by law are called right.
 ELEMENTS OF LEGAL RIGHT:- Following are the
elements of Rights :-
1. Subject: here means a person who has right. So
there must be a person for rights
2. Act of Forbearance :- Right means some standard of
action permitted by law. In a right either an act is done or
an act is forbidden. This is also called as content of right.
3. Object:- There must be a object upon which the right
is exercised. Mainly there are three essential elements of
right e.g. Lives in a house. Here : (i) A has the right to live
in the house. (ii) A is subject, house is object and (iii) His
living in the house is act content. But some writers give
some more elements of right.
4. Correlative duty: For right there must be a correlative
duty. In the above example A has the right to live in the
house but other persons have correlative duty not to
disturb him. Almost all jurists agree on the point because
one cannot exists without the other. Here Austin is not
agree to this He says that the duty may be divided into two
kinds i.e. (1) Absolute and (ii) Relative.
5. Title: Salmond gives one more element of rights in the
form of title. He says that a right has got also a title. Title
may be in the form of the owner or co-owner or mortgager
or leaser or buyer etc.
ILLUSTRATION: If, A buys a piece of land from B. A is
the subject or owner of the right so required. The person
bound by the co-relative duty is persons in general
because a right of this kind avails against the world at
large. The right consists in non-interference with the
purchasers exclusive use of the land.
Explain the phrase, Law is social Engineering as
propounded by Roscoe Pound.
INTRODUCTION:- Roscoe Pound is considered to be
the, American Leader in the field of Sociological
jurisprudence. He comes from Harvard Law School and
had a great academic favour. According to him, the end of
law should be to satisfy a maximum of wants with
minimum of friction. He defined law as containing the
rules, principles, conceptions and standards of conduct
and decision as also the precepts and doctrines of
professional rules of art. He considers law as a means of a
developed technique and treats jurisprudence as social
engineering.
The main propositions of Roscoe Pound theory of Social
Engineering are as under:-
i) POUND CONCENTRATES ON THE FUNCTIONAL
ASPECT OF LAW:- Pound concentrates more on the
functional aspect of law, that is why some writers name
has approach as functional school the law is an ordering
of conduct so as to make the goods of existence and the
means of satisfying claims go round as far as possible
with the least friction and waste.
ii) THE TASK OF LAW IS SOCIAL ENGINEERING:-
He says, for the purpose of understanding of law of today.
I am content with a picture of satisfying as much of the
whole body of human wants as we may with the least
sacrifice. I am content to think of law as a social institution
to satisfy, social wants, the claims and demands involved
in the existence of civilized society.
iii) SOCIAL ENGNEERING MEANS A BALANCE
BETWEEN HE COMPETING INTEREST IN SOCIETY :-
He lays down a method which a jurist should follow for
social engineering. He should study the actual social
effects of legal institution and legal doctrines, study the
means of making legal rules effective sociological study in
preparation of law-making, study of judicial method, a
sociological legal history and the importance of reasonable
and just solutions of individual cases. He himself
enumerates the various interests which are to be
protected by the law. He classifies them under three
heads:
i. Private Interests (ii) Public Interests (iii) Social
Interests.
PRIVATE INERESTS:- Such as interest of physical
integrity, reputation, Freedom of volition and freedom of
conscience. They Are safe-
guarded by law of crimes, contracts.
PUBLIC INTERESTS:- Main public interests are
preservation of the State, State as a guardian of social
interests such as Administ-Ration of trusts, charitable
endowments, protection of Natural environment, territorial
waters, sea-shores, Regulation of
public employment and so on.
SOCIAL INTERESTS:- Preservation of peace, general
health, preserving of Social institutions such as religion,
political and Economic institutions, general morals,
promotes Human personality, cultural and economic life.
Pound tackled he problem of interests in term as of
balancing of individual and social interests. It is through
the instrumentality of law that these interest are sought to
be balanced. Justice Cardozo remarked that, Pound
attempted to emphasize the need for judicial awareness of
the social values and interests. Roscoe Pound regarded
law as a basic tool of social engineering. How in India the
society and law are acting and reacting upon each other
can be adjudged from the following enactments passed
after India became Independent:-
a. The special Marriage Act 1954 2. The Hindu Marriage
Act 1955 3. The Hindu succession Act 1956 4. The Hindu
Minority and guardianship Act 1956 5. The Hindu
Adoptions and Maintenance Act 1956 6. The Dowry
Prohibition Act 1961 7. Child Marriage Restraint
(Amendment Act) 1978 8. The Consumer Protection Act
1986 9. The S.C & S.T.(Prevention of Atrocities) Act 1989
10. Commission of Sati (Prevention) Act 1987 11. Bonded
labour(Abolition) Act- 1976
INTERESTS AS THE MAIN SUBJECT-MATTER OF
LAW:- Pounds theory is that interests are the main subject
matter of law and the task of law is the satisfaction of
human wants and desires. It is the duty of law to make a
valuation interests in other words to make a selection of
socially most valuable objectives and to secure them.
To concluding the theory, Pound says that the
aim of Social Engineering is to build an efficient structure
of the society as far as possible which involves he
balancing of competing interests.
CRITICISM AGAINST POUNDS THEORY :-
i. Engineering not a happy word : It suggests a
mechanical application of the principles to social needs
but really the word engineering is used by Pound
metaphorically to indicate the problems which the law has
to face.
ii. Classification of interests not useful: Freidmann
doubts the value of classification of interests and the value
of such classification.
iii. Ihering & Bentham concludes the theory of Pounds
that, such classifications greatly helps to make legislature
as well as the teacher and practitioner of law conscious of
the principles and values involved in any particular issue.
It is an important aid in the linking of principle and
practice.
POUNDS CONTRIBUTION
Social Engineering stands on a practical and firm ground.
He points out the responsibility of the lawyer, the judge
and the jurists and gives a comprehensive picture of the
scope and field of the subject.

Define Precedents? Lay down the importance of the

precedents as the source of law. In what sense they are
binding? Do the judges make law?
INRODUCTION:- Precedents literally means previous
judicial decision. The decisions of the higher courts are
binding on the lower courts. The binding force of decision
is called precedent. The precedents play an important role
in the development of law. It is the second important
source of law. First source is customs and the third source
is legislation. Sometimes act may be insufficient for the
case or there may be an vacuum or any thing missing in
the act. Under these circumstances the court can apply
their own mind. These independent decisions becomes
precedents which are followed later on by the same &
Lower courts. This method of decision is also called as
Judge made law. The English and American law is mostly
based upon the precedents. In India Art.141 of Indian
Constitution says that the decision of the higher courts
shall be binding upon the lower courts.
DEFINATION OF PRECEDENTS:- Precedents are a
decision of a court which is also called judicial decision.
According to the Oxford University, Precedents means the
previous decision case given by a court according to
rules. Various writers have given the definition of
precedents is conduct of court adopted by the lower court
in similar facts and in similar circumstances in a case.
Particularly the precedents means the Judge made law.
When the court gives its own ideas for creating new rules.
England, America and China also follow the previous
decisions as the source of law but the continent countries
like Germany, Japan does not accept the previous
decisions as the source of law. The method of taking
precedents as source of law is called inductive method,
while the method of continental countries not following
previous decisions of the court is called deductive method.
MERITS OF PRECEDENTS:- Precedents are a very
important source of Law. They play an important role in the
development of law, so they have certain advantages as:
1. Precedents show true respect to the ancestors means
by adopting the previous decision of the higher court to
decide the present case, it is a kind of respect to elders.
2. Precedents are suitable to the present situation
means after some times the circumstances of the society
can change with the change of time so the precedents
they are more suitable and fit for the present time and
circumstances.
3. Precedents are based on customs means the law in
the form of act which based upon customs. Court
interprets the customs while interpreting any act.
4. Precedents are convenient and easy to follow
because they are available in the form of written reports.
5. Precedents bring certainty in law, once decision is
given in a case there would be no need to repeat all
precedents in any other case if it resembles to the former
case.
6. Precedents are the best guide for the Judges: They
play an important role in the judiciary because the
precedents are the guide lines for the courts.
DEMERITS OF THE PROCEDENTS:- lthough the
demerits are very few but these are as under :-
i) The decisions are given by the human beings while
performing the duties as judge, his decision may not be
suitable to all persons who have different mind and
thinking. This will be a bad effect on Judiciary.
ii) Sometimes the decisions of the higher courts
contradictory to each other. It becomes harder to another
judge to apply the same verdicts as a precedents of higher
court
iii) Sometimes the higher courts give a wrong decision
and over pass the important factors of the case due to one
reason or the others.
PRECEDENTS ARE BINDING:- The precedents is an
important source of law. It is available in the form of
judicial decisions. Now the question arises that in what
sense and when the precedents are binding o follow. For
the answer of this query different views have been given
by the various writers and jurists. No doubts the
precedents is not binding like warrant issued by a court of
law. It means precedent can be over ruled if they are not
right or appropriable to the case to be decided but warrant
has to be followed by all to whom it is applicable.
It is not necessary that in the case which is to be decided
the circumstances and the facts must be the same as in
resembling case. If the facts and the circumstances of the
cases are materially similar then the precedents or
previous judicial decision is applied in the later cases and
are applied only in the form of ratio decidendi of previous
cases. There are two parts of it :-
i) Ratio-decidendi:- means reasons which leads the
court to reach the decision. It is the main part of the case
in judgement and the ratio decidendi of the decision is
binding in the form of precedent.
ii) Obits decidendi:-It is also a part of the decision which
is irrelevant to the facts and circumstances of the case.
The judge takes into consideration the social conditions,
morality, principal of natural justice that is why the Judges
play an important role in the development of legal system.
Define Ownership. Discuss the various kinds of
ownership. Distinguish between possession and
ownership.
INTRODUCTION: Ownership is linked with possession.
Possession is the first stage of ownership. It means for
ownership possession is necessary. Possession and
ownership both are two sides of the same coin and one
cannot exist without the other.
Ownership gives the full right over the thing. Ownership is
ultimate and final right for disposing the property. It means
to transfer that property in any way. Ownership is a
relation ship between the person and the thing. For
ownership there must be a thing and the owner of thing.
The concept of ownership was absent in the ancient
society. There was also no concept of possession too.
Slowly and slowly as the society developed the concept
of possession also developed. The idea of ownership
came into existence. So this way after the progress of the
concept of ownership the person became the full owner of
his property.
DEFIN ITION :- Before to define the ownership we have
to discuss the various kinds of law :-
Roman Law :- As evident from history that the Roman Law
was the first law in the world. It is considered the ancient
law. All concepts of law begin from the period of Roman
society. Under the Roman Law the concept of ownership is
defined in the form of dominion that means to have the
right control of a thing. The concept of ownership
developed in the form of a right over the thing. Dominion
is distinguished from possession. Possession means to
have possession over a thing but dominos means to have
a right over the thing.
HINDU LAW :- Hindu Law is also considered as the most
ancient law in the world. In Hindu law the concept of
ownership also has been discussed. In Hindu Law
ownership is said a , According to Hindu Law ownership
means a relationship between person and a thing. Person
is called owner and a thing is called property. Means a
property which is in the control of a person is his property.
VIEWS OF MODERN & WESTERN JURISTS
The western jurists like Austin, Holland and Salmond
defined the concept of ownership.
Austin :- According to him ownership is the relationship
which exists in between the person and the thing. This
definition resembles with the definition under Hindu Law.
Austin says that in ownership a person has the following
relations with the thing.
1.Indefinite Use :- It means to use that thing in any way
whether to use it for agriculture or for industry, residence
but there is a restriction that one cannot use ones
property in such a way which destructive in the living of
others.
2.Un-restricted power of dispose:- Means to transfer that
thing or property according to his choice. He can sale or
to mortgage even to give on lease or gift to anybody. But
under art.19(2) of the Constitution reasonable restrictions
can be imposed by the Govt., in the interest of public
policies.
3.Un-limited duration of time :- means the right of transfer
of his property will remain always in the name of owner.
 After his death it will go to his heirs so there is no time
limits.
4.Domination :- It means to have control over the thing.
For this purpose both elements of possession corpus and
animus should be there. If the conditions are there
between person and the thing and then the person is
owner of that thing.
According to Holland: He defined the ownership as a
plenary control of a person over a thing. The definition also
contains the following conditions :-
1.Possession 2. Enjoyment 3. Disposal.
According to Salmond :- Salmond defines ownership as a
relationship between person and the right. Right means to
have a thing under possession. Thing always represents
physical objects. But right always represents a thing which
is not in physical existence like copy right and allowances
are always thing which are called property. And which are
not in physical existence.
Salmond has included all those right which are property in
the concept of ownership. In view of the above it is learnt
that Austin and Holland definitions are not complete. But
salmond is completely perfect in his definition.
KINDS OF OWNERSHIP
There are various kinds of ownership which are as
under :-
1. Corporal and Incorporeal ownership: Corporeal and
incorporeal ownership also called material and immaterial
ownership. Corporeal ownership is the ownership of a
material object and incorporeal ownership is the
ownership of a right. Ownership of a house, a table or a
machine is corporeal ownership. Ownership of copyright a
patent or a trade mark is incorporeal ownership.
2. Sole and co-ownership:- The general principal of
ownership is that vested in one person only. But some
times it vested in many persons in other words two or
more person have the right of ownership. If only one
person have right of ownership that known as sole
ownership and where two or more persons have the right
of ownership then know as co-ownership.
3. Vested and contingent ownership:- Ownership is either
vested or contingent it is vested ownership when the title
of the owner is already perfect. It is contingent ownership
when the title of the ownership is yet imperfect.
4. Absolute and Limited ownership:- means owner is one
in whom are vested all the rights over a thing to the
exclusion of all or when a person has an absolute right
over his property known as absolute ownership.
When there are limitations on the user duration or disposal
of rights of ownership the ownership is limited ownership.
5. Legal and Equitable ownership:- Legal ownership is that
which has its origin in the rules of common law. Equitable
ownership is that which proceeds from the rules of equity.
Legal right may be enforced in rem but equitable rights are
enforced in personam.
CONCLUSION
The ownership is a relationship between person and the
right. These rights include the right of possession
enjoyment and disposal of the property. If all conditions
are there then it is called Ownership.
 MODES OF ACQUISITION OF OWNERSHIP

Broadly speaking there are two modes of acquiring ownership, namely, (1) Original, and (2)
Derivative.

1. Original Acquisition of ownership takes place when ownership is acquired by some

personal act on the part of the acquirer. It may by three ways:

Absolute When a thing is acquired res nullius, i.e. , which has no previous owner.

This has been called Parigrah by Manu who stated that the first striker of an arrow to a
prey whether a bird or wild animal, becomes its owner.

Original acquisition of ownership may also be by specification which means a person

by working up on material belonging to another makes a new thing. For example, if a
sculptor makes a statue from the clay belonging to the another, he becomes the original
owner of that statue.

Extinctive Acquisition of ownership , that is when a person by some act on his part
extinguishes the ownership of the previous owner and acquires its ownership himself, it
is called extinctive acquisition. For example, acquisition of ownership by prescription or
adverse possession for a prescribed period which is 12 years in India.

Jurists have defined ownership in different ways. All of them accept the right of ownership as the complete
or supreme right that can be exercised over anything. Thus, according to Hibbert ownership includes four
kinds of rights within itself.
Right to use a thing
Right to exclude others from using the thing
Disposing of the thing
Right to destroy it.
Austins definition
Austin while defining ownership has focused on the three main attributes of ownership, namely, indefinite
user, unrestricted disposition and unlimited duration.
Indefinite User
Unrestricted Disposition
Unlimited Duration
The abolition of Zamindari system India , the abolition of privy purses, nationalization of Bank etc. are
some example of the fact that the ownership can be cut short by the state for public purpose and its
duration is not unlimited.
Austins definition has been followed by Holland. He defines ownership as plenary control over an object.
According to him an owner has three rights on the subject owned
Possession
 Enjoyment
Disposition
Planetary control over an object implies complete control unrestricted by any law or fact. Thus, the
criticism levelled against Austins definition would apply to that given by Holland in so far as the implication
of the term plenary control goes.
Salmonds Definition:
According to the Salmond ownership vests in the complex of rights which he exercises to the exclusive of
all others. For Salmond what constitute ownership is a bundle of rights which in here resides in an
individual. Salmonds definition thus point out two attributes of ownership:
Ownership is a relation between a person and right that is vested in him
Ownership is incorporeal body or form

MODERN LAW AND OWNERSHIP

Under modern law there are the following modes of acquiring ownership which may be broadly classed
under two heads,viz,.
Original mode
Derivative mode
The original mode is the result of some independence personal act of the acquire himself. The mode of
acquisition may be three kinds
Absolute when a ownership is acquired by over previously ownerless object
Extinctive, which is where there is extinctive of previous ownership by an
independence adverse act on the part of the acquiring. This is how a right of easement is
acquiring after passage of time prescribed by law.
Accessory that is when requisition of ownership is the result of accession. For
example, if three fruits, the produce belongs to the owner unless he has parted with to
the same. When ownership is derived from the previous version of law then it is called
derivate acquisition. That is derived mode takes place from the title of s prior owner. It is
derived either by purchase, exchange, will, gift etc.Indian Transferee Acts of property
rules for the transfer of immovable property, Sale of goods Acts for the transfer of
property of the firm and the companies Act for the transfer of company property.

Define Custom and essentials of a valid custom. Discuss

its importance as a source of law and also compare with
precedents.
INTRODUCTION: Custom is a conduct followed by
persons in the society. Custom is considered as the most
ancient and most important source of law. Source means
origin of a thing. It is also considered that law basically
comes out from customs. In the past customs were
prevailing for the control over the society.
Austin was the first person who discarded the value
of the custom. But the historical school again gave the
importance to custom. The sociological school also gives
importance to law with relation to society.
In the modern times the precedents i.e. Judge
made law and legislation have become over powered to
that of customs. As in a case of Maduri v/s Motu Ram
Linga. It was held that even custom power over the state.
VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM
AS A SOURCE OF LAW.
The followings are the systems which recognized custom
as a source of law :
1.Romal Law :- Roman Law is known to be the oldest one
in the world. This law is mainly based upon customs of
the society. Those customs which were reasonable
continued them as law by the Roman jurists.
2.Hindu Law :- Hindu law is also to be considered as the
most ancient law. His sources are Vedas, Sutras and
Smiriies and these were mainly based on customs. All
personal laws of Hindu are based upon custom that is why
Lord Warren Hastings and Lord Cornwallis did not attack
on customs of Indians.
Manu said One should follow the given path of their
ancestors. This was nothing but the reorganization of
customs.
3.Mohammedan:- Particularly ignored customs for the
purpose of law. During th Muslim period in India their
customs were protected by State. The British rulers in
India also protected customs and personal laws which
were based upon customs. The traditions which were not
opposed by the prophet Mohammedan were recognized
as law. In this way we can say that customs in
Mohammedan law also played an important role.
4. English Law :- Which is known as common law and in
the shape of un-written and based upon customs and
conventions. Customs which were reasonable and not
against the public policies were recognized as law under
English Law.
According to Pollock, The common Law is
customary law. Black stol common includes written law
and un-written law. The written law is based upon the
general customs. In this way English law also gave
importance to the customs as a source of law.
CLASSFICATION OF CUSTOMS
Mainly the customs are of four types :-
1.National Customs :- Those customs which are related to
the nation and are applicable on the countrys people.
2. Local Customs :- Those customs which are related with
a particular locality.
3. Family Customs :- Those customs which are related
with a family and have application on a particular family.
4. Conventional Customs :- These customs based upon
conventions e.g. a bigger part of English Law based on
customs and conventions.
ESSENTIALS OF CUSTOMS
1. Antiquity :- It means oldness of the customs. The
customs must be ancient. There is no limit of time for the
antiquity of custom. In India there is no fixation of such
time limit.
2. Reasonable :- The customs must be reasonable. It
should not be un-reasonable and against the public
feelings.
3. Followed :- Customs must be followed by the society.
There should be no contradiction in observing customs.
4. Continuity :- Customs must be continuing from the time
it was recognized as law. There should not be any break
or interruption. If there is break for sometimes it does not
mean that the right thing has been lost.
5. Certainty :- Customs must be certain in its nature.
6. Consistency :- There should not any confliction for its
reorganization as a law.
7. Peaceful enjoyment :- Custom must be enjoyed
peacefully for a long time without an disturbances.
8. Immorality:- Customs should not be against the
morality.
9. Public Policy:- It must not be against the public policies
or against the will of people.
10. Not against the State of Law:- Customs should not
over-ride the legislation . It should not be against the law
of the land.
WHEN DOES A CUSTOM BECOME LAW.
ANALYTICAL VIEW:- Austin and Gray are the supporters
of analytical school. They say that a custom becomes law
when it is recognized by the sovereign in the sense of
positive law only.
It means that if a custom has been accepted or
adopted or recognized by the sovereign then it will
become a law otherwise there will be no value of the
custom in judicial system of the society.
HISTORICAL SCHOOL:- Sovereign as the supporter of
Historical school says that custom is a main source or
base of law He says that consciousness of the volkgiest
is the main source of law.
Custom is superior to Judge made law or
legislation. The legislation while making a law recognizes
the customs of the society. The courts also while giving
the decisions recognized the customs prevailing in the
society.
CONCLUSION
Custom occupies an important place as a source of law
even to these days because most of the material contents
of developed system of law have been drawn from ancient
customs. Custom is one of most fruitful sources of law.
According to Analytical school a custom when recognized
by State or sovereign becomes law. According to
Historical school when state or courts make law they give
importance to the customs. So both of the view are
combining to each other and are correct for a custom as
source of law.

4. Scope Of Jurisprudence:
There is no unanimity of opinion regarding the scope of jurisprudence. It may be discussed under the following
three heads.
I. Early Period:
In the early period, jurisprudence has been so defined as to cover moral and religious percepts also and that
has created confusion.
II. Austinian Period:
It was the Austin, who distinguished law form morality and theology and restricted the term to the body of rules
set and enforced by the sovereign or supreme law-making authority within the realm. So the scope of
jurisprudence was limited to the study of the concept of positive law only.
III. Modern Period:
At present, there is a tendency to widen the scope of jurisprudence. The present view is that the limited. It
includes all concepts human order and human conduct is state and society.