theoryofabrogation

Opening Hours Mon - Sat 09 : 30 am - 8 : 00 pm

+91 9971399324

+91 8840961324

[email protected]

13, Chand Complex, 4th Floor, Okhla Main Market, Okhla Head, Jamia Nagar, New Delhi- 110025

Menu
Register For New Batch

Category: judiciary

Order 27 and Section 79-82 under CPC

Posted on By toahostinger No Comments on Order 27 and Section 79-82 under CPC

Suits by or Against the Government and Public Officers under CPC (Sections 79–82 & Order 27) In this Article: Learn about suits by or against the Government and public officers under CPC (Sections 79–82 read with Order 27). Explained with rules of notice under Section 80 CPC, essentials, exceptions, case laws, and judicial interpretation. Introduction The Code of Civil Procedure, 1908 (CPC) provides special provisions for suits involving the Government and public officers under Sections 79 to 82 read with Order 27. These rules ensure that the Government, being a large legal entity, gets proper representation and protection while also balancing the rights of individuals who seek justice against it.   Parties to Suits (Section 79 & Order 27 Rule 3) In every suit by or against the Government: • Union of India → in cases involving the Central Government. • State → in cases involving the State Government. 👉 There is no need to mention detailed names or addresses of government departments in the plaint. Public Officer Suits (Order 27 Rule 5A): When a public officer is sued in his official capacity, the Government must also be made a party to the suit.   Rule of Notice – Section 80 CPC One of the most significant provisions is Section 80 CPC, which mandates a two-month prior written notice before filing a suit against the Government or a public officer for acts done in official capacity. Object of Notice The main purpose is: 1. To allow the Government or officer to examine the claim. 2. To settle disputes outside court and avoid unnecessary litigation. Case Law: • Amar Nath v. Union of India, AIR 1960 SC 424 – Notice allows the Government to consider settlement. • Bihari Chaudhary v. State of Bihar, (1984) 2 SCC 627 – A suit filed before expiry of notice period is not maintainable.   Essentials of a Valid Notice [Section 80(1)] A valid notice must include: • Name, description, and address of the claimant. • Clear statement of cause of action. • Relief(s) claimed.   Exception to Notice Requirement [Section 80(2)] Notice is not mandatory when: • The suit is filed for urgent or immediate relief against the Government or a public officer. • Court’s permission (leave) is obtained before institution. However: • No ex parte relief can be granted without hearing the Government. • If urgency is not proved, the court may return the plaint for compliance with Section 80(1).   Effect of Errors in Notice [Section 80(3)] A suit cannot be dismissed merely because of minor errors or defects in the notice, if: • The notice has been duly served, and • It substantially contains the plaintiff’s identity, cause of action, and relief claimed. Case Law: Y. Savarimuthu v. State of Tamil Nadu (2019) – Substantial compliance is sufficient.   Does “Government” Include Semi-Government Organizations? A key question often arises: Does Section 80 CPC apply to statutory corporations or government companies? Judicial Interpretation • Kamta Prasad Singh v. Regional Manager, FCI, AIR 1974 Pat 376 – FCI is not “Government” under Section 80 CPC. • Kerala SEB v. Kurien, AIR 1989 Ker 86 – Statutory corporations may be “State” under Article 12, but not “Government” under CPC. • Hindustan Petroleum Corp. Ltd. v. A.K. Annadurai (1994) – Government-owned companies are not covered under Section 80.  Conclusion: The term “Government” in Section 80 CPC strictly refers to: • The Union of India, or • A State Government. It does not extend to statutory corporations, government companies, or semi-government organizations.   Conclusion The provisions under Sections 79–82 and Order 27 CPC ensure a structured framework for handling suits involving the Government and public officers. While Section 80 CPC notice is mandatory in most cases, exceptions exist for urgent matters. Judicial interpretation has clarified that statutory corporations and semi-government bodies, though considered “State” under Article 12 of the Constitution, are not “Government” under CPC. Thus, Section 80 balances the interests of individuals seeking justice and the Government’s need for administrative efficiency.   To start your preparation for Judicial Services Examination at home, drop a message on WhatsApp +91 8840961324 or call us on +91 9151591324 At Theory of Abrogation, we equip you with everything you need: •Subject-wise expert classes •Mock test series •Legal current affairs •Personalized mentorship for interview preparation  “Your law degree is your foundation, but your preparation is what will build your success.”   Join Our New Batch Now! Prepare smart. Prepare with Theory of Abrogation. Contact Us: B-109, Commercial Complex Dr. Mukherjee Nagar, Delhi-09 +91 9971399324 | +91 8840961324 [email protected]

Code of Civil Procedure(CPC), Interview, judiciary
Posted on By toahostinger No Comments on

Transfer of Cases under CPC (Sections 22–25) Introduction As a general rule, in civil litigation the plaintiff is dominus litis (master of the suit) and enjoys the right to choose the forum where the suit will be instituted, provided that multiple courts have jurisdiction. Normally, this choice is respected and not interfered with. However, to balance fairness, the CPC (Sections 22–25) empowers defendants, High Courts, and the Supreme Court to transfer cases in appropriate circumstances. These provisions are exhaustive and act as safeguards to ensure fair trial, convenience, and justice. Section 22 & 23: Transfer on Defendant’s Application Who Can Apply? • Only the defendant (not the plaintiff). When Can Defendant Apply? • Where the plaintiff had a choice of filing in two or more courts, but chose one. • The defendant may seek transfer to another competent court. Conditions: 1. Defendant must give notice to plaintiff and other parties (mandatory). 2. Application must be filed at the earliest stage, before settlement of issues. 3. The court must hear objections before deciding. Where to File Transfer Application? (Sec. 23) 1. If both courts are subordinate to the same appellate court → Application lies to that Appellate Court (District Judge). 2. If courts are under different appellate courts but same High Court → Application lies to the High Court. 3. If courts are under different High Courts (different States) → Application lies to the High Court within whose jurisdiction the suit was filed. Section 24: General Power of High Court & District Court Who Can Apply? • Any party (plaintiff/defendant), OR • The Court suo motu (on its own). When? • At any stage of the case. Powers of High Court/District Court under Section 24: 1. Transfer a case from one subordinate court to another. 2. Withdraw a case from a subordinate court and: • Try it themselves, or • Send it to another subordinate court, or • Re-transfer to the original court. Scope of Section 24: • Applies to any suit, appeal, or proceeding, including execution cases. • Can transfer cases even from a court without jurisdiction. • If a Small Causes Court case is transferred, the transferee court will act as a Small Causes Court. Case Law: • Durgesh Sharma v. Jayshree (2008 SC) → High Court cannot transfer a case to a court not subordinate to it. Section 25: Power of Supreme Court to Transfer Who Can Apply? • Any party to the case. Scope: • Supreme Court can transfer any suit, appeal, or proceeding from one High Court/civil court in one State to another High Court/civil court in another State. • Grounds: Expedient in the interest of justice (fair trial, convenience, avoiding conflicting judgments). Process: • Formal application + supporting affidavit must be filed before the Supreme Court. Effect of Transfer: • The new court may: 1. Start the case afresh, or 2. Continue from the stage left by previous court (as directed by SC). Case Law: • Shakuntala Modi v. Om Prakash Bharoka (1991 SC) → Husband filed divorce in Bombay, wife filed maintenance in Guwahati. SC transferred the divorce case to Guwahati for convenience and to avoid conflicting decisions. Judicial Principles on Transfer of Cases Balancing Interests: 1. Plaintiff’s Right → To choose the forum. 2. Defendant’s Right → To fair and impartial trial. Courts must carefully balance both and transfer cases only when truly necessary. Key Supreme Court Observations & Case Laws 1. Arvee Industries v. Ratan Lal (1977 SC) • Plaintiff’s choice should not be disturbed lightly. • Burden of proof lies on party seeking transfer. 2. Maneka Gandhi v. Rani Jethmalani (1979 SC) • Famous principle: “Fair trial is the paramount consideration.” • Transfer only when justice is genuinely threatened (bias, safety threats, public hostility). 3. T.V. Eachara Warrier v. State of Kerala (1985) • Mere inconvenience, vague allegations, or delay in filing transfer → Not enough. 4. Indian Overseas Bank v. Chemical Construction Co. (1979 SC) • Court considers balance of convenience (for parties, witnesses, and smooth trial). • “Forum conveniens” principle applied. 5. Subramaniam Swamy v. Ramakrishna Hegde (1990 SC) • Even if the transferee court lacks territorial jurisdiction, case can be transferred if justice requires. 6. Kulwinder Kaur v. Kandi Friends Education Trust (2008 SC) • Court must avoid discussing merits while transferring. • Reasons must be recorded. ✓ Grounds for Transfer of Suits Sufficient Grounds 1. To avoid multiplicity of proceedings/conflicting judgments (Indian Overseas Bank case). 2. Reasonable apprehension of bias or unfair trial (Gujarat Electricity Board v. Atmaram Poshani, 1989). 3. Common questions of law/fact in related suits. 4. Balance of convenience for parties/witnesses (Arvee Industries). 5. To avoid delay/unnecessary expenses (Shiv Kumari v. Ramajor Shitla Prasad, 1997). 6. To prevent abuse of court process (Maneka Gandhi case). 7. Cases involving important questions of law/public interest. Insufficient Grounds 1. Mere personal inconvenience (Indian Overseas Bank). 2. Vague fear of unfair trial without evidence (Maneka Gandhi). 3. Long distance of court (Manohar Lal v. Seth Hiralal, 1962). 4. Opponent being influential (Subramaniam Swamy case). 5. Presiding judge’s community/religion (Gaja Dhar Prasad v. Sohan Lal). 6. Judge’s past decision in similar case (Krishan Kanahya v. Vijay Kumar). 7. Adverse remarks by judge or prejudice against pleader (not affecting party). Landmark Case: Gujarat Electricity Board v. Atmaram Sungomal Poshani (1989 SC) Facts: • Employee (Atmaram) filed a suit in Bombay against disciplinary proceedings by Gujarat Electricity Board. • Cause of action arose in Gujarat. Issue: • Could Bombay court hear the case? Was there valid apprehension of bias in Gujarat? Decision: • SC transferred case to Gujarat. Principles Laid Down: 1. “Justice must not only be done but must also seem to be done.” 2. Balance of convenience favoured Gujarat (place of cause of action). 3. Mere allegation of bias not enough. Conclusion Sections 22–25 CPC ensure that transfer of cases is possible only when necessary for justice, while protecting the plaintiff’s dominus litis right. Courts exercise this power cautiously, balancing plaintiff’s forum choice and defendant’s fair trial right….

Read More “” »

Code of Civil Procedure(CPC), Interview, judiciary, Law
Posted on By toahostinger No Comments on

Foreign Judgments under the Code of Civil Procedure, 1908 A foreign judgment plays an important role in determining the conclusiveness of decisions passed by foreign courts and their enforcement in India. The Indian Civil Procedure Code (CPC), 1908, under Sections 2(5), 2(6), 13, 14 and 44A, along with principles of res judicata, lays down the rules regarding when and how such judgments are binding in India. Meaning of Foreign Court and Foreign Judgment • Section 2(5), CPC: “Foreign Court” means a court situated outside India and not established or continued by the authority of the Central Government. • Section 2(6), CPC: “Foreign Judgment” means the judgment of a foreign court. Thus, for a judgment to be treated as a foreign judgment in India, it must come from a court situated outside India and not recognized as an Indian court. Res Judicata and Foreign Judgment • Section 11 CPC (Res Judicata) does not directly apply to foreign judgments. • However, the broad principle of res judicata applies under Section 13 CPC, provided that the conditions laid down therein are satisfied. When is a Foreign Judgment Conclusive? (Section 13 CPC) A foreign judgment shall be conclusive as to any matter directly adjudicated upon between the same parties under the same title, except in the following situations: 1. Lack of Jurisdiction – The foreign court had no jurisdiction. 2. Not on Merits – Judgment not passed after considering evidence and applying judicial mind. 3. Incorrect View of International Law / Ignoring Indian Law – When Indian law is applicable but ignored. 4. Violation of Natural Justice – No fair hearing, no summons served, or denial of opportunity to cross-examine. 5. Fraud – Judgment obtained by fraud or misrepresentation. 6. Breach of Indian Law – Judgment based on a claim violating Indian law.  Effect: If none of the above exceptions apply, the Indian courts are bound to treat the foreign judgment as final and conclusive. Key Requirements for Binding Effect For a foreign judgment to operate conclusively in India: • Parties must be the same (or their representatives). • They must sue under the same title. • The matter (issue) decided must be the same. Example: If A sues B in the U.S. court and the matter is decided, then A cannot re-litigate the same issue in India, subject to Section 13 exceptions. Presumption as to Jurisdiction and Genuineness • Section 14 CPC: When a certified copy of a foreign judgment is produced, the Indian court shall presume the foreign court had jurisdiction, unless proved otherwise. • Section 86 Evidence Act (old Sec. 88 BSA): The Indian court may presume certified copies of foreign judicial records to be genuine.  Thus, once a certified copy is filed, the burden shifts to the opposite party to prove lack of jurisdiction or any exception under Section 13. Jurisdiction of Foreign Courts – Section 13(a) CPC For a foreign court to have jurisdiction: 1. The parties must be domiciled in that foreign country, or 2. They must consent to its jurisdiction (expressly or by acquiescence). • If summons is received and the party contests on merits without objecting to jurisdiction → jurisdiction by acquiescence. • If summons is ignored or objection is raised → foreign court has no jurisdiction. Clause (b) & (d): Judgment on Merits & Natural Justice • Judgment on Merits (Clause b): Only when both parties were heard, evidence was considered, and judicial mind was applied. An ex parte decree without evidence is not on merits. • Violation of Natural Justice (Clause d): Where summons not served, no opportunity of hearing/cross-examination given. Often, both clauses overlap. Clause (e): Foreign Judgment Obtained by Fraud Fraud vitiates all judicial proceedings. Examples: • Jurisdictional Fraud: False claim of domicile. • Fraud in Service of Summons: Fabricated proof of service. • Fraudulent Evidence/Documents: False documents presented. Such decrees are not conclusive under Section 13. • Clause (c) & (f): Incorrect Law / Breach of Indian Law • Clause (c): When Indian law is applicable but foreign court applies foreign law. • Clause (f): When decree is based on a breach of Indian law, it is not conclusive. Important Case Laws • Narsimha Rao v. Venkata Lakshmi (1999, SC): U.S. divorce decree held invalid due to lack of jurisdiction, fraud, violation of natural justice, wrong law applied. • Satya v. Teja Singh (1975, SC): U.S. divorce decree invalid – husband falsely claimed domicile. • Gurdas Mann v. Mohinder Singh Brar (1993, P&H HC): Ex parte decree without evidence not conclusive. • International Woollen Mills v. Standard Wool (2000, SC): Burden of proving exceptions lies on the party challenging the judgment. Execution of Foreign Decrees Foreign judgments can be executed in India in two ways: 1. Direct Execution (Sec. 44A CPC): • Applicable only to money decrees from superior courts of reciprocating territories. • Such decrees can be directly filed for execution in Indian courts. 2. Filing a Fresh Suit: • For non-money decrees, or decrees from non-reciprocating territories. • A certified copy of the foreign judgment is filed, and the Indian court passes its own decree. Conclusion The CPC strikes a balance between respecting foreign judicial decisions and protecting Indian legal sovereignty. While Section 13 CPC makes foreign judgments conclusive, it also provides safeguards against lack of jurisdiction, fraud, violation of natural justice, or breach of Indian law. Sections 14 and 44A CPC further regulate the presumption of validity and execution of such decrees. Thus, foreign judgments are respected in India, but only when they meet the tests of fairness, jurisdiction, and conformity with Indian law. ✓ To start your preparation for Judicial Services Examination at home, drop a message on WhatsApp +91 8840961324 or call us on +91 9151591324 At Theory of Abrogation, we equip you with everything you need: •Subject-wise expert classes •Mock test series •Legal current affairs •Personalized mentorship for interview preparation  “Your law degree is your foundation, but your preparation is what will build your success.”   Join Our New Batch Now! Prepare smart. Prepare…

Read More “” »

Code of Civil Procedure(CPC), judiciary, Law, Legal
Posted on By toahostinger No Comments on

Res Judicata under Section 11 of the Code of Civil Procedure, 1908 Meaning & Origin The term Res Judicata comes from Latin, where “Res” means thing or matter and “Judicata” means adjudged or decided. In simple terms, it is a legal doctrine that prevents the re-litigation of a matter already decided by a competent court. This doctrine is based on three maxims: 1. Nemo debet bis vexari pro una et eadem causa – No person should be vexed twice for the same cause. 2. Interest republicae ut sit finis litium – It is in the interest of the State that litigation must come to an end. 3. Res judicata pro veritate occipitur – A judicial decision must be accepted as correct. Statutory Provision Section 11 CPC states: “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” The section contains eight explanations clarifying terms like “former suit”, “competence of court”, “constructive res judicata”, and application in execution proceedings.   • Conditions for Application For res judicata to apply, the following must be satisfied: 1. The matter must be directly and substantially in issue in both suits. 2. The prior suit must be between the same parties or their legal representatives. 3. The parties must have litigated under the same title. 4. The earlier court must have been competent to try the later suit. 5. The matter must have been heard and finally decided.   ✓ Matter in Issue Types of Issues • Issue of Fact – Always operates as res judicata. • Issue of Law – Only when connected with facts. • Mixed Issue of Fact & Law – Also operates as res judicata. The Supreme Court in Mathura Prasad v. Dossibai held that a decision on a point of law operates as res judicata if it is not independent of the facts of the case.   • Classification 1. Directly and Substantially in Issue Essential for the decision of the case. Example: Dispute over ownership or tenancy in an eviction case. 2. Collaterally or Incidentally in Issue Side issues arising in the case; findings here do not bar re-litigation.   √ Constructive Res Judicata (Explanation IV to Section 11 CPC) If a party could and should have raised a ground in a previous suit but did not, the law will treat it as if it had been raised and decided. Test: • Is the present issue connected to the earlier suit? • Could and should it have been raised earlier? • Was it known or discoverable with due diligence? Example: State of U.P. v. Nawab Hussain – Second suit on a new ground barred because it could have been raised earlier.   ∆ Parties Covered • Same Parties – Even if roles are reversed (plaintiff ↔ defendant). • Co-defendants & Co-plaintiffs – If there was a necessary conflict decided in the earlier suit. • Parties Claiming Under Same Title – Through sale, gift, succession, will, lease, etc. • Representative Suits – Under Explanation VI, bona fide litigation on public/common rights binds all interested parties.   • Competency of Court The competence of the former court is judged as on the date of the first suit. It can be: • Exclusive jurisdiction courts (e.g., Revenue Court). • Limited jurisdiction courts (decision still binding). • Concurrent jurisdiction courts.   ✓ Final Decision Requirement Res judicata applies only if the earlier decision was on merits, including: • Ex parte decrees (if on merits). • Decrees on awards. ✓ No res judicata if dismissed for technical reasons like: • Lack of jurisdiction • Non-joinder of parties • Improper valuation • Premature suit   Special Points • Withdrawal of suit – No bar. • Compromise decree – Not res judicata, but estoppel may apply. • Appeal pending – Decision loses finality; becomes res sub judice. • Not applicable to Habeas Corpus petitions.   • Res Judicata vs Estoppel Res Judicata:-Based on court’s decision Estoppel:-Based on party’s conduct Res Judicata:-Public policy – end litigation Estoppel:-Equity – prevent inconsistent statements Res Judicata:-Bars jurisdiction Estoppel:-Rule of evidence Res Judicata:-Binds both parties Estoppel:-Binds only the party making earlier representation ∆ Exceptions 1. Waiver of plea. 2. Interlocutory orders. 3. Dismissal of SLP without reasons. 4. Different cause of action. 5. Judgment by fraud or collusion. 6. Court lacking jurisdiction. 7. Change in law creating new rights.   ✓ Leading Cases • Daryao v. State of U.P. – Writ under Article 32 barred after dismissal under Article 226. • State of U.P. v. Nawab Hussain – New ground in later suit barred. • Devilal Modi v. STO – Second writ petition on new grounds barred. • Sulochana Amma v. Narayanan Nair – Even limited jurisdiction courts’ decisions can bind.   Conclusion The doctrine of res judicata is a cornerstone of civil justice. It ensures finality of litigation, prevents multiplicity of suits, and protects the authority of judicial decisions. However, its application must balance justice and fairness, avoiding injustice under the guise of finality. ✓ To start your preparation for Judicial Services Examination at home, drop a message on WhatsApp +91 8840961324 or call us on +91 9151591324 At Theory of Abrogation, we equip you with everything you need: •Subject-wise expert classes •Mock test series •Legal current affairs •Personalized mentorship for interview preparation “Your law degree is your foundation, but your preparation is what will build your success.”   Join Our New Batch Now! Prepare smart. Prepare with Theory of Abrogation. Contact Us: B-109, Commercial Complex Dr. Mukherjee Nagar, Delhi-09 +91 9971399324 | +91 8840961324 [email protected]

Code of Civil Procedure(CPC), judiciary, LANDMARKS, Law

Res Sub Judice: Stay of Suit under section 10 cpc

Posted on By toahostinger No Comments on Res Sub Judice: Stay of Suit under section 10 cpc

Res Sub Judice: Stay of Suit under Section 10 CPC Introduction Section 10 of the Code of Civil Procedure (CPC) embodies the doctrine of Res Sub Judice, which literally means “a matter under judicial consideration”. The provision is aimed at preventing simultaneous trials of two suits in different courts when the matter in issue is the same, thereby avoiding conflicting decisions and multiplicity of proceedings. Statutory Provision Section 10 reads as follows: “No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India established or constituted by the Central Government and having like jurisdiction, or before the Supreme Court.” Explanation: The pendency of a suit in a foreign court does not preclude Indian courts from trying a suit founded on the same cause of action. Object of Section 10 The primary purpose of Section 10 is: • To avoid multiplicity of proceedings. • To prevent two courts of concurrent jurisdiction from trying the same matter at the same time. • To avoid the risk of conflicting decisions. Conditions for Applicability For Section 10 to apply, the following conditions must be satisfied: 1. There must be two suits – one previously instituted and another subsequently instituted. 2. The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit. 3. Both suits must be between the same parties or their representatives. 4. The parties must be litigating under the same title in both suits. 5. The previously instituted suit must be pending in a court having jurisdiction to grant the relief claimed in the subsequent suit. 6. Section 10 applies only to suits (including appeals) and not to applications or complaints. ✓ Meaning of “Matter in Issue” The expression “matter in issue” means the entire matter in controversy in the suit, not just some issues. Mere overlapping of issues is insufficient. Example: Recovery of rent for one period and rent for a later period with ejectment would not be considered the same matter in issue. Illustrations 1. Claim for Rent: A sues B for rent. B denies rent is due. The claim for rent is directly and substantially in issue. 2. Title & Rent: A sues B for declaration of title and for rent of the same land. Both title and rent are directly and substantially in issue. 3. Trademark Dispute: If A company sues B company for infringement and B files a similar suit against A in another court, the latter must be stayed. Scope of Section 10 • Bar on Trial, Not Institution: Section 10 does not prohibit filing of a subsequent suit; it only bars its trial until the earlier suit is decided. • Mandatory Nature: The provision is mandatory and applies whenever conditions are met. • Inherent Powers: If conditions are not strictly met, courts can use inherent powers under Section 151 CPC to stay proceedings in the interest of justice. Effect of Contravention A decree passed in contravention of Section 10 is not void; it remains valid unless set aside. The rule can also be waived by parties if they consent to proceed with the subsequent suit. Interim Orders A stay of the suit does not prevent the court from passing interim orders such as injunctions, appointment of receiver, attachment before judgment, etc. Test for Applicability The key test is whether the decision in the earlier suit would operate as res judicata in the later suit. If yes, the later suit must be stayed. Consolidation of Suits To avoid conflicting judgments, courts may consolidate suits between the same parties involving substantially the same issues. ∆ Difference between Res Judicata and Res Sub Judice 1. Res Judicata: Applies to matters already adjudicated (final decision). 2. Res Sub Judice: Applies to matters pending decision in a previously instituted suit. Conclusion Section 10 CPC is a procedural safeguard ensuring judicial discipline by avoiding parallel trials over the same dispute. While it bars the trial of a subsequent suit, it leaves room for necessary interim relief and consolidation, ultimately aiming to protect the integrity and efficiency of the judicial process. ✓ To start your preparation for Judicial Services Examination at home, drop a message on WhatsApp +91 8840961324 or call us on +91 9151591324 At Theory of Abrogation, we equip you with everything you need: •Subject-wise expert classes •Mock test series •Legal current affairs •Personalized mentorship for interview preparation “Your law degree is your foundation, but your preparation is what will build your success.”   Join Our New Batch Now! Prepare smart. Prepare with Theory of Abrogation. Contact Us: B-109, Commercial Complex Dr. Mukherjee Nagar, Delhi-09 +91 9971399324 | +91 8840961324 [email protected]

Code of Civil Procedure(CPC), judiciary, Law, Legal
Posted on By toahostinger No Comments on

Juristic Personality 1. Concept of Legal Personality In every legal system, there must be entities that can hold rights and bear duties. These entities are called legal persons. A legal person may be: • A natural person (human being) – exists by nature, recognized by law. • A juristic person (artificial person) – created by law, such as companies, states, and institutions. Definition (Salmond): A person is any being whom the law regards as capable of rights and duties. Statutory Definition: • Section 11, IPC and Section 2(26), BNS – “Person” includes companies, associations, and bodies of persons, whether incorporated or not. 2. Natural vs Juristic Persons • Natural Persons: Born with personality; e.g., citizens, residents. • Juristic Persons: Granted personality by legal recognition; e.g., corporations, municipal bodies, universities, religious institutions. 3. Types of Juristic Persons A. Corporations:-A corporation is an artificial legal person with separate identity from its members. (i) Corporation Sole • A single office that continues despite change of holder. • Examples: President of India, Governor of a State, CAG. • Salmond calls it “two persons in one” — the human and the permanent office. (ii) Corporation Aggregate • A group of persons forming one legal entity. • Created by charter, by statute, or by registration. • Examples: RBI, Infosys Ltd, BMC. B. Corporate Personality • Case: Salomon v. Salomon (1897) – Established that a company is a separate legal entity. • Rights: Own property, sue and be sued, enter into contracts. • Acts through agents/directors. C. Religious Institutions as Juristic Persons • Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1925) – Hindu idols recognized as legal persons capable of owning property and suing. D. The State • Under Article 300, Constitution of India – Union and State governments can sue and be sued in their own names.   4. Entities Without Separate Legal Personality • Unincorporated Associations – Social clubs, trade associations; cannot sue in own name. • Partnership Firms – Not distinct legal persons, but can sue/be sued if registered. • Registered Trade Unions – Recognized by statute; have limited rights. 5. Special Situations A. Double Capacity One human can act in multiple legal roles (e.g., individual & trustee) but still has one legal personality. B. Legal Status of a Dead Person • Legal personality ends with death. • Certain rights remain protected: dignity of burial, protection from defamation, enforcement of will. C. Legal Status of an Unborn Child • Can hold certain rights subject to birth. • Example: Section 13, Transfer of Property Act – property can be transferred for benefit of unborn. 6. Theories of Corporate Personality 1. Fiction Theory – Corporation is an artificial creation of law (Savigny). 2. Concession Theory – Personality exists because the state allows (Dicey, Salmond). 3. Realist Theory – Corporation is a real social group (Gierke, Maitland). 4. Bracket Theory – Corporate name is just a symbolic bracket for members (Ihering). 5. Purpose Theory – Personality exists only to fulfill specific purposes (Brinz). 6. Hohfeld’s Theory – Only humans truly have rights; corporation is a legal method. 7. Doctrine of Lifting the Corporate Veil General Rule: Company is separate from members (Salomon). Exception: Courts may “lift the veil” to find real persons controlling the company. When Applied: • Fraud or improper conduct (Gilford Motor Co. v. Horne, 1933) • Evasion of obligations (Jones v. Lipman, 1962) • Public interest or prevention of crime (DDA v. Skipper Construction, 1996) 8. Corporate Liability • Civil Liability – For breach of contract, negligence, etc. • Criminal Liability – For offences where fine is applicable; directors/officers may also be liable. • Cases: Satyam Scandal (2009), Bhopal Gas Tragedy (1984). Conclusion The concept of juristic personality is one of the cornerstones of modern law. By granting legal recognition to artificial entities like corporations, institutions, and even religious idols, the legal system allows them to own property, enter into contracts, and be held liable — just like natural persons. This concept facilitates commerce, governance, and social organization. However, the law also ensures accountability by doctrines like lifting the corporate veil, ensuring that legal personality is not misused as a shield for fraud or injustice. ✓ To start your preparation for Judicial Services Examination at home, drop a message on WhatsApp +91 8840961324 or call us on +91 9151591324 At Theory of Abrogation, we equip you with everything you need: •Subject-wise expert classes •Mock test series •Legal current affairs •Personalized mentorship for interview preparation “Your law degree is your foundation, but your preparation is what will build your success.”  Join Our New Batch Now! Prepare smart. Prepare with Theory of Abrogation. Contact Us: B-109, Commercial Complex Dr. Mukherjee Nagar, Delhi-09 +91 9971399324 | +91 8840961324 [email protected]

judiciary, LANDMARKS, Law, Legal
Posted on By toahostinger No Comments on

Ownership and Possession in Jurisprudence – Meaning, Essentials, Types, and Case Laws Ownership and possession are two core concepts in jurisprudence and property law. While often related, ownership is the ultimate legal right over a thing, whereas possession refers to physical control or holding of that thing. This distinction is vital for law students, judiciary exam aspirants, and legal professionals because courts often decide property disputes based on these concepts. Ownership – Meaning and Significance Ownership means having legal rights over a property or object. It is not just physical control; it covers a bundle of rights, such as: • Claiming possession • Using and enjoying • Transferring or disposing • Protecting against interference by others Salmond’s view: Ownership is a legal relationship between a person and a thing, which includes rights in rem (enforceable against the whole world). Austin’s view: Ownership is a right against everyone, not limited by time, usage, or method of transfer. Essentials of Ownership 1. Right of Possession • Even if the owner is not in actual possession, the law recognizes their right to claim it. Example: If M’s watch is stolen, M remains the owner and can recover it. 2. Right to Use and Enjoy • Owner may: • Manage the property • Use it personally • Earn income from it These are liberties, not always strict legal rights. 3. Right to Consume, Destroy, or Transfer (Alienate) • Owner can: • Eat, use up, or destroy the thing • Sell, gift, or mortgage it (Subject to legal restrictions – e.g., land sale to foreigners may be restricted.) 4. Indeterminate Duration • Ownership lasts until voluntarily transferred or abandoned. • After death, it passes to heirs. 5. Residuary Character • Even after granting rights to others (e.g., tenancy), the remaining rights stay with the owner. Ownership vs. Possession • Ownership = Legal title • Possession = Actual holding or control Example: A landlord owns a house but the tenant possesses it. A thief possesses a watch, but ownership remains with the lawful owner. Encumbrances on Ownership An encumbrance is a limitation or burden on ownership rights, where another person has some right over the property. Common examples: • Lease – Tenant’s right to occupy • Servitude – Right of way over land • Mortgage/Security – Creditor’s interest in property What Can Be Owned? Ownership is not limited to physical property. It can include: • Physical assets – land, buildings, vehicles • Rights – debt recovery, patent rights • Investments – stocks, bonds Salmond: Law protects rights, not objects directly — so ownership is always of a right. How Ownership is Acquired According to Salmond, ownership can be acquired: 1. By Law – Without any action (e.g., inheritance) 2. By Act/Event – Original acquisition (first-time possession) or derivative acquisition (purchase, gift) Types of Ownership 1. Corporeal & Incorporeal – Physical things vs. rights 2. Trust & Beneficial Ownership – Trustee holds legal title; beneficiary enjoys benefits 3. Legal & Equitable – Indian law treats both equally 4. Sole & Co-ownership – Single owner vs. joint owners 5. Vested & Contingent – Absolute vs. conditional ownership Possession – Meaning and Legal Recognition Possession means having physical control over a thing with the intention to hold it. Before law existed, possession was a natural fact; later, law started protecting it for maintaining peace and order. Salmond: Possession is actual holding (possession in fact) + intention (animus possidendi). Essentials of Possession 1. Corpus Possessionis (Physical Control) • Ability to use and exclude others • Confidence that interference will not occur 2. Animus Possidendi (Intention to Possess) • Acting as if the property is one’s own • Not necessarily believing you are the legal owner • Savigny: True possession requires acting like an owner Kinds of Possession 1. Corporeal & Incorporeal – Tangible items vs. rights 2. Immediate & Mediate – Direct control vs. control through another 3. Adverse Possession – Long, open, and hostile possession without permission can lead to ownership 4. Possession in Fact & in Law – Actual control vs. legal right to control Modes of Acquiring Possession • Taking – With or without consent of the possessor • Delivery – Actual or constructive (surrender, transfer of legal control) Legal Importance of Possession • Evidence of Ownership – Presumed owner unless proven otherwise • Adverse Possession – Can ripen into ownership • Protection under Law – Section 6, Specific Relief Act protects possession from unlawful eviction • Transfer of Ownership – Often through possession Important Case Laws 1. Merry v. Green (1843) – No possession without intention 2. Armory v. Delamirie (1722) – Finder has rights against all except true owner 3. South Staffordshire Water Co. v. Sharman (1896) – Possession of land includes objects in it 4. Hannah v. Peel (1945) – Finder’s rights can prevail over absentee owner 5. Hibbert v. McKiernan (1948) – Trespasser cannot claim possession Possessory Remedies Possession is protected by: • Criminal law – Prevents unlawful dispossession • Tort law – Actions for wrongful interference • Property law – Section 6, Specific Relief Act: Even unlawful possession cannot be disturbed without due process Conclusion Ownership and possession, though closely related, are not the same. Ownership gives complete legal rights, while possession is physical control with intention. Law protects both to maintain peace, order, and property security. ✓ To start your preparation for Judicial Services Examination at home, drop a message on WhatsApp +91 8840961324 or call us on +91 9151591324 At Theory of Abrogation, we equip you with everything you need: •Subject-wise expert classes •Mock test series •Legal current affairs •Personalized mentorship for interview preparation  “Your law degree is your foundation, but your preparation is what will build your success.” Join Our New Batch Now! Prepare smart. Prepare with Theory of Abrogation. Contact Us: B-109, Commercial Complex Dr. Mukherjee Nagar, Delhi-09 +91 9971399324 | +91 8840961324 [email protected]

judiciary, LANDMARKS, Law, Legal
Posted on By toahostinger No Comments on

Legal Rights and Duties In Jurisprudence: State Recognition, Protection & Exceptions Understanding rights and duties is central to the study of jurisprudence. Legal rights are not merely abstract ideas but legally enforceable claims, protected and recognized by the State. Duties are the counterpart of rights, and together they form the foundation of the legal system. This article explores the nature, theories, recognition, protection, and exceptions concerning legal rights and duties. 🔹 Meaning of Legal Right Salmond defines a legal right as: “An interest recognized and protected by the law, the violation of which would be a legal wrong, and the respect of which is a legal duty.” A legal right thus includes: • An interest • Recognition by law • Protection by law • A duty imposed on others  Essence of a Right: If X owes ₹100 to Y, and the law enforces this debt, Y has a legal right. The right isn’t in the money but in the legal power to demand payment. X, in turn, has a legal duty to pay. 🔹 Theories of Legal Rights 1. Will Theory • Supported by: Austin, Holland, Kant, Hegel • View: Rights arise from an individual’s will or autonomy. • Criticism: Fails to include entities like infants or mentally ill, who can’t express will yet have rights. 2. Interest Theory • Propounded by: Ihering, Salmond • View: Law protects socially valuable interests. • Advantage: Covers a wider range of right-holders including corporations, infants, etc. 🔹 State Recognition of Rights A claim or interest becomes a legal right only when recognized by the State. Without legal recognition, it remains a moral or social expectation. Gray: “Only those interests which the law recognizes become rights.” Even moral rights or natural rights become legal only after formal recognition. 🔹 State Protection of Rights (Controversial) Recognition is not enough — a right must also be protected and enforced by the legal system. • Salmond & Ihering: A right requires enforceability through courts. • Austin: Law must impose a duty through the sovereign. • Gray: Recognition without protection is incomplete. For example, if a person has a right to receive rent, the court must provide a remedy (e.g., recovery suit) when that right is violated. 🔹 Exceptions: No Absolute Protection Despite state recognition, not all rights are perfectly protected or enforceable. These are known as imperfect rights or rights without remedy. 1. Imperfect Rights Recognized by law but not enforceable due to procedural defects. Examples: • Time-barred debts under Limitation Act • Claims against foreign sovereigns • Rights with insufficient legal evidence This is an exception to the famous maxim: Ubi jus ibi remedium – “Where there is a right, there is a remedy” 2. Rights with Remedies but No Enforcement Some rights are not enforced by courts but are acknowledged morally or politically, e.g. tortious claims or certain constitutional directives. Example: Damages for defamation or false imprisonment may be granted, but the act itself may not be immediately stopped. 3. No Enforcement Mechanism: International Law Some international human rights are recognized but lack enforcement. Examples: • Rights under the Universal Declaration of Human Rights (UDHR) • International Court of Justice decisions — only binding with state consent 🔹 Types of Legal Rights Based on Object: 1. Over Material Things – e.g., car, land, house 2. Over Person – e.g., protection from assault 3. Over Reputation – e.g., protection from defamation 4. Intangible Property – e.g., copyrights, patents 5. Domestic Relations – e.g., marital or parental rights Perfect vs. Imperfect Rights: • Perfect Right – Enforceable by courts • Imperfect Right – Recognized but not enforceable 🔹 Hohfeld’s Analysis of Legal Rights Term                                       Correlative                                    Opposite Right                                            Duty                                                No-Right Liberty                                       No-Duty                                             Duty Power                                          Liability                                        Disability Immunity                                   Disability                                        Liability Examples: • Right: Landlord has right → Tenant has duty to pay rent • Liberty: Person may walk in public park → No one has right to stop • Power: Judge can sentence → Accused has liability • Immunity: President is immune from criminal prosecution (Art. 361) 🔹 Special Classifications Basis                                                                                    Types Subject of Right                                                 Proprietary vs. Personal. Enforcement                                                      Ordinary vs. Fundamental Source of Recognition               Legal vs. Equitable (under English Law) Scope                                       Right…

Read More “” »

judiciary, Law, Legal
Posted on By toahostinger No Comments on

Sources of Law In jurisprudence– An Analytical Overview  Definition of Sources of Law Sources of law are origins or roots from where laws derive their authority. They explain how laws are formed and what gives them legal power.  Salmond’s Classification of Sources of Law Salmond divides the sources into two major types: 1. Material Sources These are the content or material from which laws are developed. A. Legal Sources (Authoritative) These are legally recognized and binding in nature. • Custom – Forms Customary Law • Precedent – Leads to Case Law • Legislation – Gives rise to Statutory Law • Agreement – Forms Conventional Law B. Historical Sources (Non-authoritative) These influence the law but are not binding: • Writings of jurists • Foreign judgments • Ancient customs 2. Formal Sources These provide legal force to rules when they are recognized by courts or included in statute books. • A rule becomes formal when it gains authority through legislation or judicial recognition.  Kinds of Legal Sources (According to Salmond) 1. Custom 2. Precedent 3. Legislation 4. Agreement (for Conventional Law) • Custom as a Source of Law  Definition by Salmond “Custom is to society what law is to the state.” ✓ Importance of Custom • Foundation of early law • Enhances acceptability of laws ✓ Decline of Custom • Modern legal systems rely more on legislation and precedent.  Types of Custom 1. Legal Custom (Binding without agreement) • General Legal Custom: Applies nationwide • Local Legal Custom: Applies in a specific region or group 2. Conventional Custom (Based on agreement) • Binding only if parties agree • Common in trade and commercial practices  Tests for Valid Custom 1. Antiquity – Must exist since time immemorial (Blackstone: Must be older than memory) 2. Continuity – Must be practiced without legal break 3. Peaceful & Open Use – Must not be secretive or forced 4. As of Right – Claimed as a right, not a privilege 5. Reasonableness – Must not be unjust or against public policy • Lady Wilson v. Willes (1806): Unreasonable custom rejected 6. Opinio Necessitatis – Must be followed with a sense of obligation 7. Conformity with Statutory Law – Cannot conflict with legislation • Allen: Even ancient custom cannot override statute 8. Consistency with Other Customs – Must not conflict with existing customs 9. Definite Locality or Group – Must be specific and not vague Theories on Customary Law 1. Historical School (Savigny, Carter) • Custom = true law • Courts/legislatures only recognize what already exists 2. Austin’s View • Custom becomes law only when recognized by the state 3. Salmond & Holland • Custom is a material legal source, accepted if it meets legal tests  Precedent as a Source of Law  Definition A precedent is a judicial decision that sets a legal principle. It must be followed in future cases by the same or lower courts. ✓ Importance • Ensures consistency and predictability • Especially important when no statute exists Advantages of Precedent 1. Certainty in Law 2. Natural Growth of Law 3. Flexibility and Adaptability  Disadvantages 1. Rigidity 2. Over-technical approach 3. Slow law reform • Bentham: “It is dog’s law”  Hierarchy of Precedents • Lower courts follow higher courts • Equal benches follow for consistency • High Courts must follow Supreme Court rulings • Smaller benches are bound by larger benches  Precedents in India 1. Article 141 of the Constitution “The law declared by the Supreme Court shall be binding on all courts within the territory of India.” 2. High Court Rules • Single Judge follows other Single Judge • Division Bench decisions binding on equal strength benches 3. Persuasive Value • High Court decisions not binding on others, but influential  Doctrine of Stare Decisis “To stand by what has been decided.” • Ensures judicial discipline • Courts rely on clear hierarchy and recorded judgments  Theories of Judicial Law-Making 1. Declaratory Theory (Blackstone) • Judges declare existing law • Criticized by Bentham & Salmond 2. Judges as Lawmakers • Judges create law when interpreting new issues • Lord Denning, Gray, Dicey: Judges shape law daily  Types of Precedents 1. Authoritative – Binding (e.g., SC decisions) 2. Persuasive – Not binding (foreign or other High Courts) 3. Declaratory – Restate existing law 4. Original – Create new legal principle  Ratio Decidendi & Obiter Dicta • Ratio Decidendi = Legal reasoning behind the decision → Binding • Obiter Dicta = Extra remarks → Not binding but persuasive  When Precedents Are Not Binding 1. Overruled by higher court 2. Ignorance of law 3. Conflicts with earlier higher court rulings 4. Contradictory decisions of same-level courts 5. Sub Silentio – Decided without proper legal discussion Legislation as a Source of Law  Definition by Salmond Every formal expression of legislative will is legislation.  Types 1. Supreme Legislation – Parliament (cannot be overruled) 2. Subordinate Legislation – Created under authority of supreme legislation • Executive, Judicial, Municipal, Autonomous  Direct vs. Indirect Legislation • Direct – Acts passed by Parliament (e.g., BNS 2023) • Indirect – Judicial interpretations (e.g., Article 21 = Right to Privacy) Advantages of Legislation 1. Clear & Declared 2. Abrogative Power – Can repeal old laws 3. Efficient Division – Legislature makes, courts apply 4. Future-ready – Addresses new problems (e.g., AI, Cybercrime) • Salmond: “Legislation is like coin; custom is gold in the mine.”  Delegated Legislation – A Double-Edged Sword  Definition When Parliament delegates power to the executive to make rules.  Examples • Environment Protection Act rules made by Government  Need for Delegation • Technical details • Faster rule-making • Shared responsibility  Criticism Jurist.                                                                View Keeton                          “Like ghostly Banquo’s children” – too many rules Hewart                         “New despotism” – dangerous executive power Sankey …

Read More “” »

judiciary, Law, Legal
Posted on By toahostinger No Comments on

Jurisprudence: The Philosophy and Science of Law 🔹 Introduction Jurisprudence is the study, analysis, and philosophy of law. It delves deep into understanding what law is, how it evolves, and how it should function in society. The word “Jurisprudence” comes from Latin: Juris = Law Prudentia = Knowledge or Skill Thus, jurisprudence literally means “knowledge of law” or “legal skill”. 🔹 Origin and Nature The study of jurisprudence first began with Roman jurists. Think of it as what science is to nature, jurisprudence is to law—it explores the fundamentals, reasoning, and purpose behind legal systems. >  “Jurisprudence is not concerned with the text of statutes but with the essence of law itself.”   As Cicero described, jurisprudence is the philosophical aspect of law—examining why laws exist, how they should evolve, and their moral backbone.   Jurisprudence, derived from the Latin term juris prudentia, meaning “knowledge of the law,” represents the theoretical and philosophical study of law. It explores the origin, purpose, structure, and enforcement of laws within society. The discipline has ancient roots, evolving over centuries through various cultures and legal traditions. • Origin of Jurisprudence The origin of jurisprudence can be traced back to classical civilizations: Ancient Rome: Roman law is considered one of the earliest and most influential legal systems. Thinkers such as Ulpian and Gaius laid the groundwork for systematic legal analysis. Roman jurisprudence was concerned with categorizing laws, defining legal principles, and ensuring justice through reasoned interpretation. Greek Philosophy: Philosophers like Plato and Aristotle explored the concept of justice, natural law, and the role of law in a well-ordered society. Aristotle’s notion of natural justice versus legal justice laid a foundation for later theories distinguishing between man-made laws and universal moral principles. Religious Legal Systems: In Islamic jurisprudence (Fiqh), Jewish law (Halakha), and Canon law (Christian), jurisprudence took a theological form, interpreting divine commandments into legal doctrines. English Common Law Tradition: Jurisprudence developed through case law and judicial reasoning. Thinkers like Sir Edward Coke and William Blackstone emphasized precedent, legal customs, and the rights of individuals under the law. • Nature of Jurisprudence Jurisprudence is normative, analytical, and critical in nature. It does not merely describe laws but seeks to evaluate, interpret, and question their meaning and application. It can be broadly categorized into the following types: 1. Analytical Jurisprudence: Focuses on the logical structure of law, analyzing legal concepts such as rights, duties, sovereignty, and justice. It seeks clarity and coherence in legal language. H.L.A. Hart and Austin are major figures in this school. 2. Natural Law Jurisprudence: Argues that law should be based on morality or universal moral principles. Laws that are unjust or immoral, according to this view, may lack legitimacy. Thinkers include Cicero, St. Thomas Aquinas, and Lon Fuller. 3. Historical Jurisprudence: Emphasizes the evolutionary nature of law as shaped by customs, traditions, and societal needs. Savigny argued that law grows organically from the spirit (Volksgeist) of a people. 4. Sociological Jurisprudence: Sees law as a tool for social engineering. Law should be studied in its social context, not just as abstract rules. Roscoe Pound and Eugen Ehrlich are key proponents. 5. Critical Legal Studies: Emerged in the 20th century as a critique of traditional legal structures. It views law as a product of political and social power structures, often reinforcing inequality.    Why is Jurisprudence Important? As per Salmond, jurisprudence serves several key purposes: 1. Thought-Provoking It introduces theoretical ideas that later influence real-world laws. Example: Natural rights (life, liberty) started as theory, became human rights laws. 2. Clarifies Legal Concepts It helps organize and simplify complex legal ideas. Example: The concept of legal personality—treating companies as “legal persons”. 3. Educational Value It trains legal minds to think logically and critically. Example: A judge may give justice over strict technicalities due to jurisprudential thinking. 4. Shapes Practical Laws Helps in modern lawmaking for current issues. Example: Emergence of cyber laws and AI regulations.   Definitions by Great Jurists Ulpian: “Jurisprudence is the observation of things human and divine, the knowledge of the just and the unjust.” Cicero: Philosophical knowledge of law. Gray: “Science of law… systematic arrangement of rules followed by courts.” Salmond: “Science of the first principles of civil law.” John Austin: “Philosophy of positive law.” Allen: “Scientific synthesis of essential principles of law.” H.L.A. Hart: “Jurisprudence is the science of law, exploring legal concepts, systems, and the nature of law.”   Salmond’s Classification of Jurisprudence 1. Expository or Systematic Jurisprudence Studies existing laws. Example: Analysis of the Indian Contract Act. 2. Legal History Explores how law has evolved over time. Example: Property or marriage laws from ancient to modern India. 3. Science of Legislation Suggests how laws should be made for future needs. Example: Laws for digital privacy or AI regulation.    Austin’s Theory: Positive Law John Austin defined law as the command of the sovereign backed by sanction. His jurisprudence: Focuses on law as it is, not as it ought to be. • Divides jurisprudence into: ✓ General Jurisprudence: Legal principles common across systems. ✓ Particular Jurisprudence: Laws of a specific country (e.g., Indian Law).   Example: √ Studying punishment in all countries = General √ Studying Indian Penal Code = Particular   Criticism: Professor Holland disagreed with Austin’s division. He argued science should not be split into “general” and “particular” forms.    Modern Perspectives on Jurisprudence H.L.A. Hart: System of Rules Hart divided laws into: √ Primary Rules: Tell us what to do (e.g., “Don’t steal”). √ Secondary Rules: Tell us how to create or enforce primary rules (e.g., Parliament’s power to legislate). He said a legal system is complete only when both rules exist together.    Definitions of Law by Famous Thinkers J.C. Gray: Law = Rules enforced by courts. Salmond: Law = Principles applied by the state for justice. Roscoe Pound: Law = Social control through organized force. Paton: Law = Binding rules that regulate society. Kelson: Law = A technique of social organization, without political or ethical value. Austin: Law = Command of…

Read More “” »

judiciary, Law, Legal