Discuss the nature and scope of Jurisprudence.

What is the importance of this subject in the study of

law? OR “Jurisprudence is the eye of law”.
INTRODUCTION :- Jurisprudence in its nature is entirely a different subject from other social science.
The reason for this is that it is not codified but a growing and dynamic subject having no limitation on itself.
Its inquiry system is of different status from other subjects. Every jurist does not base his study on the rules
made but tries to understand their utility after due deliberation Thus the jurisprudence has no limited scope
being a growing subject. There is a difference of opinion about the nature of jurisprudence. It is called both
art and science. But to call it science would be more proper and useful. The reasons for this is that just as
in science we draw conclusions after Making a systematic study by inventing new methods. In the same
way, jurisprudence is concerned with the fundamental principles of law systematic and scientific study their
methods.
The scope of Jurisprudence:- According to justice P.B.Mukherjee:” Jurisprudence is both an intellectual
and idealistic abstraction as well as behavioral study of man in society. It includes political, social,
economic and cultural ideas. It covers that study of man in relation to state and society.”
Jurisprudence involves certain types of investigations into law, and investigation an abstract, general and
theoretical nature which seeks to lay the bare essential principles of law and legal systems.
Salmond observed: “In jurisprudence, we are not concerned to derive rules from authority and apply them
to the problem, we are concerned rather reflect on the nature of legal rules, on the underlying meaning of
legal concepts and on the essential features of the legal system.” It, therefore, follows that jurisprudence
comprises philosophy of law and its object is not to discover new rules but to reflect on the rules already
known.
CONTENTS OF JURISPRUDENCE:- The following are the contents of jurisprudence:-
i) Sources It is true that the basic features of a legal system are mainly to be found in its authoritative
sources and the nature and working of the legal authority behind these sources. Under this head matters
such as custom, legislation, precedent as sources of law, pros and cons of codification of laws, methods of
judicial interpretation and reasoning, an inquiry into the administration of justice etc., are included for study.
ii) Legal Concepts :- Jurisprudence includes the analysis of legal concepts such as rights, title,
property, ownership, possession, obligations, acts, negligence, legal personality and related issues.
Although all these concepts are equally studied in the ordinary branches of law, but since each of the
functions in several different branches of law, jurisprudence tries to build a more comprehensive picture of
each concept as a whole.
iii) LEGAL THEORY :- the Legal theory is concerned with law as it exists and functions in the society
and the manner in which law is created and enforced as also the influence of social opinion and law on each
other. It is, therefore, necessary that while analyzing legal concepts, and effort should be made to present
them in the background of social developments and changing economic and political attitudes.
UTILITY OR IMPORTANCE OF JURISPRUDENCE
It is often said that jurisprudence being an abstract and theoretical subject, is not of any practical use. But
it is not correct to say so. Its utility is as under :-
1. Salmond pointed out that jurisprudence has its own intrinsic interest like any other subject of
serious scholarship, likewise the writer on jurisprudence may be impelled to his subject by its intrinsic
interest. The legal researches on jurisprudence may well have their effect on contemporary socio-political
thought and at the same time may themselves be influenced by these ideologies.
2. Jurisprudence also has its practical applicability. In other words, it serves to render the
complexities of law more manageable and rational and in this way, theory can help to improve practice in
the seats of law.
3. Jurisprudence has great educational value. The logical analysis of legal concepts widens the outlook
of lawyers and sharpens their logical technique. It helps them in shading aside their rigidity and formalism
and trains them to concentrate or social realities and the functional aspects of the law. It is not the form of
law but the social function of law which has relevance in modern jurisprudence. For instance, a proper
understanding of the law of contract may perhaps require some knowledge of economic and economic
theory or a proper grasp of criminal law may need some knowledge of criminology and psychiatry and
perhaps also of sociology.
4. Commenting on the significance and utility of jurisprudence : Holland observed, “ the ever renewed
complexity of human relations call for an increasing complexity of legal details, till a merely empirical
knowledge of law becomes impossible.” Thus jurisprudence throws light on the basic ideas and the
fundamental principles of law in a given society. This way it has been characterized as “The eye of law.”
5. Jurisprudence helps the Judges and the Lawyers in ascertaining the true meaning of the laws passed
by the legislature by providing the of interpretation.
6. The study of jurisprudence helps in rationalizing the thinking the students and prepares them for an
upright civil life. The knowledge of the law and legal precepts also helps them to face every exigency of
human affairs boldly and courageously.
7. Jurisprudence may also be helpful o legislators who play a crucial role in the process of law-
making. The study of jurisprudence may familiarise them with technicalities of law and legal precepts thus
making their job fairly easy as also interesting.
According to Dias, the study of jurisprudence provides an opportunity for the lawyer to bring theory and
life into focus for it concerns human thought in relation to social existence. The law should serve the
purpose of social-engineering by preserving societal values and eliminating conflicting interests of
individuals in the society.
JURISPRUDENCE IS THE EYE OF LAW:- On account of the importance of jurisprudence in the field of
law it is called, “The eye of Law”. The eyes are one of the most important parts of human body. Almost
all human activities and the movements of the body are possible only through them. Unless man can see
anything properly, he cannot do any work. The reason for calling jurisprudence the ‘ the eye of law’ is that
jurisprudence functions for law in the same manner as the eyes do in the human body. For example- the
interpretation of the law is a very difficult task, It cannot be done without the help of jurisprudence.
‘PATON’ in this connection says that,” Jurisprudence is a particular method of study, not the law of one
particular county but of the general notions of law itself.’
Whenever any complicated problem regarding law like:-
1 How and when the law developed.
2 What is its object?
3 Whether the law was made by people or it was due to the inspiration of some Divine force.
 4 Whether the law is a command of a sovereign or it is a result of the gradual development of
civilization in society. The main function of jurisprudence is to study the origin of law, its
development and its contribution towards society.
The matters of birth, marriages, death, succession etc., are equally controlled by laws. It is the well known
saying that “ignorance of the law is no excuse,” hence it is essential to know the correct basic principles of
law which are contained only in the jurisprudence. Law is also connected with civil life. A person who
obeys laws is known as a civilized citizen. A person who does not obey the law is punished. It is therefore
necessary that all the people should have the sound knowledge of the law which is possible only with the
help of jurisprudence. Therefore, jurisprudence, having so much importance for the society, has rightly
been called the eye of law.
What are the sources of Law? Defines the importance of Legislation as the source of law?
The Sources of Law are:
Definition of Custom:
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 the 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 overpowered to that of customs. As in a
case of Madurai v/s Motu Ram Linga. It was held that even custom power over the state.
DEFINITION 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 the conduct of court
adopted by the lower court in similar facts and in similar circumstances in a case. Particularly the precedents
mean 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 a
source of law is called an inductive method, while the method of continental countries not following
previous decisions of the court is called the deductive method.
Definition of Legislation
Legislation means the process of lawmaking. This lawmaking power is vested in the legislative body which
is a sovereign body. It is called Parliament at the center level and legislative assembly at the state level.
The legislation is the most important and modern source of Law. This source has played an important role
in the development of modern law and also different from custom and precedent etc.
LEGISLATION AS A SOURCE OF LAW:- The importance of legislation starts from the beginning of
analytical school. This school ignored the importance of custom and gave the stress on command of the
sovereign which can make law only through legislation. This school also ignored the judge made law. About
custom, they say that the customers are not law but they are the source of law.
HISTORICAL SCHOOL:- It gives no importance to the legislation rather gives more importance to
custom. According to them the function of law in only to specify and to correct the custom into law whereas
in the modern times the importance of legislation has considerably been increased. With the coming of the
existence of the State, the legislation has also been come into existence and become a most important
source of law. The scope of legislation has become very wide in the modern times.
KINDS OF LEGISLATION:- There are two kinds of the legislation :-
1. Supreme Legislation:- It has the powers of making law and is known as supreme legislation in each
country. This power is vested in the sovereign body in India i.e. Parliament at the center and legislation in
the State.
2. Subordinate Legislation: It is inferior from supreme legislation and is indirect legislation. It takes power
to make law indirectly through Parliament, who gave him the power to make a law that is why is called
subordinate legislation authority. It is further divided into the following parts :-
i) Autonomous Laws : A group of persons for making law is known as autonomous law and body i.e
University or Boards.
ii) Judicial Rule :- means the rules made by judicial body under power owed from supreme authority i.e.
High courts or supreme court etc.
iii) Local Law: means law made by local bodies under the control of SC i.e Zila Parishad, Municipal
Corporation.
iv) Colonial Law: It is for those countries who are under the control of any other country can make laws
with the permission that country.
Executive Law: The law and the rule can be made by the executive body in the State under the power
conferred by the Sovereign/ Parliament which is also known as delegated legislation. It includes the
following origins:
I) Legislation: The legislation is the superpower to make law for a country.
II) Executive: The executive body of the nation is to impose law in the country.
III) Judiciary: The Judiciary is to explain and implies the law so passed.
Parliament in India delegates its laws making power to the executive body and this power is called legislated
or delegated legislation.
Many reform acts were handing power of making reforms, controlling of employment, development
of education. In 20th century some important matters were given to delegated legislation to restrict the State
to interfere in the daily life of the citizens.
CRITICISM:- Many of the writers has criticized this power because it gives much power to the executive
body and administration body. The legislation has passed by facing the complicated problems in the
constitution. There were some supporters also who were in the favor of this delegation of power.
REASONS FOR DELEGATED LEGISLATION
i) Lack of Time: The parliament has the shortage of time because of a Public welfare state. It has to pay
much time towards national problems.
ii) Technicality of Matters:- With the progress of society the things have become more complicated and
technical. Therefore the policy is made by the Parliament and the imposing matter is left on the masters of
it.
iii) Flexibility: Law should be flexible and according to the need & conditions of the Public along-with the
local matters which are different from area to area, So keeping in view of this reason the power is handed
over to the executive.
There are some dangers in delegations of this power:-
(i) The executive body may uses the more powers than the powers delegated by the Parliament. (ii) The
Parliament has no time to examine the rules passed by the executive under delegated legislation.
In India there is a Parliament form of legislation and it is a welfare state and the Parliament cannot go aside
from the constitution. Any cut against the constitution is void. The Main power of delegated legislation
CONCLUSION:
Power of facing an act into operation. Power to apply the Act. Power to increase or to decrease the scope
of the Act. There is a parliamentary as well as judiciary control over delegated legislation. This power in
India has also on constitutional basis.
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 INTERESTS:- 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 the preservation of the State, State as a guardian of social
interests such as Administ-Ration of trusts, charitable endowments, protection of the 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 the 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 the balancing of competing interests.
CRITICISM AGAINST POUND’S 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 Pound’s 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.”
POUND’S 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.

What do you mean legal personality and its different theories? Whether the following are legal person
:-
1. President of India 2. Council of Ministers 3. Company 4 Unborn child. 5. Animals.
 Ethical Natural law philosophers of the 17th and 18th centuries as well as the metaphysical theorists of
19th century postulated the concept of will as an essential requirement for exercising legal right. They also
believed that personality is the subjective possibility of a rightful will.

Legal personality is an artificial creation of law. Entities recognized by law are capable of being parties to
a legal relationship. A natural person is a human being whereas legal persons are artificial persons, such as
a corporation, created by law and given certain legal rights and duties of a human being; a being, real or
imaginary, who for the purpose of legal reasoning is treated more or less as a human being . All legal
persons can sue or be sued.
Theories of Juristic Personality
1. Fiction Theory – This theory was put forward by Von Savigny, Salmond, Coke, Blackstone, and Holland
etc. According to this theory, the personality of a corporation is different from that of its members. Savigny
regarded corporation as an exclusive creation of law having no existence apart from its individual members
who form the corporate group and whose acts are attributed to the corporate entity. As a result of this, any
change in the membership does not affect the existence of the corporation.
It is essential to recognize clearly the element of legal fiction involved in this process. A company is in law
something different from its shareholders or members. The property of the company is not in law the
property of the shareholders. The company may become insolvent, while its members remain rich.
Gray supported this theory by saying that it is only human beings that are capable of thinking, therefore it
is by way of fiction that we attribute ‘will’ to non-human beings through human beings who are capable of
thinking and assign them legal personality.
Wolf said that there are three advantages of this theory. It is analytical, more elastic and it makes easier to
disregard juristic personality where it is desirable.
2. Concession Theory – This theory is concerned with the Sovereignty of a State. It pre-supposes that
corporation as a legal person has great importance because it is recognized by the State or the law.
According to this theory, a juristic person is merely a concession or creation of the state.
Concession Theory is often regarded an offspring of the Fiction Theory as both the theories assert that the
corporation within the state have no legal personality except as is conceded by the State. Exponents of the
fiction theory, for example, Savigny, Dicey and Salmond are found to support this theory.
Nonetheless, it is obvious that while the fiction theory is ultimately a philosophical theory that a corporation
is merely a name and a thing of the intellect, the concession theory is indifferent to the question of the
reality of a corporation in as much as it focuses only on the source (State) from which the legal power of
the corporation is derived.
3. Group Personality Theory or Realist Sociological Theory – This theory was propounded by Johannes
Althusius and carried forward by Otto Van Gierke. This group of theorists believed that every collective
group has a real mind, a real will and a real power of action. A corporation therefore, has a real existence,
irrespective of the fact whether it is recognized by the State or not.
Gierke believed that the existence of a corporation is real and not based on any fiction. It is a psychological
reality and not a physical reality. He further said that law has no power to create an entity but merely has
the right to recognize or not to recognize an entity.
A corporation from the realist perspective is a social organism while a human is regarded as a physical
organism. This theory was favoured more by the sociologists rather than by the lawyers. While discussing
the realism of the corporate personality, most of the realist jurists claimed that the fiction theory failed to
identify the relationship of law with the society in general. The main defect of the fiction theory according
to the realist jurists was the ignorance of sociological facts that evolved around the lawmaking process.
Horace Gray, however, denied the existence of collective will. He called it a figment. He said that to get
rid of the fiction of an attributed by saying that corporation has a real general will, is to derive out one
fiction by another.
4. The Bracket Theory or the Symbolist Theory – This theory was propounded by Rudolph Ritter von
Jhering (also Ihering). According to Ihering, the conception of corporate personality is essential and is
merely an economic device by which we can simplify the task of coordinating legal relations. Hence, when
necessary, it is emphasized that the law should look behind the entity to discover the real state of affairs.
This is also similar to the concept of lifting of the corporate veil.
This group believed that the juristic personality is only a symbol to facilitate the working of the corporate
bodies. Only the members of the corporation are ‘persons’ in real sense of the term and a bracket is put
around them to indicate that they are to be treated as one single unit when they form themselves into a
corporation.
5. Purpose Theory or the theory of Zweck Vermogen - The advocates of this theory are Ernst Immanuel
Bekker and Alois von Brinz. This theory is also quite similar to the fiction theory. It declared that only
human beings can be a person and have rights. This theory also said that a juristic person is no person at all
but merely a “subjectless” property destined for a particular purpose. There is ownership but no owner.
Thus a juristic person is not constructed round a group of persons but based on an object and purpose.The
assumption that only living persons can be the subject-matter of rights and duties would have deprived
imposition of rights and duties on corporations which are non-living entities. It therefore, became necessary
to attribute ‘personality’ to corporations for the purpose of being capable of having rights and duties.
6. Hohfeld’s Theory- He said that juristic persons are creations of arbitrary rules of procedure. According
to him, human beings alone are capable of having rights and duties and any group to which the law ascribes
juristic personality is merely a procedure for working out the legal rights and jural relations and making
them as human beings.
7. Kelsen’s Theory of Legal Personality – He said that there is no difference between legal personality of a
company and that of an individual. Personality in the legal sense is only a technical personification of a
complex of norms and assigning complexes of rights and duties.
There are the following two types of persons :-
i) NATURAL PERSONS ( HUMAN PERSONS):- All human beings are natural persons but in
ancient society the slaves were not recognised as natural persons. Similarly outlaid persons, unsound
persons were not natural persons. In Hindu Law, Manu has mentioned some persons who were not
recognised as natural persons i.e. Born child, deaf persons, sanyasi and those who are living dead.
1. Unborn person: Unborn person is not a natural person because he is not in existence, but a child in
the womb is natural person because he bears the rights and duties under law. Person in the womb can
represent the position after birth. In IPC the child in the womb is considered as a natural person as soon as
any of his organ will come out from the womb.
2. If the pregnant lady gets the punishment of death sentence. She will be hanged only after delivery.
3. ANIMALS:- In ancient time the animals were legal persons but in modern time animals are not the
legal persons but in law we find come cases in which some animals have some rights and duties. Today
also the protection of animals some laws have been made which give rights to the animals. These laws
prohibit people to kill them. In this theory the personality has also been confirmed.
4. Dead Person:- In law dead person has no existence as the dead person has no personality. But in
certain cases they are considered as person in law. First if any person defames the dead person and such
defamation lowers the reputation of the family members of the dead person, then a legal action be taken
against the wrongdoer who defamed the dead person. Secondly if any person defames the dead body of
deceased person then such person is liable for damages under law.
ii) LEGAL PERSONS:- Legal person are artificial or imaginary beings to whom law attributes
personality by way of fiction, i.e. law gives them rights and duties like of natural persons, e.g. King of
England has two personalities- first a human being second as head of state, being head of state he is known
as a legal person. Similarly he President of India and the Governors of the states are legal persons.

CORPORATE PERSONALITY:-
Main form of legal personality is the corporate personality. It is of two kinds :-
1. Corporate sole: means a single body representing any state or any other object. It is called series of
the successive persons. The King of England or the President of India is the corporate sole. They represent
only one man in successive period. The post of corporate sole remains always alive while the human beings
who sit on the post may die.
2. Corporate Aggregate :- When law confers single personality to a group of person then it is called
corporate aggregate e.g. companies are registered according to law of societies or according to law of land.
These companies or corporations etc., are legal persons.
3. In the ancient time the Karta represented the whole Hindu family who was considered as legal
person. It is same as in Roman Society. It is adopted in the shape of Indian companies Act 1956. The
advantages of the corporate personality because they represent an association of persons as a single person
which is helpful in business.
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 relationship 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.
DEFINITION :- 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 one’s 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.Unlimited 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 copyright 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.

DIFFERENCE BETWEEN POSSESSION & OWNERSHIP

1. Possession is a primary stage of ownership which is in fact. Ownership is in right.
2. Possession does not give title in the property defacto exercise of a claims. While in ownership it gives
title in the property dejure recognisation.
3. Possession is a fact. Ownership is a right and superior to possession.
4. Possession tends to become ownership. Ownership tends to realize itself in to possession.
5. Possession dominion corpus and animus are necessary. Ownership they are not necessary because law
gives full rights.
6. Transfer of possession is comparatively easier. Ownership most of the cases involves a technical process
i.e. conveyance deed etc.
7. Possession is nine points of law.Ownership always tries to realize itself in possession i.e. complete thing.
Lay down the essential features of the Historical school. Discuss the views of Savigny in this regard.
OR Discuss the philosophy of law as given by Savigny under Historical School? OR Write critically
note on the following Savigny (Volkgeist Theory).
INTRODUCTION:- Jurisprudence is a subject in which the definition nature and the sources of law are
studied various writers under various schools have defined law. Austin under Analytical school says that
law is the command of sovereign. He added only the law in the study of jurisprudence. But under historical
school Savigny says that law is the general consciousness (Volkgeist) of the people. It means what the
common people think or behave is the base of law. Law shows the general nature of the common people.
This theory of Volkgeist is based on the historical method. Savigny is the father of it. According to Savigny,
“ Law is the General consciousness of the people.”
HISTORICAL SCHOOL
Historical School is a branch of Law, which studies law from the past history. It says that law is based on
the General Consciousness of people. The consciousness started from the very beginning of the society.
There was no person like sovereign for the creation of law.
The law in the ancient times was based mainly upon simple rules, regulation, custom, usages
conventions etc. These things were later on developed by the jurists and lawyers. These things were later
on converted into set form of law.
CAUSES OF COMING OF THE HISTORICAL SCHOOL
The Historical school is just opposite to the Analytical school in 18th and 19th century, the concept
of individualism came into existence. Due to this concept the revolutions came like French revolution,
Russian revolution etc. At that time Soveging montasque, Barke, Hngo were the writers who said that law
is the general will of the people or law is based upon common people and the feelings of the common
people.
Law develops like the language and manners of the society. So law has a natural character.
Law has no universal application. It differs from society to society and state to state. In the same way the
languages differ from society to society and locality to locality.
Montaque has said, “Law is the creation of climate, local situations and accidents.” According to Hugo hag,
“ Law develops like language and the manners of the society and it develops according to suitable
circumstances of the Society. The necessary thing is the acceptance and observance by society.
According to Burke, “ Law is the product of the General process. In this sense it is dynamic organ which
changes and develops according to the suitable circumstances of society.
SAVIGNY :- is considered as the main expounder or supporter of the historical school. He has
given the Volkgeist theory. According to this theory, law is based upon the general will or free will of
common people. He says that law grows with the growth of nations increases with it and dies with the
dissolution of the nations. In this way law is national character. Consciousness of people. In other words,
according to this theory law is based will or free will of common people. He says that law grows with the
growth of nation. A law which is suitable to one society may not be suitable to other society. In this way
law has no universal application because it based upon the local conditions local situations, local
circumstances, local customs, elements etc. Al these things effect law and make it suitable to the society.
The main features of the Soveging theory is :-
1. Law has a national character.
2. Law is based upon the national conditions, situations, circumstances, custom etc.
3. Law is prehistoric: means law is found and is not made, the jurists and the lawyers make it into set
form.
4. Law develops like language and manner of the society. In ancient society law was not in a natural
stage or no in a set form. Later on with the development of the society the requirements and the necessities
of the society increased. Due to this it was necessary to mould law in a set form.
IMPORTANCE OF CUSTOMS
According to Savigny customs are more important than legislation because customs come before
legislation. In other words the customs are the base of legislation.
CRITICISM OF SOVEGING’s THEORY
Savigny’s theory has been criticised on the following grounds:-
1. Inconsistency in the Theory :- Savigny asserted that the origin of law is in the popular
consciousness, and on the other hand, argued that some of the principles of Roman law were of universal
application. Thus, it is a clear-cut inconsistency in his ideas.
2. ‘Volksgeist’ not the Exclusive Sources of law :- There are many technical rules which never existed
in nor has any connection with popular consciousness.
3. Customs not Always Based on Popular Consciousness:- Many customs are adopted due to imitation
and not on the ground of their righteousness. Sometimes customs completely opposed to each other exist
in different parts of the same country which cannot be said to be reflecting the spirit of the whole
community.
4. Savigny Ignored Other Factors That Influence Law:- The law relating to trade unions is an outcome
of a long and violent struggle between conflicting interests within a society.
5. Many Things Unexplained :- Legal developments in various countries show some uniformity to
which he paid no heed. i.e.
6. What is national and what is universal.
7. Juristic Pessimism:- Soveging encouraged juristic pessimism. Legislation must accord with popular
consciousness. Such a view will not find favour in modern times. No legal system would like to make
compromise with abuses. People are accustomed to it.
CONCLUSION
From the facts mentioned above we have gone behind to see the history of the society to check that what
was the position of law in the ancient time. How and in what form law was prevailing in the society? To
find the solution of the questions the supporter of Historical school found that law is the general
consciousness of the common people or it is the free will of common people on which law developed and
converted into a set of form of law.